27218 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 266

[FRL–6975–1]

RIN 2050–AE45

Storage, Treatment, Transportation,

and Disposal of Mixed Waste

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is today finalizing its

proposal to provide increased flexibility

to facilities that manage low-level mixed

waste (LLMW) and technologically

enhanced naturally occurring and/or

accelerator-produced radioactive

material (NARM) containing hazardous

waste. The final rule reduces dual

regulation of LLMW, which is subject to

the Resource Conservation and

Recovery Act (RCRA) and to the Atomic

Energy Act (AEA). This final rule

conditionally exempts from RCRA

hazardous waste management low-level

mixed wastes during storage and

treatment. The storage and treatment

exemption in today’s rule requires the

use of tanks or containers to store or

treat the waste and applies only to lowlevel mixed waste that meets the

specified conditions and is generated

under a single Nuclear Regulatory

Commission (NRC) or NRC Agreement

State license.

Today’s rule also exempts LLMW and

hazardous NARM waste from RCRA

manifest, transportation, and disposal

requirements when specified conditions

are met. Under this conditional

exemption, the waste remains subject to

manifest, transport, and disposal

requirements under the NRC (or NRC

Agreement State) regulations for lowlevel radioactive waste (LLW) or eligible

NARM.

DATES: This final rule is effective

November 13, 2001.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC) located at

Crystal Gateway One, First Floor, 1235

Jefferson Davis Highway, Arlington,

Virginia. The Docket Identification

Number is F–2001–ML2F–FFFFF. The

RIC is open from 9:00 a.m. to 4:00 p.m.,

Monday through Friday, except for

Federal holidays. To review docket

materials you should make an

appointment by calling (703) 603–9230.

You may copy up to 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See the

SUPPLEMENTARY INFORMATION section for

information on accessing them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 (toll free), or

TDD (800) 553–7672 (hearing impaired).

In the Washington, DC metropolitan

area call (703) 412–9810 or TDD (703)

412–3323 (hearing impaired). For

information on this rule, contact Nancy

Hunt at (703) 308–8762 or Chris Rhyne

at (703) 308–8658. They are in the

Office of Solid Waste (5303W), U.S.

Environmental Protection Agency, 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460.

SUPPLEMENTARY INFORMATION: Use this

address to access the rule electronically

on the Internet: http://www.epa.gov/

epaoswer/hazwaste/radio/:

The official record for this rule will be

kept in paper form. Accordingly, EPA

transferred all comments received

electronically into paper form and

placed them in the official record,

which also includes all comments

submitted directly in writing. The

official record is the record maintained

at the RCRA Docket Information Center.

See the ADDRESSES section above.

EPA responses to comments on the

March 1, 1999 Advance Notice of

Proposed Rulemaking (64 FR 10063)

and the November 19, 1999 Storage,

Treatment, Transportation, and Disposal

of Mixed Waste; Proposed Rule (64 FR

63464) are in a response to comments

document placed in the official record

for this rulemaking.

Table of Contents

I. References

A. Acronyms used in this preamble

B. Definition of terms used in the preamble

C. Who is potentially affected by this rule?

D. What is the legal authority for today’s

final rule?

II. Summary of today’s action

A. How does this rule affect the storage and

treatment of LLMW?

B. How does this rule affect transportation

and disposal of LLMW and Eligible

NARM?

III. Why are we issuing this rule?

A. Response to dual regulation concerns

and inadequate capacity

B. Response to HWIR consent decree

C. Response to petition from USWAG and

concerns of other mixed waste generators

IV. Precedent for regulatory flexibility

A. Military Munitions Rule

B. Applying the conditional exemption

concept to mixed waste

1. Evaluation of NRC storage and treatment

requirements

2. Review of NRC disposal requirements

V. How are the final storage and treatment

provisions different from the proposal?

A. Streamlined language

B. Eligibility revisions

C. Clarifications related to inventory and

treatment

D. Recordkeeping requirements

E. Implementation

VI. Discussion and response to major

comments on the storage and treatment

conditional exemption

A. Storage and treatment—general

discussion of provisions

1. What wastes are eligible for the storage

and treatment conditional exemption?

(§ 266.225)

a. Eligibility provisions and changes from

proposed regulatory language

i. Waste is a LLMW (Excludes NARM)

ii. Waste is generated and managed by you

under a single NRC license

b. Differences from proposed eligibility for

storage and treatment exemption

c. Treatment and storage facilities

managing LLMW from other generators

2. What conditions must you meet to

qualify for and maintain a storage and

treatment exemption? (§ 266.230)

a. Initial condition to qualify—you must

notify the Director of your claim.

i. Cross reference to proposed rule

ii. Comments we received on storage and

treatment notification

b. Conditions to maintain the storage and

treatment exemption

i. Store Waste in a tank or container in

compliance with storage requirements of

your NRC or NRC agreement state

license.

ii. Store waste in compliance with

chemical compatibility requirements.

iii. Certify that personnel are trained in

hazardous waste management.

iv. Inventory and inspect your waste.

v. Maintain an accurate emergency plan.

c. Modifications to proposed storage and

treatment conditions

3. Treatment (§ 266.235)

a. Treatment clarification

b. Comments received on treatment

i. EPA should reconsider allowing

treatment

ii. EPA should broaden the scope of

treatment in the storage and treatment

exemption

4. Implementation of the storage and

treatment conditional exemption

a. Self-implementation

b. Loss of the storage and treatment

conditional exemption (§ 266.240)

c. If you lose your storage and treatment

exemption can it be reclaimed?

(§ 266.245)

d. Recordkeeping requirements for storage

and treatment exemption (§ 266.250)

e. Return to RCRA of LLMW no longer

eligible for the storage and treatment

exemption (§ 266.255)

i. How does the storage and treatment

exemption facilitate decay-in-storage?

ii. Change from proposed language

iii. Comments received on storage time

limits and decay-in-storage

iv. Effect on biennial reporting

f. Enforcement and enforcement policy

g. Storage unit closure

B. Discussion and response to comments

on storage background studies

1. Review of NRC licensing requirements

2. Research on compliance records of NRC

and NRC Agreement State licensees

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27219

3. Comparison of regulatory and

management requirements of EPA and

NRC

4. Conclusions based on our studies

5. Comments received on our studies

VII. How are the final transportation and

disposal provisions different from the

proposal?

VIII. Discussion and response to major

comments on the transportation and

disposal conditional exemption rule

A. What is the basis of the transportation

and disposal conditional exemption?

B. What wastes are eligible for the

transportation and disposal conditional

exemption?

C. What conditions must you meet to

qualify for and maintain the

transportation and disposal conditional

exemption?

1. Land Disposal Restriction treatment

standards

2. Manifest and transportation

a. If you are subject to NRC or NRC

Agreement State regulation

b. If you are not directly subject to NRC or

NRC Agreement State regulation

3. Container requirement

4. Waste disposal designation

D. What other provisions must you meet?

1. Notification

2. Recordkeeping

E. When does the transportation and disposal

exemption take effect?

F. Implementation

1. How will the transportation and disposal

conditional exemption be implemented?

2. Loss of transportation and disposal

conditional exemption

3. Reclaiming the transportation and

disposal conditional exemption

G. How did we conduct our technical

assessment for the disposal of treated

waste at low-level radioactive waste

disposal facilities?

1. Synergistic Effects

2. Groundwater monitoring

3. Site-specific variance

H. Why is financial assurance beyond 10

CFR 61 not necessary?

IX. Regulatory Impacts

A. What are the regulatory benefits of this

rule?

B. What are the costs of this rule?

C. What are the economic impacts of this

rule?

X. State Authorization

XI. Relationship with other RCRA and

Environmental Programs

A. What is the relationship of this rule

with other RCRA regulatory programs?

1. Does this rule change how you

determine if a waste is hazardous?

2. Can LLMW or Eligible NARM be a

nonhazardous waste under this rule?

3. How does the LLMW Conditional

Exemption differ from delisting under 40

CFR 260.22?

4. Will my waste analysis plan for my

RCRA-permitted TSDF change?

5. Will the final rule change how the RCRA

closure requirements apply to my

disposal facility?

6. How does the conditional exemption

relate to RCRA air emission standards?

B. What is the relationship of this rule to

other environmental programs?

1. How are CERCLA actions affected by

today’s rule?

2. How might Clean Air Act regulations be

affected?

3. How might Clean Water Act regulations

be affected?

XII. Effective Date

XIII. Regulatory Assessment Requirements

A. Executive Order 12866: Determination

of Significance

B. Executive Order 13132: Federalism

C. Executive Order 12898: Environmental

Justice

D. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

E. Executive Order 13175: Consultation

and Coordination with Indian Tribal

Governments

F. The Regulatory Flexibility Act as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996

G. Unfunded Mandates Reform Act

H. National Technology Transfer and

Advancement Act of 1995

I. Paperwork Reduction Act

J. Congressional Review Act

XIV. Supporting Documents

I. References

A. Acronyms Used in This Preamble

AEA—Atomic Energy Act of 1954, as

amended

ALARA—As Low As Reasonably Achievable

ANPRM—Advance Notice of Proposed

Rulemaking

ARAR—Applicable or Relevant and

Appropriate Requirements

BDAT—Best Demonstrated Available

Technology

CBI—Confidential Business Information

CERCLA—Comprehensive Environmental

Response, Compensation, and Liability Act

DOD—Department of Defense

DOE—Department of Energy

EEI—Edison Electric Institute

EPA—Environmental Protection Agency

(referred to as ‘‘we’’ throughout this

document)

FFCA—Federal Facilities Compliance Act

FUSRAP—Formerly Utilized Sites Remedial

Action Program

GWRL—Groundwater Risk Levels

HSWA—Hazardous and Solid Waste

Amendments of 1984

HWIR—Hazardous Waste Identification Rule

ICR—Information Collection Request

LDR—Land Disposal Restrictions

LLW—Low-Level Radioactive Waste

LLMW—Low-Level Mixed Waste

LLRWDF—Low-Level Radioactive Waste

Disposal Facility

MMR—Military Munitions Rule

NAAG—National Association of Attorneys

General

NARM-Technologically Enhanced Naturally

Occurring and/or Accelerator-produced

Radioactive Material

NGA—National Governors’ Association

NNPP—Naval Nuclear Propulsion Program

NRC—Nuclear Regulatory Commission

NTTAA—National Technology Transfer and

Advancement Act

OMB—Office of Management and Budget

OSW—Office of Solid Waste

OSWER—Office of Solid Waste and

Emergency Response

RCRA—Resource Conservation and Recovery

Act

RFA—Regulatory Fairness Act

RIC—RCRA Information Center

RQ—Reportable Quantity

SARA—Superfund Amendments and

Reauthorization Act

SBREFA—Small Business Regulatory

Enforcement Fairness Act

SQG—Small Quantity Generator

TC—Toxicity Characteristic

TRI—Toxics Release Inventory

TSDF—Treatment, Storage and Disposal

Facility

UHC—Underlying Hazardous Constituent

UMRA—Unfunded Mandates Reform Act of

1995

UMTRCA—Uranium Mill Tailings Radiation

Control Act

USWAG—Utility Solid Waste Activities

Group

UTS—Universal Treatment Standards

B. Definition of Terms Used in the

Preamble

Agreement State means a state that

has entered into an agreement with the

NRC under subsection 274b of the

Atomic Energy Act of 1954, as amended

(68 Stat. 919), to assume responsibility

for regulating within its borders

byproduct, source, or special nuclear

material in quantities not sufficient to

form a critical mass.

ANPRM (Advance Notice of Proposed

Rulemaking) refers in this document to

the advance notice published in the

Federal Register on March 1, 1999 (64

FR 10063) on mixed waste storage.

Certified Delivery means certified mail

with return receipt requested, or

equivalent courier service or other

means that provides the sender with a

receipt confirming delivery.

Director refers to the definition in 40

CFR 270.2.

‘‘Eligible Naturally Occurring and/or

Accelerator-produced Radioactive

Material (NARM)’’ is NARM that is

eligible for the Transportation and

Disposal Conditional Exemption. It is a

NARM waste that contains RCRA

hazardous waste, meets the waste

acceptance criteria of, and is allowed by

State NARM regulations to be disposed

of at a LLRWDF licensed in accordance

with 10 CFR part 61 or NRC Agreement

State equivalent regulations.

Exempted waste means a waste that

meets the eligibility criteria in § 266.225

and meets all of the conditions in

§ 266.230, or meets the eligibility

criteria in § 266.310 and complies with

all of the conditions in § 266.315. Such

waste is conditionally exempted from

the regulatory definition of hazardous

waste described in 40 CFR 261.3.

Generator refers to the definition in

40 CFR 260.10.

27220 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

Hazardous waste means any material

which is defined to be hazardous waste

in accordance with 40 CFR 261.3,

‘‘Definition of Hazardous Waste.’’

Legacy waste means waste that was

generated by past activities and has

been in storage beyond RCRA

accumulation time periods in 40 CFR

262.34 because appropriate treatment

technologies have not been developed,

or treatment and disposal capacity has

not been available.

License means a license issued by the

Nuclear Regulatory Commission, or

NRC Agreement State, to users that

manage radionuclides regulated by

NRC, or NRC Agreement States, under

authority of the Atomic Energy Act of

1954, as amended.

Low-Level Mixed Waste (LLMW)

means a waste that contains both lowlevel radioactive waste and RCRA

hazardous waste.

Low-Level Radioactive Waste (LLW) is

a radioactive waste which contains

source, special nuclear, or byproduct

material, and which is not classified as

high-level radioactive waste, transuranic

waste, spent nuclear fuel, or byproduct

material as defined in section11e.(2) of

the Atomic Energy Act. (See also NRC

definition of ‘‘waste’’ at 10 CFR 61.2)

Mixed Waste defined in RCRA as

amended by the Federal Facility

Compliance Act of 1992, means a waste

that contains both RCRA hazardous

waste and source, special nuclear, or

byproduct material subject to the

Atomic Energy Act of 1954, as amended.

Naturally Occurring and/or

Accelerator-produced Radioactive

Material (NARM) means radioactive

materials that (1) Are naturally

occurring and are not source, special

nuclear, or byproduct materials (as

defined by the AEA) or (2) are produced

by an accelerator. NARM is regulated by

the States under State law, or by DOE

(as authorized by the AEA) under DOE

orders.

NRC or NRC Agreement State license

means a license issued by the Nuclear

Regulatory Commission or an NRC

Agreement State under authority

granted by the AEA.

NUREG refers to Nuclear Regulatory

Commission publications and

documents that include formal staff

reports, which cover a variety of

regulatory, technical and administrative

subjects; brochures, which include

manuals, procedural guidance,

directories and newsletters; conference

proceedings and papers presented at a

conference or workshop; and books,

which serve a technical purpose or an

industry-wide needs. Many of the

NUREG documents are listed on the

NRC Home Page (http://www.nrc.gov).

On-site is defined in the RCRA

regulations at 40 CFR 260.10, et seq.

Tie-down conditions include NRC

guidance documents and policies

concerning storage and treatment of

LLW which become part of the NRC or

NRC Agreement State radioactive

materials license by reference.

We or us within this preamble means

the EPA.

You means a generator, treater, or

other handler of low-level mixed waste

or Eligible NARM.

C. Who Is Potentially Affected by This

Rule?

The conditional exemption for lowlevel mixed waste (LLMW) storage and

treatment applies to any mixed waste

generator that has an NRC or NRC

Agreement State license to possess

radioactive material or to operate a

nuclear reactor, so long as the waste is

eligible and the generator can satisfy the

conditions set forth in today’s rule.

The transportation and disposal

exemption applies to generators of

LLMW and Eligible NARM so long as

they meet all specified conditions.

Facilities potentially affected by this

action include those identified in Table

1.

TABLE 1.—FACILITIES POTENTIALLY AFFECTED

Category Examples of facilities

Nuclear Utilities ........................................................................ Firms that generate electricity using nuclear fuel as the source of energy and that

are licensed by the NRC.

Universities/Academic Institutions ............................................ Academic institutions at all levels that are licensed by NRC, or an NRC Agreement State, to use radionuclides for academic, biomedical, and research purposes.

Medical Facilities ...................................................................... Hospitals, medical laboratories, doctors’ offices, or clinics that are licensed by

NRC or an NRC Agreement State to use radionuclides for health care purposes.

Industrial Establishments ......................................................... Private companies and institutions, including pharmaceutical companies, and research and development institutions that are licensed by NRC or an NRC

Agreement State to use radionuclides.

Government Facilities ............................................................... Facilities, installations and laboratories operated by State Agencies, and by some

Federal Agencies, including, but not limited to, the National Institutes of Health,

the National Institute of Standards and Technology, the Veterans Administration and the Department of Defense (except the Naval Nuclear Propulsion Program).

Disposal facilities ...................................................................... Low-level radioactive waste disposal facilities licensed under 10 CFR part 61or

by an NRC Agreement State.

The preceding table is not intended to

be exhaustive, but rather to provide

examples of facilities likely to be

affected by this rule. To determine

whether you are affected by this

regulatory action, you should carefully

examine the applicability criteria in this

preamble. If you have any questions

regarding the applicability of this

section to a particular entity, consult the

persons listed under FOR FURTHER

INFORMATION CONTACT.

D. What Is the Legal Authority for

Today’s Final Rule?

The statutory basis for this rule is in

sections 1006, 2002(a), 3001–3009 and

3013 of the Solid Waste Disposal Act of

1970, as amended by the Resource

Conservation and Recovery Act of 1976

(RCRA), the Hazardous and Solid Waste

Amendments of 1984 (HSWA), and the

Federal Facility Compliance Act of 1992

(FFCA), 42 U.S.C. 6905, 6912(a), 6921–

6929 and 6934.

II. Summary of Today’s Action

In today’s rule we are promulgating a

conditional exemption for the storage,

treatment, transportation, and disposal

of low-level mixed waste (LLMW), and

Eligible NARM where specified. As a

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27221

waste generator and handler who meets

certain conditions specified in 40 CFR

266.230 or 266.315, (a) your LLMW

could be exempt from most RCRA

Subtitle C storage and treatment

regulations, and (b) your LLMW and

Eligible NARM could be exempt from

most RCRA Subtitle C manifesting,

transportation, and disposal regulations.

Thus, LLMW, and Eligible NARM where

specified, may be conditionally

exempted from most RCRA Subtitle C

requirements through much of the waste

management process.

To claim a conditional exemption you

must notify the regulatory agencies

specified that you meet the conditions.

However, if information you provide on

your notification is incomplete or

inaccurate, your claim for a conditional

exemption is nullified subjecting your

waste to RCRA Subtitle C regulation.

A. How Does This Rule Affect the

Storage and Treatment of LLMW?

Our rule will allow qualified

generators of LLMW to claim a

conditional exemption from the

regulatory RCRA definition of

hazardous waste for mixed wastes

stored and treated by the generator

under a single NRC or NRC Agreement

State license. This conditional

exemption acknowledges that NRC

regulation for low-level waste (LLW)

provides protective regulation of storage

and treatment of mixed waste in tanks

and containers. This regulatory

flexibility applies only to generators of

low-level mixed waste who are licensed

by NRC or an NRC Agreement State.

Once your LLMW is removed from

storage or treatment for transportation or

disposal, it is subject to RCRA Subtitle

C regulation unless it qualifies for the

transportation and disposal exemption.

Under this rule, if you fail to meet any

of the conditions in § 266.230, your

LLMW is no longer exempted from the

regulatory definition of hazardous

waste. As a hazardous waste, your

LLMW is subject to RCRA Subtitle C

regulation.

B. How Does This Rule Affect

Transportation and Disposal of LLMW

and Eligible NARM?

Today’s rule will allow generators of

LLMW and Eligible NARM to claim a

conditional exemption from the RCRA

regulatory definition of hazardous waste

for the manifesting, transportation, and

disposal of these wastes. (Throughout

this document when we refer to the

conditional exemption for manifest,

transportation and disposal of LLMW,

we also mean Eligible NARM.) If your

wastes meet the eligibility requirements

and if you meet the specified conditions

for the transportation and disposal

exemption, then you may manage your

wastes as you would solely radioactive

wastes. This conditional exemption

acknowledges the protection provided

by NRC and NRC Agreement States

requirements for the manifest,

transportation and disposal of the

radioactive portion of the eligible waste.

III. Why Are We Issuing This Rule?

A. Response to Dual Regulation

Concerns and Inadequate Capacity

Mixed waste is regulated under

multiple authorities: RCRA (for the

hazardous component), as implemented

by EPA or Authorized States; and AEA

(for the source, special nuclear, or byproduct material component), as

implemented by the NRC or NRC

Agreement States (for commerciallygenerated mixed wastes), or the

Department of Energy (DOE) (for

defense-related mixed waste generated

by DOE activities). NARM-contaminated

hazardous waste is also regulated under

multiple authorities: RCRA (for the

hazardous component); and State law

(for the NARM component), as

implemented by a State agency

designated by State law. EPA and NRC

recognize that joint oversight of mixed

waste has been cumbersome, in part

because of the different regulatory

approaches of the agencies, and has

complicated safe management and

disposal of mixed waste. With this rule

we are responding to the concerns of

mixed waste generators regarding the

burden and duplication of dual

regulation, as well as concerns about

reducing the radiation exposures of

workers managing mixed wastes. (See

discussion related to decay-in-storage in

section VI. A. 4. e. i.)

In addition, mixed waste generators

have expressed concerns about limited

LLMW treatment and disposal options

which can put them in violation of

RCRA. These concerns originated

because RCRA section 3004(j) generally

prohibits the storage of hazardous

wastes that are also subject to RCRA

land disposal restrictions unless the

storage is ‘‘solely for the purpose of the

accumulation of such quantities of

hazardous waste as are necessary to

facilitate proper recovery, treatment or

disposal.’’ Under EPA’s regulation

codifying RCRA section 3004(j), we

presume that the initial year of

hazardous waste storage is for the sole

purpose of accumulating a quantity

necessary to facilitate treatment and

disposal. However, if you store LLMW

on-site for more than one year, you have

the burden of proving that the storage is

for the allowed purpose.

Based on our information collection

effort in the ANPRM, published March

1, 1999 in the Federal Register, and

information from mixed waste

generators, we found that treatment

technology and disposal capacity for

certain LLMW are not always available.

We also found that, in some cases,

commercial mixed waste treatment

facilities have not been willing to accept

LLMW for treatment unless there are

also disposal options. When disposal

options do not exist, generators of

LLMW store the waste beyond a year.

Because of limited LLMW disposal

capacity, we believe it is appropriate to

provide safe and legal alternatives for

the disposal of LLMW.

We assessed NRC regulations for

management of LLW and compared

them with EPA’s regulations for

hazardous waste storage, treatment,

transportation, and disposal. Our review

found that given the NRC’s regulatory

controls, human health and

environmental protection from chemical

risks would not be compromised if we

deferred to many of the NRC low-level

radioactive waste management

practices. Given NRC waste

management, we do not believe that the

addition of RCRA Subtitle C regulation

is necessary to protect human health or

the environment. Through this rule, we

are providing regulatory relief intended

to facilitate the disposal of certain

LLMW (such as legacy waste requiring

long-term storage due to lack of

treatment technology and disposal

capacity), that has been stored on-site by

NRC licensees as mixed waste subject to

both RCRA permitting and NRC

licensing requirements.

Ninety individuals and organizations

commented on the proposal. In general,

utilities, nuclear trade organizations,

industry, universities, and some States

supported the rule; private citizens,

waste treatment and disposal facilities,

environmental groups, and other States

and universities opposed the rule or

expressed concerns. We discuss the

major comments of both supporting and

opposing views by topic below.

In the preamble of the proposal we

specifically sought comment on dual

regulation. (See 64 FR 63469.) Of the 90

total comments, 77 from organizations

or individuals addressed dual

regulation, 61 of which expressed

support for a conditional exemption of

mixed waste. Several stated that the

exemption would provide important

and necessary regulatory flexibility for

LLMW. Others stated that EPA has

developed a sound and compelling

technical record for both the storage and

treatment of LLMW, as well as for offsite transportation and disposal of

27222 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

LLMW and Eligible NARM in qualified

low-level radioactive waste disposal

facilities.

Our approach for addressing the issue

of dual regulation of LLMW was

opposed in whole or part by 16

commenters. Three commenters felt that

EPA should establish a Memorandum of

Understanding (MOU) with the Nuclear

Regulatory Commission to transfer

regulatory authority for mixed waste to

NRC and Agreement States. However,

an MOU would not allow EPA to

relinquish jurisdiction over the

hazardous portion of mixed waste. In

addition, these commenters did not

suggest how the NRC management

framework might be changed to provide

safer treatment and disposal of

hazardous wastes. Our regulatory

approach provides flexibility for mixed

waste storage, treatment, transportation

and disposal which addresses dual

regulation concerns, and received the

support of many generators who have

raised the issue of dual regulation to us

in the past.

B. Response to HWIR Consent Decree

The Edison Electric Institute (EEI), the

Utility Solid Waste Activities Group

(USWAG), and the Nuclear Energy

Institute (NEI)—trade groups

representing commercial nuclear power

plants—were parties to settlement

discussions regarding the deadline for

the final Hazardous Waste Identification

Rulemaking, ETC v. Browner, C.A. No.

94–2119 (TFH) (D.D.C.). On April 11,

1997, the court entered a consent decree

which required EPA to propose

revisions to the mixture and derivedfrom rules, 40 CFR 261.3(a)(2)(iv) and

(c)(2)(i), and to seek comment on eleven

items listed in the decree with respect

to those revisions. (See EPA Consent

Decree, Ref. 1.) One of the eleven items

concerns an exemption from RCRA

hazardous waste disposal regulations for

low-level mixed waste generated by

nuclear power plants where such waste

is also subject to regulation by the

Nuclear Regulatory Commission. (See

Side-bar letter, Ref. 2.) The consent

decree required that the proposal also

request comment on other regulatory

relief for these wastes, if EPA finds that

any other relief would be appropriate.

(See ANPRM for further information.)

This decree requires that EPA take final

action on the proposal by April 30,

2001.

Today’s rule provides regulatory relief

to LLMW generators and other

regulatory relief as described in this

document. In a separate notice, EPA is

revising the mixture and derived-from

rules. (See Docket #F–2001–WHWF–

FFFFF.) The revision includes an

exemption from the mixture and

derived-from rule for low-level mixed

waste that is managed in compliance

with the requirements in part 266,

subpart N. These two final rules satisfy

EPA’s obligations under the consent

decree.

C. Response to Petition From USWAG

and Concerns of Other Mixed Waste

Generators

The Utility Solid Waste Activities

Group (USWAG), a national

organization of power companies,

petitioned the U.S. EPA on January 13,

1992 to amend RCRA Subtitle C

regulations governing storage of mixed

wastes. The USWAG organization cited

difficulties in complying with RCRA

Subtitle C regulations because of limited

treatment technology and disposal

capacity for some mixed wastes. (See

discussion in ANPRM for additional

information.) Today’s action is our

response to the USWAG petition.

Policy of Lower Enforcement Priority for

Mixed Waste

Recognizing the limitations of

available technology and capacity, in

1991 EPA issued a policy on a lower

priority for enforcement of the storage

prohibition contained in 3004(j) of

RCRA for certain waste streams. (See 56

FR 42730; August 29, 1991.) Section

3004(j) prohibits storage of a waste

restricted from land disposal (including

the hazardous component of mixed

waste), except for the purposes of the

accumulation of such quantities of

hazardous waste necessary to facilitate

proper recovery, treatment, or disposal.

The lack of adequate treatment

technology or disposal capacity for

some mixed waste streams necessitated

mixed waste storage in violation of land

disposal restrictions. The policy stated

that violators who were faced with the

impossibility of complying with the

RCRA regulations, had a RCRA storage

permit, and were storing their wastes in

an environmentally responsible manner

would be a low enforcement priority for

EPA. Because treatment technology or

disposal capacity was still unavailable

for some mixed wastes, we extended

this policy in 1994, 1996 and again in

1998. The policy expires on October 31,

2001. (See 63 FR 59989, November 6,

1998.)

This rulemaking is intended to

provide flexibility to generators of

mixed waste where EPA requirements

are to a large extent duplicative of

performance standards required by the

NRC or NRC Agreement States. With the

promulgation of this rule, EPA is stating

its determination that facilities that

comply with certain criteria can safely

store mixed waste at NRC licensed

facilities. The prohibition for storage in

3004(j) will not apply to waste that both

meets the eligibility criteria of, and is

stored in accord with the conditions of,

this rule. Thus, the federal government

is providing with this rule a potential

option for mixed waste generators to

store mixed wastes legally. We

recognize that States are not required to

become authorized for this rule. States

may choose to be more stringent than

the federal RCRA program. However,

since many States have followed EPA’s

lead on the enforcement policy, we

anticipate that most states will choose to

address the storage problem of concern

to mixed waste generators by adopting

this rulemaking.

IV. Precedent for Regulatory Flexibility

A. Military Munitions Rule

The flexibility of this rule is modeled

on the conditional exemption developed

for waste military munitions in the

Military Munitions Rule published

February 12, 1997 (62 FR 6622–6657).

(See 40 CFR part 266, subpart M.) The

Military Munitions Rule (MMR)

identifies when conventional and

chemical military munitions become

hazardous wastes subject to RCRA

Subtitle C. In the MMR, EPA developed

a conditional exemption to provide

regulatory flexibility to storers and

transporters of non-chemical waste

military munitions. EPA provided the

exemption for waste military munitions

because the Defense Department

Explosives Safety Board (DDESB)

standards apply to and are binding on

the military, and there is an institutional

oversight process within the military.

(See 62 FR at 6636.) Under the

conditional exemption, non-chemical

waste military munitions that normally

meet the definition of ‘‘hazardous

waste’’ are exempt from the regulatory

definition of hazardous wastes under

RCRA Subtitle C so long as the facilities

storing or transporting munitions meet

all of the conditions listed in the rule.

(For the complete text of the Military

Munitions Rule preamble, see 62 FR

6621, February 12, 1997.)

The U.S. Court of Appeals for the D.C.

Circuit upheld all aspects of the MMR

in Military Toxics Project v. EPA, 146

F.3d 948 (D.C. Cir. 1998). The court

agreed with EPA that ‘‘Congress has not

spoken directly to the issue of

conditional exemption,’’ and upheld as

reasonable EPA’s interpretation that

3001(a), which requires the

Administrator to promulgate criteria for

identifying and listing wastes that

should be subject to Subtitle C

requirements, allows the use of

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27223

conditional exemptions. (Id.) The court

also agreed with EPA that ‘‘where a

waste might pose a hazard only under

limited management scenarios, and

other regulatory programs already

address such scenarios, EPA is not

required to classify a waste as hazardous

waste subject to regulation under

Subtitle C.’’ (Id. at 958.) For a more

complete explanation of the legal basis

for establishing a conditional exemption

under RCRA, see the preamble to the

Military Munitions Rule at 62 FR 6636.

Today’s final rule recognizes the

safeguards which the NRC or NRC

Agreement State regulatory program for

low-level radioactive wastes already

provides during storage, treatment,

transportation and disposal. State

radiation programs address NARM

wastes under separate authorities.

B. Applying the Conditional Exemption

Concept to Mixed Waste

In the Military Munitions Rule, EPA

conditionally exempted from RCRA

Subtitle C regulation stored waste

military munitions and waste military

munitions transported from one military

owned or operated facility to another

that are subject to DDESB standards. We

take a comparable approach for

generators of LLMW in this rule, which

provides a conditional exemption for

the storage, treatment, transportation,

and disposal of LLMW that is subject to

NRC or NRC Agreement State

regulation. The exemption is based on

the NRC or the NRC Agreement State

licensing process and regulatory

requirements, and their adequacy in

addressing risks from both radioactivity

and RCRA hazardous constituents. By

promulgating a conditional exemption,

we can eliminate redundant or dual

requirements where wastes are managed

safely; the NRC-required safeguards are

in place (for example, inspection,

recordkeeping, reporting); and penalties

or other consequences may be imposed

if the governing regulatory framework is

not followed. Taking these features

together, EPA concludes that these

wastes should not be regulated under

Subtitle C, because the NRC regulatory

framework ensures protection of human

health and the environment.

1. Evaluation of NRC Storage and

Treatment Requirements

The NRC was created as an

independent agency by the Energy

Reorganization Act of 1974, which

abolished the Atomic Energy

Commission (AEC) and moved the

AEC’s regulatory function to NRC. This

act, along with the Atomic Energy Act

of 1954, as amended, provides the

foundation for regulation of the nation’s

commercial nuclear power industry.

The NRC’s scope of responsibility

includes regulation of commercial

nuclear power reactors; non-power

research, test, and training reactors; fuel

cycle facilities; medical, academic, and

industrial uses of nuclear materials; and

the transport, storage, and disposal of

nuclear materials and waste.

NRC regulations are issued under the

United States Code of Federal

Regulations (CFR) Title 10, Chapter 1.

Regulation of LLMW is addressed

through the issuance of regulations

including those found in 10 CFR parts

20, 30, 35, 40, 50, 61, 70, and 71. NRC

interprets these regulations and offers

guidance on how licensees should

comply with them through numerous

Criteria, Regulatory Guides, Generic

Communications, and NRC Reports.

Licenses that are issued on the basis

of NRC’s regulatory system allow

entities to manage nuclear materials

including wastes. Conditions of these

licenses are enforced by NRC’s Office of

Enforcement, which oversees, manages,

and directs the development and

implementation of policies and

programs for enforcement of NRC

requirements. The system in place

provides a comprehensive framework

for the safe management of the various

forms of waste generated by the nuclear

industry, including LLMW. The NRC

shares with EPA a common

responsibility to protect the public

health and safety.

In considering a conditional

exemption from RCRA Subtitle C

regulation for storage and treatment of

low-level mixed waste generated by an

NRC or NRC Agreement State licensee,

we evaluated certain key factors. First,

we reviewed the licensing requirements

and NRC standards for the storage and

treatment of LLW to determine whether

NRC regulation of stored low-level

waste adequately protects against

possible risks from RCRA hazardous

constituents in mixed waste. Although

NRC regulation and oversight are

designed primarily to address risks

posed by radiation, the NRC, the

regulated industry, and others have

argued that these standards largely

duplicate RCRA requirements and also

protect against risks to human health

and the environment posed by

hazardous waste.

Second, we compared NRC low-level

waste and EPA hazardous waste storage

and treatment requirements. (See Ref. 4,

EPA Comparison of Storage and

Treatment Requirements, for details.)

We found that activities performed by a

licensee to safely store, treat, or address

the release of the radioactive component

of mixed waste also resulted in the safe

management of the hazardous waste of

the LLMW matrix. This result is

attributable to the nature of mixed

wastes—that is, migration of hazardous

constituents does not occur except in

the presence of radionuclides. Our

analysis was conducted independently

of similar studies performed by

USWAG, the Electric Power Research

Institute, and the Nuclear Management

and Resources Council, Inc. (who

represent members of the power

generation industry). (See proposal F–

1999–ML2P–FFFFF, Ref. 6 and 16 for

the industry studies.) These other

studies concluded that the technical

design and operating standards of the

NRC meet or exceed RCRA standards in

virtually all respects, though the other

studies note differences in

implementation and emphasis (for

example, NRC requirements are

performance based whereas EPA’s

requirements under RCRA are

prescriptive. NRC licenses are

specifically tailored to the site, whereas

RCRA permits are based on national

standards.)

Third, we reviewed the compliance

history of licensed facilities. We

investigated a variety of NRC produced

violation summaries for the years 1993–

1998. These reports included: Office of

Enforcement Annual Report-Fiscal Year

1996; Office of Enforcement Annual

Report-Fiscal Year 1997; and Escalated

Enforcement Actions Issued Since

March 1996 for Reactor Licensees (Last

Updated August 14, 1998). For

Agreement States, Integrated Materials

Performance Evaluation Program NRC

Reviews were analyzed for 17 States.

We looked at these and other records for

documentation of incidents involving

the storage and on-site treatment of

radioactive wastes by LLMW generators

who are licensed users of radionuclides.

Our review found that, with few

exceptions, the sampled NRC licensed

facilities had excellent low-level waste

management safety records. (See

proposal F–1999–ML2P–FFFFF, Ref. 3,

EPA’s compliance record review.) Based

on our evaluation of these factors, we

concluded that low-level mixed wastes

stored and treated at these facilities are

safely managed and not likely to pose a

threat to human health and the

environment.

Two environmental groups suggested

that EPA should undertake research on

the potential synergistic effects of

radioactive and hazardous constituents

in wastes with the goal of making

exposure standards for protecting

individuals more restrictive. We note

that NRC requires licensed facilities to

manage LLW (in both the design of the

facility and in its standard operating

27224 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

procedures) to prevent releases,

explosions, fume generation, accidental

ignition, and reaction of ignitable wastes

that could result from improper mixing

or from instability of some LLW. In

addition, one of the conditions for the

storage exemption is that generators

must store low-level wastes in tanks or

containers in compliance with chemical

compatibility requirements, to prevent

chemical interactions. (See § 266.230

[b][2].) Management of the waste

adhering to these requirements will

avoid potential synergistic effects

during storage, or avoid impairment to

human health or the environment. The

disposal exemption requires both

treatment to the levels specified in the

Land Disposal Restrictions, and

placement in specific types of

containers prior to disposal at a LowLevel Radioactive Waste Disposal

Facility. Moreover, existing NRC

requirements prohibit the disposal of

liquid wastes in LLRWDFs. The Agency

concludes that potential synergistic

effects have been addressed because

these conditions must be met to qualify

for and maintain a conditional

exemption, and the conditions are

designed to ensure no contact, or

minimal contact, between the waste

materials and human and

environmental receptors. Finally, EPA is

not aware of any such synergistic effects

being documented for the waste types

being exempted, and has no reason to

suspect them. The current system of

dual regulation does not take any such

effects into account. Should EPA

determine in the future that such effects

exist, it could re-evaluate the

protectiveness of the NRC regime. In the

meantime, EPA believes the conditional

exemption will be as protective as the

current system.

2. Review of NRC Disposal

Requirements

In considering the transportation and

disposal conditional exemption, we also

evaluated certain key factors. First, we

compared EPA’s and DOT’s hazardous

waste manifest and transportation

requirements with NRC’s and DOT’s

low-level radioactive waste manifest

and transportation requirements. We

found that the waste tracking and

transportation requirements for LLW are

either equal to or more restrictive than

those required by EPA for treated RCRA

hazardous waste. DOT concurred with

our assessment that the transportation

requirements for LLW are equivalent, if

not more restrictive than, the

transportation requirements for a RCRA

hazardous waste that has been treated

and has met LDR treatment standards.

(See Ref. 19, Discussion with DOT on

Mixed Waste Transportation on August

1999.) As a result, requiring compliance

with RCRA hazardous waste manifest

and transportation requirements would

be redundant and, therefore,

unnecessary.

Second, we compared EPA’s disposal

requirements with NRC’s LLW disposal

practices and requirements. We

reviewed NRC requirements and the

practices of low-level waste disposal

facilities to determine if NRC provides

levels of human health and

environmental protection similar to

RCRA Subtitle C protection for

permitted disposal facilities. (See

proposal F–1999–ML2P–FFFFF, Ref. 7,

Technical assessment of LLRWDFs.)

Our review indicates that NRC

regulations for disposal facilities

provide protection comparable to that

provided by RCRA particularly given

that we are requiring that the RCRA

hazardous constituents be treated to

LDR treatment standards, and that the

waste be placed in certain types of

containers prior to disposal. We believe

that LLMW and Eligible NARM treated,

placed in containers, and disposed of at

these facilities are not likely to pose a

threat to human health and the

environment. Therefore, RCRA Subtitle

C regulation for these wastes is not

necessary to ensure protection of human

health and the environment.

V. How Are the Final Storage and

Treatment Provisions Different From

the Proposal?

The final rule contains a number of

language changes to respond to

comments, including changes to make

the wording for storage and treatment

exemption more closely parallel to the

wording for transportation and disposal

exemption. However, the final rule

maintains the conditional exemption for

storage, treatment, transportation, and

disposal. The changes to our proposal

for storage and treatment are highlighted

below, and are discussed in greater

detail in Section VI of this preamble.

The changes to our proposal for

transportation and disposal are

highlighted in Section VII, and are

discussed in greater detail in Section

VIII of this preamble.

A. Streamlined Language

In the final rule we have streamlined

the eligibility criteria and conditions to

remove overlapping and, according to

some commenters, redundant language.

For example, in our proposal we had

said that to be eligible for this

conditional exemption LLMW must be

managed under an NRC or NRC

Agreement State license. We also had

listed a condition that you must have a

valid NRC license. We have dropped

this overlapping language. In another

example, our proposal included a

condition which stated that you must

meet the eligibility criteria. However, it

is obvious that if you do not meet the

eligibility criteria you cannot claim the

exemption. The condition was not

necessary as the threshold eligibility

criteria must be met first. We note that

while eligibility criteria are considered

threshold matters, your waste must

continue to meet the eligibility criteria

to remain exempt.

We moved two of the eligibility

criteria we specified in our proposal.

(See 64 FR 63498, § 266.225.) These

criteria were related to waste storage

which meets the requirements of your

license for storing LLW and storage in

compliance with chemical compatibility

requirements. These provisions appear

in the final rule in § 266.230 as

conditions that you must meet and

maintain.

B. Eligibility Revisions

In the final rule we have specified

that LLMW eligible for the exemption

must be generated and managed by you

under a single NRC or NRC Agreement

State license. This language replaces the

proposed language ‘‘stored on-site.’’ The

change was based upon comments

received on this provision. (See indepth discussion in Section VI of this

preamble.)

C. Clarifications Related to Inventory

and Treatment

Commenters indicated the language

we used in the proposal related to the

frequency of inventory and the types of

acceptable treatment was not clear. In

the final rule we have clarified that an

annual, not quarterly, inventory is

required. Regarding treatment, we have

clarified that types of treatment

allowable are those that can be done in

a tank or container and are allowed

under the terms of the NRC or NRC

Agreement State license. These

clarifications have been made in

§ 266.230 and § 266.235.

D. Recordkeeping Requirements

In our proposal, recordkeeping

requirements appeared in two places.

We have removed the recordkeeping

requirement under the inventory

condition proposed as § 266.230(f) and

consolidated all recordkeeping

requirements in § 266.250 of the final

rule. Commenters had found the

references in our proposal redundant

and unclear. We have also clarified that

you must keep records relating to

meeting the eligibility criteria, and

meeting and maintaining the conditions.

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27225

These records form the basis of your

claim for the exemption.

In addition, compliance with NRC or

NRC Agreement State recordkeeping

provisions relating to the storage of your

waste is no longer a condition in

§ 266.230. Instead, we are requiring you

to keep these records as a RCRA

requirement in § 266.250 under the

authority of sections 2002 and 3007 of

RCRA. This change responds to

comments received, and means that you

no longer automatically lose the

conditional exemption for your waste

for failure to maintain records, though

you may be subject to enforcement to

ensure compliance and may be assessed

RCRA fines and penalties if your

records are not complete and accurate.

If you fail to meet the recordkeeping

requirements, you must take prompt

action to return to compliance and to

correct inaccurate information in your

records. You must be able to

demonstrate with your records that your

waste is eligible and you meet the

conditions for the exemption. In

addition we included in § 266.240

language from the proposal (at

§ 266.245) relating to terminating your

conditional exemption for serious or

repeated noncompliance with any

requirement of subpart N. (See further

recordkeeping discussion in Section

VI.A.4.d.)

E. Implementation

Commenters were confused regarding

how RCRA closure applied to existing

storage units. We have clarified that

interim status and permitted facilities

that have storage units which are used

only for storage of conditionally exempt

low-level mixed waste do not need to go

through RCRA closure, but should seek

modification of their permits or revise

their interim status closure plans after

the date this conditional exemption goes

into effect. (See detailed discussion in

VI.A.4.g.)

VI. Discussion and Response to Major

Comments on the Storage and

Treatment Conditional Exemption

A. Storage and Treatment—General

Discussion of Provisions

We are promulgating today a

conditional exemption from RCRA

Subtitle C requirements for storage and

treatment of low-level mixed waste in

qualified tanks or containers. (See 51 FR

10168, March 24, 1986 regarding waste

treatment in tanks or containers.) This

regulatory flexibility for storage and

treatment applies to any generator of

LLMW who is licensed by NRC or an

NRC Agreement State to manage

radioactive materials. Note, the storage

and treatment conditional exemption is

available only to low-level mixed wastes

generated under a single NRC or NRC

Agreement State license. The

conditional exemption for LLMW

applies only while the waste is stored

and/or treated in tanks or containers by

the generator, and exempts the stored or

treated waste from the regulatory

definition of hazardous waste found in

40 CFR 261.3. Prior to storage and/or

treatment, all relevant regulations

related to hazardous waste generators in

40 CFR part 262 apply. In most cases,

where exempted wastes are immediately

placed in storage, subpart A would

apply. When waste is removed from

storage or treatment and is transported

to any facility with another NRC license

(other than to a LLRWDF under the

provisions of 40 CFR 266.305), 40 CFR

262.30 through 262.34 and part 262

subpart D will apply.

LLMW must be eligible under

§ 266.225, and generators must meet the

conditions listed in § 266.230. The

storage and treatment exemption will be

valid only as long as the eligibility

criteria and conditions are met.

During storage or allowable treatment

of conditionally exempted LLMW, the

generator will not be required to have a

RCRA permit for the conditionally

exempt waste or meet other RCRA

Subtitle C requirements. The storage

and treatment conditional exemption

applies only to LLMW and does not

affect other RCRA hazardous wastes a

licensee may generate. A RCRA permit

may be required for management of

those other wastes depending on the

circumstances. In such cases, facilities

might decide to identify and locate

conditionally exempt stored wastes

separately from other stored wastes

(whether storage by the generator for

less than 90 days or permitted storage).

In the regulatory language, we

describe which wastes are eligible for

the storage and treatment conditional

exemption (§ 266.225), what conditions

a generator must meet to qualify for the

exemption (§ 266.230), and how the

exemption will be implemented

(§ 266.240 through § 266.260). Under

this rule, if you fail to meet the specified

conditions, your LLMW is no longer

exempted from regulation as a

hazardous waste.

1. What Wastes Are Eligible for the

Storage and Treatment Conditional

Exemption? (§ 266.225)

Low-level mixed waste meeting the

definition in § 266.210 is eligible for a

storage and treatment conditional

exemption if it is generated and

managed by you under a single NRC or

NRC Agreement State license. Mixed

waste generated at a facility with a

different license number and shipped to

your facility for storage or treatment

requires a RCRA permit and is ineligible

for this exemption. The types of

facilities that may have LLMW eligible

for the storage and treatment exemption

include nuclear power plants, fuel cycle

facilities, pharmaceutical companies,

medical and research laboratories,

universities and academic institutions,

hospitals, and some industrial facilities.

a. Eligibility provisions and changes

from storage and treatment proposed

regulatory language. The eligibility

provision covers two prerequisites that

must be met for the waste to be eligible

for the storage and treatment

conditional exemption:

1. The waste must be a LLMW;

2. The waste must be generated and

managed by you under a single NRC or

NRC Agreement State license.

We realize there may be instances

where one NRC or NRC Agreement State

license number might apply to more

than one non-contiguous unit. (For

example, a generator such as a

university may have a storage unit that

is not contiguous to the main generating

campus, but has the same NRC license

number.) In the event that a generator

must ship to another non-contiguous

storage area under the same NRC

license, the rule allows for the shipment

of the waste either from the point of

generation to the storage location, or

from one storage point to another

storage or treatment point with the same

NRC license number. In the event of a

shipment, the hazardous waste

manifesting requirements remain in

effect, as the eligible waste is still a

hazardous waste until such time as it is

place in the accumulation storage area.

Storage areas will not need a RCRA

permit in the case where only LLMW is

stored. However, shipment of exempted

waste to these storage areas may occur

as they will be considered designated

facilities for the purpose of this rule,

since they continue to be safely

regulated under their NRC licenses. (See

letter from Elizabeth Cotsworth to J.D.

Givens, dated March 27, 1998, Ref. 20.)

Storage may, therefore, be either at the

generating site or at your accumulation

storage unit with the same NRC or NRC

Agreement State license number as that

under which the waste was generated.

i. Waste is a LLMW (Excludes

NARM). We are finalizing a conditional

exemption for LLMW because of the

dual regulation to which it is subject.

NARM does not meet the definition in

§ 266.210 of low-level mixed waste. We

heard from several commenters on

NARM. Some assumed we had included

NARM as eligible for the storage

27226 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

exemption; others suggested we do so.

To clarify what we intended, eligible

NARM in the proposal applied only to

the conditional exemption for

transportation and disposal. NARM is

not included as a waste eligible for the

storage and treatment conditional

exemption because that exemption is

based upon our study of NRC or NRC

Agreement State management practices

for stored waste. NARM is not regulated

by NRC but by individual states or other

federal agencies. We did not study State

licensing procedures for managing

NARM. Therefore, we have not included

NARM waste containing hazardous

waste in the storage and treatment

conditional exemption because it was

beyond the scope of our research

relating to safe storage and treatment of

LLMW.

ii. Waste is generated and managed by

you under a single NRC license. In the

proposal, we stated that having an NRC

license was a condition. However, we

now recognize that it was redundant to

require an NRC license provision as

both a prerequisite for eligibility and a

condition. Therefore, we have deleted

the license provision as a condition, and

retained it as a prerequisite for

eligibility. If, at any time, a facility

ceases to be subject to an NRC or NRC

Agreement State license, then LLMW

managed at the facility would become

ineligible for the storage and treatment

conditional exemption and would

become subject to RCRA Subtitle C

regulation. Similarly, if the waste has

decayed to background levels, and

ceases to be subject to LLW regulation,

then the waste becomes subject to RCRA

Subtitle C. (See VI.A.4.e.) The

conditional exemption is predicated on

our finding that NRC regulations and

oversight provide the controls necessary

to ensure that the hazardous portion of

an exempted waste will not be

mismanaged. It is the NRC license or

NRC Agreement State license, issued

and enforced by an independent

government agency, that assures proper

management during exempt storage. A

majority of commenters agreed with the

appropriateness of requiring an NRC

license.

Many commenters specified that the

storage and treatment conditional

exemption should not apply to DOE

wastes because DOE is not subject to

oversight by an independent regulatory

agency. States expressed similar

concerns in comments submitted to us.

In addition, based on site treatment

plans resulting from the Federal Facility

Compliance Act of 1992, DOE and

States have reached agreement on

compliance orders regarding

management of mixed wastes at DOE

facilities. We do not intend to affect or

disrupt these compliance orders. We

continue to believe that DOE’s storage

and treatment of low-level mixed wastes

raises additional and more complex

issues. Therefore, as proposed, we are

not extending the storage and treatment

conditional exemption to DOE.

In this rulemaking, we have relied

upon our thorough studies of the safety

of generator management of LLW at

facilities operating under a single NRC

or NRC Agreement State license. These

studies indicate that management of the

hazardous component of LLMW under

an NRC or NRC Agreement State license

is unlikely to pose a threat to human

health and the environment. We have

changed the eligibility criteria from

LLMW generated ‘‘on-site’’ (as stated in

our proposal) to ‘‘under a single NRC or

NRC Agreement State license.’’ This

change from a prescribed RCRA

definition of location to an NRC

definition is in keeping with the

flexibility we have sought in

management of stored mixed waste

under one regulatory framework. Our

study did not focus on licensees who

commercially store and treat waste for

other generators. We therefore allow

LLMW you generate under a single NRC

or NRC Agreement State license to be

eligible for a storage and treatment

conditional exemption.

b. Differences from proposed

eligibility for storage and treatment

exemption. These final eligibility

criteria differ from those proposed in

§ 266.225 for stored low-level mixed

waste. Our proposal said LLMW ‘‘is

eligible for a conditional exemption if

managed subject to NRC or Agreement

State regulations, and if it is: (a)

Generated at your facility * * *; (b)

stored on-site in a tank or container

meeting the requirements of your NRC

or Agreement State license for storing

low-level waste; and (c) stored in

compliance with chemical compatibility

requirements. * * *’’

We have moved the references in the

proposal at § 266.225(b) ‘‘stored in a

tank or container’’ and (c) ‘‘stored in

compliance with chemical compatibility

requirements.’’ These provisions are

combined as a condition in the final

rule language at § 266.230(b)(2). The

condition must be met initially and

maintained in order to keep the

exemption. The exemption is

automatically lost if the conditions are

not met. (See discussion related to loss

of the exemption in § 266.240.)

Similarly, the proposed eligibility

criteria in § 266.225(b), ‘‘* * * meeting

the requirements of your NRC or

Agreement State license for storing lowlevel waste,’’ has been moved. In the

final rule it is at § 266.230(b)(1) and

refers specifically to the requirements of

your license that apply to proper storage

of low-level radioactive waste. Note that

the requirements of your license which

relate solely to recordkeeping are

identified under the reporting

requirements in § 266.250. This

separation of safe management of the

waste from the records relating to waste

management was based on comments

received, which argued that the

automatic loss of the conditional

exemption should be for improper

management, and not solely for failure

to maintain records.

Another change in the final rule

language at § 266.225 relates to the

replacement of ‘‘on-site’’ with ‘‘under a

single NRC or NRC Agreement State

license.’’ We received numerous

comments relating to the question of

limiting the conditional exemption to

LLMW stored ‘‘on-site.’’ We had

specifically requested comment related

to use of the term ‘‘on-site’’ to describe

stored wastes meeting our proposed

condition and the ‘‘appropriateness of

extending a conditional exemption to

facilities that own or operate

consolidated storage facilities that do

not meet our current definition of ‘‘onsite.’’ (See 64 FR 63472.) In our

preamble, we had also sought comment

on a related issue—‘‘whether the

conditional exemption should include a

storage facility which serves as a

consolidation point for a single entity.’’

(See 64 FR 63472.)

We received a large number of

comments in response to these requests.

Most of them recommended that we

include, within the scope of the

conditional exemption, storage of

LLMW at facilities that do not meet the

RCRA definition of ‘‘on-site’’ in 40 CFR

260.10. Commenters gave several

reasons. Several commenters in support

of centralized facilities (and commercial

TSDFs) believed that consolidation of

waste storage would reduce risks to the

public because, unlike accumulation

areas, centralized facilities are designed

for longer term storage. Some of the

commenters indicated that applying the

RCRA ‘‘on-site’’ definition to limit the

exemption would result in operational

and administrative inefficiencies. These

inefficiencies include the need for

multiple storage facilities each with its

own inventory and inspection schedules

and emergency plan. Some commenters

indicated that organizations, such as

universities and medical institutions,

store LLMW at generator owned and

operated facilities and under their NRC

licenses are able to store LLW for decay.

However, the consolidation points these

organizations use may not meet the ‘‘onVerDate 11<MAY>2000 15:58 May 15, 2001 Jkt 194001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\16MYR2.SGM pfrm10 PsN: 16MYR2
Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27227

site’’ definition, nor have a single RCRA

permit number. A few of the total

commenters noted that consolidation

areas were covered by their NRC

licenses and were not considered

commercial facilities. Several stated that

a license under NRC may cover several

non-contiguous facilities or generation

points that all are owned by one

institution.

We agree with these commenters that

the consolidation of LLMW in a

specially designed and operated

consolidation facility will enhance

protectiveness and is more efficient than

maintaining multiple storage facilities.

A number of commenters recommended

that we allow LLMW to be transferred

from the point of generation (even if offsite) to a centralized waste management

facility. We agree as long as the mixed

waste is managed under the same NRC

or NRC Agreement State license

number. This approach will promote the

safe handling of LLW in centralized

waste management facilities designed

for radioactive waste management and

decay-in-storage and facilitate

compliance with ALARA principles,

which seek to reduce exposures and

which govern NRC LLW management.

(For further discussion see background

documents, Ref. 3, ‘‘Review of Waste

Management Practices’’ and Ref. 4

‘‘Comparison of EPA’s RCRA and NRC’s

Licensing Requirements.’’)

We also received a small number of

comments opposing an expansion of the

exemption to consolidation areas or

storage facilities that do not meet the

‘‘on-site’’ definition. (See 40 CFR

260.10.) Some of these commenters

maintained that EPA had not explained

why management of LLMW should be

different from hazardous waste. Others

stated that covering off-site generated

wastes may cause generators to lose

control of their wastes and may create

opportunities for abuse. We disagree

with these reasons for not expanding

our rule to include off-site consolidation

points under a single NRC license

within the storage conditional

exemption. The overall NRC mandate is

for protective management of LLW. (See

Energy Reorganization Act of 1974,

Public Law 93–438, 42 U.S.C. 5801(a).)

We explained in our proposal that the

NRC management framework is

imposed on the waste generator by

virtue of their NRC or the NRC

Agreement State license. Since it is the

controls imposed by this license that

provide the basis for the exemption, it

makes most sense to have the scope of

the exemption be the same as the scope

of the license. The ‘‘on-site’’ concept in

RCRA serves principally to govern the

scope of the RCRA permit exemption for

hazardous wastes that are accumulated

by a generator for a limited time period

with limited controls. That concept has

no bearing on this rule since the basis

for the exemption created today is the

protectiveness afforded by another

regulatory program.

Further, we do not believe a generator

will lose control of the waste. The

LLMW must be generated and

consolidated in a storage area operated

under the same NRC license as the

waste was generated. First, as stated

above, the waste must be manifested

from the generation point to the storage

site. In addition, control is maintained

by the license and by the conditions that

the waste be inventoried annually and

inspected quarterly. The NRC or NRC

Agreement State framework provides

safe management of both the chemical

and radiological hazards associated with

LLMW. Such management is provided

in addition to the license and ‘‘tiedown’’ conditions by adherence to

NUREG–0933, ‘‘A Prioritization of

Generic Safety Issues,’’ and by

regulations like 10 CFR 61.56, which

include many features related to the

physical and chemical characteristics of

the waste. This management framework

provides safeguards against abuse as

expressed in the concerns of these

commenters. In short, the NRC, or NRC

Agreement State, licensing scheme

provides substantial controls over waste

managed under an NRC license. The

commenter here provided no basis to

believe that the NRC scheme fails to

control the movement of waste, and

EPA is not aware of any basis.

c. Treatment and storage facilities

managing LLMW from other generators.

We are not extending the conditional

exemption to those mixed waste

facilities that manage wastes from other

licensees. We requested comment on

whether we should include in the

conditional exemption for storage and

treatment those mixed waste facilities

that manage wastes from other

generators. (See 64 FR 63473.) Some of

the commenters addressed the issue of

whether the scope of the conditional

storage exemption should be expanded

to include waste treatment and storage

facilities that manage wastes from other

generators. Many of those who did

comment urged EPA to allow

commercial storage and treatment

facilities that manage LLMW from other

generators the opportunity to claim the

conditional storage exemption. These

commenters cited several reasons to

support their position. One reason given

was the need of small businesses (for

example, one-time or sporadic LLMW

generators) who lack sufficient space for

storage and decay to have a place to

store their waste. A second reason was

that the NRC and NRC Agreement State

regulatory framework, which safely

addresses storage, should also be

sufficient for storage or treatment of

wastes off-site, provided the off-site

facility meets the conditions of the

exemption. Commenters arguing the

second position said that storage

facilities would be able to accept wastes

for storage that they currently cannot

accept due to regulatory restrictions.

Other commenters, however, maintain

that EPA should not expand eligibility

for the conditional storage exemption to

commercial storage facilities. These

commenters believe NRC regulations are

not as protective of human health as are

RCRA waste management requirements;

NRC provides less rigorous oversight of

storage facilities as compared with

nuclear power plants; NRC lacks

enforcement authority over hazardous

constituents; and storage facilities

would have difficulty keeping track of

exempt waste and separating it when

necessary. One commenter indicated

that commercial storage facilities

already have RCRA permits so there

would be little burden reduction if they

were to operate under a conditional

storage exemption. Other commenters

stated that allowing storage facilities to

operate under the storage exemption

would place an additional burden on

the host communities. Because

commercial storage facilities are in the

‘‘business of managing such materials

for compensation,’’ some commenters

maintained the commercial storage

facilities should have RCRA permits and

not be eligible for the conditional

exemption.

While there may be some small

businesses that would benefit as a result

of an expansion of the conditional

exemption to commercial storage

facilities, small businesses that generate

only small quantities of waste are

eligible under RCRA regulations for

conditionally exempt small quantity

generator (CESQG) status. (See 40 CFR

261.5.) If it is eligible for CESQG status,

a small business may be conditionally

exempt from RCRA regulatory

requirements based on the very small

volume of hazardous wastes or acutely

hazardous wastes which they generate.

If it is not a small quantity generator,

commercial storage facilities (without

an exemption) are still available for

waste storage (up to one year) and

treatment under current regulations.

We also disagree with some of the

reasons offered by commenters

opposing extending the conditional

exemption to waste managed at

commercial storage facilities. The focus

of this regulatory effort from its

27228 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

inception has been limited to a response

to expressed concerns of generators

regarding overlapping regulation of

mixed waste still under their control

(i.e., at their licensed facility). We did

not comprehensively evaluate

commercial storage facilities storing

wastes for other licensees given the

focus of the rule and limitations of time.

While we asked for information

regarding the relevance of the rule to

commercial facilities that manage

wastes from other generators, we did not

receive data to support opening the

exemption to commercial facilities.

Although we believe that the quantities

of waste shipped to these facilities

could be small, some question still

remains as to the long-term effect of

commercial storage facilities on the

management of LLMW. For example,

while we do not establish a time limit

on the storage of conditionally exempt

waste, we continue to believe that it is

highly desirable to have a system under

which waste is stored for short periods

of time before being sent for treatment

and disposal. Even without a regulatory

time limit, a generator has incentives

(such as capacity limitations,

management costs and the rising trend

in disposal costs) to move waste stored

at its facility from storage to treatment

and disposal. (See section VI.A.4.e.iii.)

A commercial storage facility may have

reduced incentives to minimize storage

time, since a commercial facility is more

likely to have excess capacity to account

for fluctuations in waste shipments. In

addition, since storage is the main

business of such facilities, they are less

likely to view waste storage as an

ancillary operation to be kept to a

minimum. We agree with those who

argue that most commercial TSDFs are

permitted and should remain so. In

addition, by limiting the scope of the

exemption to storage and treatment at

facilities operating under the same NRC

or NRC Agreement State license, the

compliance orders which DOE has

signed with States pursuant to the FFCA

will not be affected. In summary,

because we did not thoroughly evaluate

commercial facilities, and the other

issues associated with these facilities, at

this time we are not expanding the

storage and treatment conditional

exemption to include storage facilities

in the business of treating and storing

other licensees’ wastes.

2. What Conditions Must You Meet To

Qualify for and Maintain a Storage and

Treatment Exemption? (§ 266.230)

a. Initial condition to qualify—you

must notify the Director of your claim.

Under § 266.230(a), to qualify for the

storage and treatment conditional

exemption, you must notify the Director

in writing by certified delivery that you

are claiming a conditional exemption

for a storage unit containing low-level

mixed waste. Your notification must be

signed by your authorized

representative, as defined in 40 CFR

260.10, who certifies that the

information in the notification is true,

accurate, and complete. You must notify

the RCRA regulatory authority of your

claim either within 90 days of the

effective date of this rule in your State,

or within 90 days of when a storage unit

is first used to store conditionally

exempt LLMW.

You, as the party claiming the

conditional exemption, must be able to

demonstrate that your waste and storage

unit meet the eligibility criteria and all

the conditions. Notification is necessary

because it provides the Director with a

record of your claim for the exemption.

Your notification is self-implementing,

although we may use our inspection and

information collection authorities to

verify whether you are meeting the

conditions. You will not receive a notice

of approval from EPA or the Director.

i. Cross reference to proposed rule.

The rule language is reordered, but the

wording related to notification is

substantively the same as in proposed

§ 266.230(d). We reordered the language

to improve the clarity of the final rule.

(See 64 FR 63472.)

ii. Comments we received on storage

and treatment notification. We received

a number of comments regarding storage

and treatment notification. The majority

asked that we require generators to

notify either the EPA Regional

Administrator or the Director. Several

commenters mentioned a preference

that state hazardous waste programs be

notified. Other commenters thought the

notification should also be sent to NRC.

These commenters also thought that we

should require additional information in

the notice, such as:

• The scope of activities and type of

mixed waste,

• Radiological and chemical

characteristics,

• The RCRA waste codes,

• The expected length and method of

storage (container or tank type),

• Where waste storage and treatment

will take place,

• The type of treatment, and

• A copy of the emergency plan and

the NRC license, including the license

number and expiration date of the NRC

license.

As a result of these comments, we

have more clearly spelled out in the

notification language in § 266.230(a)

basic information which is readily

available to a mixed waste generator and

which specifically identifies that

generator, waste code(s), and storage

unit(s). In the final rule, the dated

notification must include your name

and address, RCRA identification

number, NRC or NRC Agreement State

license number, the waste code(s) and

storage unit(s) for which you are seeking

an exemption, and a statement that you

meet the conditions of subpart N. We

note that some of the information

requested by commenters is

unnecessary and could change after the

initial notification. The purpose of the

notification is to identify and notify, not

to provide a management plan for the

waste. Based on our studies, we can

confidently rely on the NRC

management framework for

conditionally exempted LLMW. The

Director will have access to information

substantiating your claim in the records

you are required to keep. We do not find

it is necessary to impose a requirement

to provide all of this information in the

notification. In particular, providing a

copy of the NRC license would be

burdensome as it is readily available for

a site inspection and is generally quite

lengthy. In addition, today’s conditional

exemption is based on the

protectiveness of the NRC regulatory

scheme, not on a license-by-license

review. In any event, much of this

information will be available to a RCRA

inspector during a site visit from records

that a generator is required to maintain.

Of course, after the Director receives

your initial notification, information

may be requested using information

gathering authorities if needed for any

reason.

One commenter suggested an annual

status report with projected dates for

treatment, shipment, and disposal. We

do not agree with this suggestion

because a status report adds a recurring

reporting burden that is not necessary to

protect human health and the

environment. Since projected dates for

treatment, shipment, and disposal may

change a status report does not provide

useful information regarding safe

management. The information is also

irrelevant to any of the conditions for

the exemption. The fact that a RCRA

inspector may follow-up at any time on

the claim of exemption to verify that the

conditions are met should provide

sufficient opportunity to gather needed

information. The notification, coupled

with the management of this waste

under NRC or equivalent NRC

Agreement State regulations, provides

information on who is managing exempt

waste and assurance regarding its safe

management. If a generator fails to

comply with the eligibility criteria, or

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27229

any of the conditions, the generator

must notify the Director of the failure

under § 266.240(a).

b. Conditions to maintain the storage

and treatment exemption (§ 266.230(b)).

i. Store waste in tank or container in

compliance with storage requirements

of your NRC or NRC Agreement State

license.

In the final rule, we state that you

must ‘‘store your low-level mixed waste

in tanks or containers in compliance

with the requirements of your license

that apply to the proper storage of lowlevel radioactive waste (not including

those license requirements that relate

solely to recordkeeping).’’ This

condition had been an eligibility

provision in the proposed rule at

§ 266.225(b). In the final rule, the waste

management aspects of this condition

(relating to storage under your NRC or

NRC Agreement State license) have been

separated from the recordkeeping

aspects related to storage of your LLW.

We believe that adherence to NRC

licensing requirements is important to

the safe storage of the hazardous portion

of the LLMW stream. In the proposal,

we requested comment on whether this

condition should include the loss of the

exemption if any LLW storage

requirement of the NRC license is not

met; or restrict loss of the exemption to

those violations which may result in an

environmental impact. (See 64 FR

63472.)

Comments Received on Compliance

With License Storage Requirements

We received numerous comments on

this aspect of the rule. Most of these

comments expressed the view that the

storage and treatment conditional

exemption should be lost only when

NRC license noncompliance is

specifically related to waste

management, and only in situations that

may result in adverse environmental

impact. Many reasons were given for

this view. Commenters expressed

concerns for cycling in and out of the

exemption because of minor noncompliance such as misspelled names

or incorrect phone listings in the

emergency plan. Commenters pointed

out that NRC can cite a licensee for

failure to comply with the licensee’s

own internal procedures, so a licensee

could be in violation of an NRC license

condition without any adverse health or

environmental impact, or release of

hazardous constituents.

Commenters compared failure to meet

the requirements of the NRC license

with failure to meet RCRA permit

requirements. Correction of the failure is

required, and the Director may impose

a fine or penalty, but the permit is not

automatically lost for such a failure.

(However, the Director does have the

ability to revoke a permit for significant

non-compliance. See 40 CFR 270.41 and

270.43.) Commenters indicated that

many kinds of errors can be easily

corrected, and should not trigger the

loss of the exemption nor subject the

generator to RCRA Subtitle C regulation.

Conversely, other commenters thought a

generator should lose the exemption for

failing to meet any NRC LLW storage

requirement. These commenters said

that it would provide a powerful

incentive for generators to comply with

the conditions.

We believe that the loss of the

exemption for failure to meet any NRC

LLW storage requirement, including

minor requirements not directly related

to safe storage, is unwarranted and not

necessary to protect human health and

the environment. As noted above, the

consequence of failure to meet a RCRA

permit requirement is not the automatic

loss of the permit. Based upon

comments supporting a specific

condition relating to waste management,

and the difficult situations which

commenters have brought to our

attention, we have revised the condition

in § 266.230(b)(1) to read, ‘‘* * * in

compliance with the requirements of

your license that apply to proper storage

of low-level radioactive waste.* * * ’’

The final rule does not limit the loss of

the exemption to events causing adverse

environmental impact, but strikes a

balance by specifying a loss of the

exemption when noncompliance with

the condition is related to waste

management. We believe it would create

considerable uncertainty and great

difficulties for purposes of enforcement

and compliance assurance, if the RCRA

status of the waste turned on the

judgment of whether a particular

violation might cause an adverse

environmental impact.

The recordkeeping requirements

related to your NRC license have been

moved to section § 266.250. Upon

consideration of the comments, we have

concluded that reporting compliance is

better treated as a requirement rather

than a condition. First, given the logic

of the conditional exemption, it seems

artificial to say that a waste which is not

‘‘hazardous’’ under the RCRA regulatory

definition becomes ‘‘hazardous’’ if a

report contains an inaccuracy, even if

the waste is still being properly

managed. In addition, we agree with the

commenters that we should not create a

system under which the storage and

treatment exemption can be easily lost

for minor or inadvertent infractions.

Finally, we believe the final rule scheme

retains a strong incentive for

compliance with recordkeeping

requirements. Again, in striking a

balance based on comments we

received, we provide language in

§ 266.240(b) that the Director may

terminate an exemption, or specify

additional conditions, for repeated or

serious noncompliance with the

requirements of subpart N. (See

proposal at § 266.245(b).)

ii. Store waste in compliance with

chemical compatibility requirements.

You must ‘‘store your low-level mixed

waste in tanks or containers in

compliance with chemical compatibility

requirements of a tank or container in

40 CFR 264.177, or 264.199, or 40 CFR

265.177, or 265.199.’’ The rule requires

that the waste be compatibly stored in

tanks or containers. This condition is

found in § 266.230(b)(2) in the final

rule. For clarity, this provision has been

moved from § 266.225(c) in our

proposed rule where it was required for

eligibility. The proposed rule language

stated LLMW is eligible ‘‘if it is: * * *

(c) Stored in compliance with chemical

compatibility requirements of a tank or

container (See § 264.177, or § 264.199 of

this chapter), or (§ 265.177, or § 265.199

of this chapter).’’ The language in the

final rule is essentially the same as in

the proposal. We received a number of

comments on eligibility provisions in

the proposal. However, none was

directed at the proposed eligibility

requirement in § 266.225(c) relating to

compliance with chemical compatibility

requirements. We have therefore

retained this provision as a condition

and emphasize the importance of

meeting this condition to retain the

conditional exemption for storage.

iii. Certify that personnel are trained

in hazardous waste management. You

must certify that facility personnel who

manage stored mixed waste are trained

in a manner which ensures that the

conditionally exempt waste is safely

managed and includes training in

hazardous waste management and

hazardous materials incidents response

that meets the personnel training

standards found in 40 CFR

265.16(a)(3).’’ Personnel managing the

waste must be trained in identifying and

providing initial response to a release of

hazardous constituents as well as in

managing radioactive waste. As part of

the notification process, you must

certify by a written statement that

personnel managing stored LLMW are

appropriately trained. This condition at

§ 266.230(b)(3) is the same as our

proposal where it appeared at

§ 266.230(e).

27230 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

Comments on Storage and Treatment

Related to Training

We received a comment that similar

training was already required by NRC or

an NRC Agreement State license; the

commenter felt that the training

condition could be deleted. Other

commenters believed that proper

training was critical, and that the

training condition as written in the

proposal was reasonable. We

determined, based on our studies, that

added training in chemical waste

management was important to assure

protection of human health and the

environment. We, therefore, agree with

these latter commenters. One

commenter objected to the need to

certify that personnel had been trained,

and recommended we drop the

certification. We used the word

‘‘certify’’ because we believe that

training in hazardous waste

management is critical. The certification

ensures that the LLMW facility will

verify compliance with the training

requirements. It provides an assurance

to commenters who expressed concerns

about the ability of personnel trained in

safe management of radioactive

materials also to manage hazardous

wastes safely, and respond to hazardous

materials incidents. The certification

also ensures that a record is available for

review by an inspector, enabling

verification that all personnel involved

in managing or handling the exempt

stored wastes are aware of the potential

hazards of the hazardous portion of

these wastes.

iv. Inventory and inspect your waste.

You must ‘‘conduct an inventory of your

stored low-level mixed waste at least

annually and inspect it at least quarterly

for compliance with this paragraph (part

266 subpart N).’’ An important part of

assuring that you comply with the

conditions in today’s rule is the

condition that you perform regular

inspections of the areas in which you

store exempted waste, as well as an

annual inventory of the waste to detect

any loss or other mismanagement. We

received comments that the proposal

was unclear as to what inventory

frequency we intended.

Revision to Inventory Language From

Proposed Storage and Treatment

Exemption

In our November 1999 proposal, at

§ 266.230(f), we said, ‘‘Inventory your

stored low-level mixed waste at least

annually; inspect it at least quarterly for

compliance with the other conditions of

the paragraph; update your inventory

records of conditionally exempt LLMW

quarterly; and maintain records for three

years.* * *’’ Several commenters

requested that we clarify the inventory

frequency; they did not know if we

meant an annual or quarterly inventory.

We had intended that generators

conduct an inventory annually.

Therefore, we have deleted the reference

to ‘‘update your inventory records of

conditionally exempt LLMW quarterly.’’

The annual inventory records, copies of

the generator’s notification of additional

claims for conditional exemption of

storage units, and records of all

shipments for treatment or disposal

since the annual inventory will be

available to an inspector. These records

will enable an inspector to gain access

to a complete file of all conditionally

exempt LLMW storage units and to

verify the amount stored at any given

time. Our proposal addressed records

requirements in § 266.230(f) and

§ 266.250. We have consolidated

required records maintenance in

§ 266.250.

v. Maintain an accurate emergency

plan (§ 266.230[b][5]). You must

‘‘maintain an accurate emergency plan

and provide it to all local authorities

who may have to respond to a fire,

explosion, or release of hazardous waste

or hazardous constituents. Your plan

must describe emergency response

arrangements with local authorities;

describe evacuation plans; list the

names, addresses, and telephone

numbers of all facility personnel

qualified to work with local authorities

as emergency coordinators; and list

emergency equipment.’’ In our proposal,

nearly identical language was found in

§ 266.230(g). However, in proposed

§ 266.230(g) we also provided at the end

of the paragraph the following reference:

‘‘(See 40 CFR part 265, subpart D.).’’ The

reference caused confusion. We had

intended this reference to serve to

identify those aspects of a contingency

plan and emergency procedures

necessary for managing hazardous

wastes during an emergency. Several

commenters interpreted that reference

as serving as guidance in the

development and maintenance of an

emergency plan; others interpreted the

reference as a requirement. Because we

enumerate, within the rule language, the

essential components of the RCRA

emergency plan, we have dropped the

reference. However, the regulations at

40 CFR part 265, subpart D can continue

to provide guidance concerning the

necessary elements of a comprehensive

emergency plan.

c. Modifications to proposed storage

and treatment conditions. We have

modified the storage and treatment

exemption conditions listed at § 266.230

in the proposed rule as described below.

First, we moved the proposed

condition to have a valid NRC or

Agreement State license (proposed as

§ 266.230[a]) from the conditions

section to the eligibility section

(§ 266.225). We made this change

because this is best described under

eligibility. Before your waste can qualify

for the conditional exemption, your

waste must be eligible, i.e. managed

under an NRC or NRC Agreement State

license. If your waste is not eligible, it

cannot be conditionally exempt from

RCRA Subtitle C regulation. Eligibility

criteria are threshold provisions.

Second, we deleted the condition to

meet the eligibility criteria (proposed as

§ 266.230[c]) because we determined

that this was basic. A generator could

not claim the exemption without first

meeting (and maintaining) the eligibility

criteria.

Third, we maintained the condition

that you notify the regulatory authority

in writing by certified delivery that you

are claiming a conditional exemption

for your low-level mixed waste

(proposed as § 266.230(d) and finalized

as § 266.230(a)). Your notification must

be signed by an authorized

representative of your establishment

who certifies that the information in the

notification is true, accurate, and

complete. You must notify your

regulatory authority of your claim either

within 90 days of the effective date of

this rule in your State, or within 90 days

of when a storage unit is first used to

store conditionally exempt low-level

mixed waste. Your dated notification

must include identifying information

such as your name and address, your

RCRA generator ID number, your NRC

license number, and the name of your

authorized representative signing the

notice. In addition, your notification

must indicate that you meet all the

conditions for the exemption, and

indicate the waste and storage unit for

which you are claiming the exemption.

Fourth, both to streamline the

regulatory language, and to make clear

the conditions that you must meet and

maintain for your waste to qualify for

the conditional exemption, we

combined and moved the eligibility

criteria proposed in § 266.225(b) and (c)

to § 266.230(b). Based on comments we

clarified these conditions that must be

met and maintained.

We received considerable comment

on whether claimants should be

required to comply with all the

requirements of their NRC or NRC

Agreement State license, or with just

those provisions that related to the

management of conditionally exempt

LLW (i.e., those provisions, which if

violated, could result in an

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27231

environmental impact from the

exempted waste). In response, we

modified the proposed condition that

claimants must be in compliance with

the requirements of their license for

storing LLMW (proposed as

(§ 266.230[b]). This modification

resulted in the condition

((§ 266.230[b][1]), which requires you to

store your LLMW in tanks or containers

in compliance with the requirements of

your license that apply to the proper

storage of LLW (not including those

license requirements that relate solely to

recordkeeping).

The remaining conditions—proposed

as § 266.230(e), (f), and (g)—are being

finalized as § 266.230(b)(3), (4), and (5),

respectively. Specifically, claimants still

must:

• Certify that facility personnel who

manage stored conditionally exempt

LLMW have been trained in a manner

that ensures that the conditionally

exempt waste is safely managed and

includes training in chemical waste

management and hazardous materials

incidents response that meets the

personnel training standards found in

40 CFR 265.16(a)(3);

• Conduct an inventory of your stored

conditionally exempt LLMW at least

annually and inspect it at least quarterly

for compliance with part 266 subpart N;

and

• Maintain an accurate emergency

plan and provide it to all local

authorities who may have to respond to

a fire, explosion, or release of hazardous

waste or hazardous constituents. Your

plan must describe emergency response

arrangements with local authorities;

describe evacuation plans; list the

names, addresses, and telephone

numbers of all facility personnel

qualified to work with local authorities

as emergency coordinators; and list

emergency equipment.

3. Treatment (§ 266.235)

a. Treatment Clarification. In the

proposed § 266.235, we allowed

treatment of LLMW by generators in a

tank or container covered by the

provisions of their NRC or NRC

Agreement State licenses, but we

excluded ‘‘thermal treatment, such as

incineration.’’ The proposal was

intended to make the storage and

treatment conditional exemption

consistent with the types of treatment

NRC currently allows in a tank or

container. By excluding thermal

treatment we inadvertently have

excluded some treatment (for example,

drying processes) which the NRC has

allowed in tanks or containers. It was

not our intent to limit treatment

currently allowable in tanks and

containers. We, therefore, revised the

regulatory language in § 266.235. Our

clarification reflects the level of

flexibility originally intended. As we

explain below, however, forms of

treatment that are done in units other

than tanks and containers are not

exempt from RCRA Subtitle C

requirements. Treatments such as

incineration, molten salt and super

critical water oxidation would not be

exempt and would require a RCRA

permit.

b. Comments received on treatment.

We heard from a number of commenters

regarding the conditional exemption for

treatment of LLMW in tanks and

containers. As discussed below, the

majority of the commenters approved of

the conditional exemption for treating

LLMW at a generator’s NRC licensed

facility in tanks and containers, many

noting that this option would provide a

valuable opportunity to process waste at

their facilities for safer storage and

disposal. However, a number of

commenters requested that we consider

expanding the scope of the exemption to

include thermal treatment, while a few

commenters requested that we not allow

generators to conduct any form of

treatment without a RCRA permit.

i. EPA should reconsider allowing

treatment. We heard from several

commenters who specifically requested

that EPA reconsider any exemption of

any storage or treatment activities

involving LLMW from the RCRA

permitting requirements. One

commenter believed that when it comes

to LLW and LLMW, the NRC appears to

be more concerned with radionuclides

than the potential chemical hazards.

Thus the commenter said EPA should

consider which treatment and storage

processes, as defined under RCRA,

require permitting and which processes

may be exempted due to small scale,

low risk of personal or environmental

hazard, or similar concerns.

Another commenter, citing experience

as a fully licensed and permitted mixed

waste TSDF, is concerned that the

treatment, transportation, and disposal

exemptions are premised upon a

generator being able to treat its waste

properly to meet LDR requirements. The

commenter stated that experience has

proven treatment to be a highly

technical process requiring the proper

equipment, the proper treatment

formulae, and careful monitoring. The

commenter noted that a treatment

failure could result in the subsequent

closing of the ‘‘disposal facility as a

RCRA Subtitle C facility, if the waste

cannot be retrieved or if its hazardous

constituents cannot be delisted.’’

Another commenter stated the

treatment exemption is redundant

because generators already are allowed

to treat and store RCRA wastes

(including LLMW) without a RCRA

permit within 90 days, and questioned

whether we intended to capture the

spectrum of legacy wastes. The

commenter opposed our extension of

the conditional exemption to legacy

wastes. The commenter alleged that

many wastes have already been stored

for numerous years despite existing

treatment and disposal capacity because

of cost reasons. The commenter stated

that the exemption would allow LLMW

generators to further delay the treatment

and disposal of legacy wastes. The

commenter concluded that extended

treatment and storage of LLMW is in no

way protective of human health or the

environment.

We disagree with the commenters’

assertions that the storage and treatment

conditional exemption is not protective

of human health and the environment.

We agree that the NRC licensing

framework for storage and treatment of

LLMW is geared primarily to protection

against radiological hazards through

treatment and containment of

radionuclides. However, one of

Congress’ purposes in establishing the

NRC is to ‘‘advance the goals of

restoring, protecting, and enhancing

environmental quality, and to assure

public health and safety.’’ (See Energy

Reorganization Act of 1974, Pub. L. 93–

438, 42 U.S.C. 5801(a)).

This statutory purpose is reflected in

NRC’s mission statement. ‘‘The mission

of the U.S. Nuclear Regulatory

Commission (NRC) is to ensure

adequate protection of the public health

and safety, the common defense and

security, and the environment in the use

of nuclear materials in the United

States.’’ (See http://www.nrc.gov.)

Therefore, EPA and NRC share a

common mandate to protect human

health and the environment.

Moreover, we conducted studies and

analyses to determine the protectiveness

of the NRC’s regulatory framework for

managing LLW. (See 64 FR 63497;

Section VII., Supporting Documents.)

We determined that the various

management requirements with regard

to treatment, primary and secondary

containment, inspections, etc., provide

protection for the hazardous

constituents in the mixed waste that is

comparable to the protection provided

by RCRA. We found that NRC has

extensive experience with waste

compatibility and stability. For

example, NRC requires facilities to

consider the chemical properties

(including ignitable, reactive, and

27232 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

explosive properties) of their LLW both

in the design of the LLW facility, and in

writing the standard operating

procedures for the facility and

associated waste handling systems,

storage containers, and storage areas to

prevent accidental mixing of

incompatible wastes. The intent of the

NRC licensing and EPA RCRA programs

are equivalent in that both programs

require the anticipation, recognition,

and prevention of accidental ignition,

reaction of reactive wastes, releases,

explosions, and fume generation

resulting from improper mixing

procedures or from the inherent

instability of some wastes.

Our studies also included a review of

the storage and treatment compliance

record of a number of licensees.

Violation rates at these facilities

compared favorably with RCRA

facilities and demonstrate that NRC

licensed facilities operate under a

regulatory scheme that assures that

waste is protectively managed. Based on

our studies we concluded that NRC

storage and treatment regulations and

license requirements regarding storage

and treatment are at least as stringent

and protective of human health and the

environment as RCRA’s Subtitle C

system. (See ‘‘Comparison of the EPA’s

RCRA Requirements and the NRC’s

Licensing Requirements for the

Treatment [In Tanks & Containers] and

Storage of Low-Level Mixed Wastes at

Nuclear Facilities,’’ Final Document,

April 2001, Ref. 4.) Therefore, we will

allow NRC licensees to treat LLMW in

tanks and containers. We note that

today’s rule is consistent with existing

RCRA regulatory interpretation which

allows treatment in tanks and containers

by a generator without a permit. (See 51

FR 10168.)

With regard to the commenter who

was concerned with generators’ being

able to treat their wastes to the

applicable LDRs and the potential

consequences a LLRWDF, we note that

the majority of the volume reduction

and chemical stabilization and

encapsulation processes that these

generators currently conduct at their

facilities in tanks and containers are no

different from the treatment processes

used at RCRA permitted commercial

TSDFs. While some generators may

have to request a license modification to

change their current processes (for

example, add a stabilization step) to

meet the LDRs, this adjustment would

be approved under the auspices of the

generator’s license. In addition, an NRC

or NRC Agreement State licensed

LLRWDF may require testing data, and/

or conduct verification testing itself, to

document that wastes meet the

applicable LDR treatment standards

prior to the acceptance and subsequent

disposal of these treatment residues. In

any event, there are potentially

significant enforcement consequences if

the waste does not attain LDRs,

providing a strong incentive for the

parties involved to meet LDR levels. If

a generator is uncertain of its ability to

treat its waste to comply with LDRs, the

generator has the option of sending the

waste to a permitted TSDF for

treatment, or of continuing to store the

waste until permitted treatment capacity

exists.

We disagree with the commenter’s

characterization of legacy wastes as

wastes that could have been treated

years ago, but were not because of cost

issues. As the commenter noted, many

of these wastes have been in storage for

several decades; these wastes remained

in storage because legacy wastes, by

definition, are wastes for which

treatment or disposal capacity does not

exist. Although the federal government

and industry have conducted significant

research on innovative waste treatment

and management methods, much more

needs to be done before acceptable

treatment processes and management

methods are developed for all legacy

wastes. In addition, siting of new lowlevel radioactive waste disposal

facilities continues to be difficult.

Finally, there appears to be some

confusion on the part of commenters as

to the time period allowed for treatment

by a generator under this exemption.

Today’s rule allows generators to treat

their mixed waste in tanks and

containers at their facilities in

accordance with the terms of their NRC

or NRC Agreement State license without

a permit and without a time constraint,

in view of the protection afforded by the

NRC scheme.

ii. EPA should broaden the scope of

treatment in the storage and treatment

conditional exemption. We heard from

a number of commenters who

specifically requested that we consider

widening the scope of the conditional

exemption to approve thermal treatment

if allowed under the generator’s NRC or

NRC Agreement State license. Many of

these commenters were concerned that

the prohibition proposed in § 266.235

on conducting any form of thermal

treatment would inappropriately bar

otherwise sound LDR treatment options

for mixed waste containing organic

constituents. Though these commenters

did not raise objections to our ban on

incineration, they believed that the

practical effect of the thermal treatment

prohibition was that treatment of any

mixed waste containing organic

constituents would have to be

conducted off-site at RCRA permitted

mixed waste commercial treatment,

storage, and disposal facilities,

assuming any are available. Some of

these commenters noted that there are

numerous thermal technologies that are

not, or do not rely on incineration or

‘‘open flame combustion,’’ including

evaporation, steam reforming, high

temperature catalytic oxidation, super

critical water oxidation, and molten salt

technology. Several of these

commenters stated that a blanket

prohibition against thermal treatment

could deter the development of new and

innovative treatment processes. They

argued that a complete ban on any type

of thermal treatment was overly broad

and unnecessary, limiting otherwise

viable, cost effective, and

environmentally sound treatments

available to NRC licensees. These

commenters further suggested that the

exemption should provide for a riskbased variance mechanism from any

thermal treatment prohibition because

they believe such an approach would

provide a strong incentive for

innovative waste treatment vendors to

develop new and protective treatment

methods.

We also heard from several

commenters who wanted any treatment

option approved in an NRC or NRC

Agreement State license to be

permissible under the storage

exemption. They suggested that we

clarify treatment to reflect this. Some of

these commenters noted that

clarification is necessary because the

text proposed in § 266.235 could be

misinterpreted to limit treatment types

to solidification, neutralization, or

stabilization, when in fact, additional

forms of treatment (other than thermal

treatment) may be allowed under the

NRC or NRC Agreement State license.

Another commenter recommended that

we remove ambiguity by specifying

exactly what treatment options the

generator can expect to apply. That is,

the EPA should specify by code which

treatment options are considered

allowable treatment technologies, or

prohibited treatment technologies. Two

of the commenters also recommended

that EPA either delete the specific

examples referenced in the second

sentence of proposed § 266.235 or,

alternatively, make clear that they are

only examples to eliminate ambiguity.

Commenters also suggested that the

conditional exemption should be

modified to allow for treatment in other

than tanks and containers, provided that

it is carried out within a controlled area

such as a laboratory, is performed under

NRC or NRC Agreement State

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27233

regulations and approval, and that there

are no uncontrolled releases of

hazardous substances to the

environment. These commenters believe

that the NRC safeguards are an adequate

alternative to EPA permit requirements

for most aspects of treatment facility

operations.

We agree that the scope of the

conditional exemption should include

any type of treatment that generators

can conduct in tanks and containers at

their facilities in accordance with the

terms of their NRC or NRC Agreement

State license. As stated, we have revised

the regulation language to drop the

blanket restriction on thermal treatment

since we had not intended in the

proposal to limit the forms of treatment

that could be conducted in licensed

tanks or containers.

We are not, however, extending the

storage and treatment conditional

exemption to all forms of treatment that

might be allowed under a generator’s

NRC or NRC Agreement State license.

We did a thorough comparison of NRC’s

requirements for storage and treatment

in tanks and containers with RCRA

Subtitle C’s requirements and

concluded that our regulations and

guidance governing generator storage

and treatment in tanks and containers

and NRC’s are generally equivalent. (See

our background document ‘‘Comparison

of the EPA’s RCRA Requirements and

the NRC’s Licensing Requirements for

the Treatment [In Tanks and Containers]

and Storage of Low-Level Mixed Wastes

at Nuclear Facilities.’’) We did not do a

comparative study comparing what NRC

would require for treatment that occurs

outside of tanks and containers with

RCRA subtitle C requirements. For

example, we did not evaluate the

requirements NRC would impose on a

LLW incinerator with the requirements

that EPA would impose under 40 CFR

part 264 subpart O on a hazardous waste

incinerator.

For these reasons, consistent with

current regulations for accumulation of

waste in tanks and containers, we are

limiting the allowable forms of

treatment under the conditional

exemption for storage of LLMW to only

those forms that can occur in tanks and

containers. Treatment that could qualify

includes, but is not limited to, those

treatment types that occur within a tank

or container, such as certain forms of

thermal treatment, neutralization,

solidification, or other forms of

stabilization. The rule no longer cites

these examples, since they may appear

exclusive. We do not want to exclude all

technologies that might rely on some

degree of heat.

Finally, because this conditional

exemption relies upon waste handlers

monitoring their compliance with the

conditions, we do not believe that a

risk-based variance approach is

appropriate. Specifically, we do not

have the authority to require the NRC or

NRC Agreement States to implement the

risk-based variance approach for

specific treatment technologies (such as

incineration). Generators seeking

authority to construct and operate a

complex treatment process unit such as

an incinerator can apply for a RCRA

treatment permit under the current

regulatory system. Therefore, a variance

process would duplicate the current

RCRA permitting program.

4. Implementation of the storage and

treatment conditional exemption

a. Self-implementation. The storage

and treatment conditional exemption is

triggered by the claimant who generates

and stores the waste. To be eligible for

a conditional exemption for stored lowlevel mixed waste you must notify the

Director of your claim for exemption of

your storage unit containing low-level

mixed waste and of your compliance

with all the conditions in § 266.230.

You do not need to wait for approval

from the State or Region with

jurisdiction over the RCRA mixed waste

program. However, you must be able to

demonstrate that your claim is accurate,

that your waste is eligible, and that you

meet the conditions and other

requirements specified in this rule. The

Director may use inspection and

information collection authorities to

verify whether your waste met the

eligibility provisions, you are meeting

the conditions, and you are complying

with all of the requirements.

RCRA section 3008(a) gives the

Director the authority to take

enforcement actions when you fail to

meet any of the provisions of the

conditional exemption. The appropriate

regulatory authority can take a direct

enforcement action against you when

you fail to meet a specific RCRA

requirement for your waste under this

conditional exemption such as the

notification or recordkeeping

requirement. When you lose your

exemption for your waste due to failure

to meet a condition of the exemption,

your waste is no longer exempted and

it becomes a RCRA hazardous waste.

The appropriate regulatory authority

can take enforcement action against you

for managing a hazardous waste without

complying with RCRA hazardous waste

requirements. As is the case under

current RCRA regulations, concerned

citizens also can bring to the regulator’s

attention any circumstance that might

aid the authorities in monitoring and

enforcement efforts. A concerned citizen

also may file a suit under RCRA section

7002 against a generator for failure to

meet any of the provisions of the

conditional exemption. Lastly, the

Director can take actions using authority

under section 7003 and section 3013 of

RCRA, 42 U.S.C. 6973, when it is

determined that there may be an

imminent and substantial endangerment

to human health or the environment.

Comments Regarding SelfImplementation

We received few comments on selfimplementation. One commenter who

supported our approach indicated it was

a practical way to implement the

exemption and consistent with other

EPA exemption programs, such as the

Military Munitions Rule. We agree.

Another commenter objected to selfimplementing rules as not protective,

and suggested we clearly specify

enforcement and penalty provisions.

Our studies conclude that regulation by

NRC or NRC Agreement States of lowlevel radioactive waste protects human

health and the environment during

storage and treatment. In addition, our

approach requires reporting of any

failure to comply with the conditions of

the exemption and the automatic loss of

the exemption. We note this is similar

to the current system under RCRA in

which we rely upon reporting

requirements and inspections for

oversight.

The Director continues to have

authority to inspect or collect

information to verify independently the

safe management of stored exempt

waste. If a licensee reclaims a lost

exemption, any violation must be

corrected prior to the reclaim of the

exemption, and an explanation of steps

taken to prevent recurrence must be

described in the reclaim notification.

The Director can impose additional

requirements or conditions on a licensee

reclaiming an exemption, if appropriate.

If violations of conditions or

requirements demonstrate repeated and

serious failure to comply, the Director

may revoke a claim or reclaim of the

conditional exemption. We expect that

revocation would be an unusual event.

b. Loss of the storage and treatment

conditional exemption (§ 266.240). If

you previously claimed a storage and

treatment conditional exemption from

hazardous waste regulations and then

fail to meet a condition listed at

§ 266.230, we continued to require at

§ 266.240 that you report the specific

condition to the Director, and the NRC

or NRC Agreement State in writing by

certified delivery within 30 days of

27234 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

learning of the failure. Your report must

be signed by your authorized

representative certifying that the

information is true, accurate, and

complete. This report must include the

condition(s) you failed to meet, a

description of the LLMW and storage

location at the facility; and the date(s)

on which you failed to meet the

condition(s). If the failure to meet any

of the conditions may endanger human

health or the environment, you must

also immediately notify the Director

orally (within 24 hours), and follow up

with written notification within five

days. Failures that may endanger human

health or the environment include, but

are not limited to, discharge of a

CERCLA reportable quantity or other

leaking or exploding tanks or

containers, or detection of radionuclides

or hazardous constituents in the

leachate collection system of a storage

area. If the failure may endanger human

health or the environment, you must

follow the provisions of your emergency

plan. Note that failure to meet

recordkeeping and other requirements

may subject you to an enforcement

action requiring compliance, fines and

penalties, or both.

We also clarified in § 266.240(b) that

the Director may terminate your

conditional exemption or add

conditions to your exemption for

serious or repeated noncompliance with

any requirement(s) of subpart N. This

language had appeared under

§ 266.245(b) in the proposal.

Under § 266.240, your waste

automatically loses the storage and

treatment exemption when you fail to

meet any of the conditions in § 266.230.

If your stored waste no longer meets one

or more of the exemption conditions,

that waste will be fully regulated under

RCRA Subtitle C as a hazardous waste.

The conditions set forth in § 266.230 are

important, in conjunction with your

NRC license, to ensure that LLMW is

properly managed to avoid potential

adverse impact on human health or the

environment. In addition, the Director

may terminate your ability to claim a

conditional exemption for your waste

and storage unit, or require you to meet

additional conditions to claim a

conditional exemption, for serious or

repeated noncompliance with any

requirement(s) of subpart N. The

potential loss of the exemption resulting

from failure to meet a condition will

provide a strong incentive to properly

manage the waste.

Response to Comments on Loss of the

Storage and Treatment Conditional

Exemption

We heard from a number of

commenters in response to our specific

request on whether the conditional

storage and treatment exemption should

be lost when any of the LLW storage

requirements of the NRC or NRC

Agreement State license are not met, or

only when violations have occurred

which may result in an adverse health

or environmental impact. Several of

these commenters supported losing the

storage and treatment exemption when

any of the LLMW storage requirements

of the NRC or NRC Agreement State

license are violated. These commenters

believed that such a provision was a

strong incentive for ensuring that the

waste was managed properly. One of

these commenters also requested that

we retain a broad list of exemption

violations because a limited list

effectively suggests regulatory

compliance is unimportant. A different

commenter urged us to define the

exemption conditions as specifically as

possible to improve enforceability.

The majority of commenters,

however, opposed our proposal that the

generator would lose the storage and

treatment exemption when any of the

conditions of the exemption were

violated. These commenters asked that

we increase our specificity and limit the

loss of exemption to violations resulting

in actual endangerment of human health

or the environment. Many of these

commenters were concerned that the

storage and treatment conditional

exemption could be lost due to

relatively minor administrative

violations. In addition, although one of

these commenters agreed that generator

requirements are necessary to

demonstrate that the waste has been

properly managed, others believed that

the failure to comply with

recordkeeping requirements does not

represent an imminent threat to public

health and safety.

We also heard from a number of

commenters who believed that we

should build upon this concept of not

automatically terminating a storage and

treatment exemption for failure to

comply with all of the provisions of the

NRC or NRC Agreement State license to

preclude also the automatic termination

of an exemption for failure to meet any

of the conditions listed in § 266.230(a)–

(g). These commenters believed that we

should not revoke an exemption

because there was a violation of a

condition only. One of these

commenters cited our own research,

which indicated that NRC inspections

would ensure protection of human

health and the environment during the

storage period.

These commenters raised a number of

valid points. Specifically, we agree that

generators should not lose their

exemption because of violations of their

NRC or NRC Agreement State licenses

that do not bear directly on whether the

waste is being managed protectively on

a day-to-day basis. Also, we have

defined the exemption conditions

specifically to improve enforceability.

We note that NRC or NRC Agreement

States can also enforce if LLW is

improperly stored.

We did not intend to create a system

that would render waste ‘‘hazardous’’

even though it is being managed in

conformance with all the substantive

conditions that EPA found to be

protective. Although the potential for

immediate return to RCRA regulation is

consistent with the Military Munitions

Rule, and may be necessary in some

instances, we believe that recordkeeping

violations (such as maintaining

paperwork on training certifications)

that you could promptly remedy, should

not result in automatically subjecting

you to all applicable RCRA permitting

requirements. We have modified the

conditions of the exemption so that you

do not lose the storage and treatment

conditional exemption automatically for

a violation of a recordkeeping

requirement associated either with your

NRC or NRC Agreement State license, or

today’s rule. However, recordkeeping is

important. Violations will subject you to

enforcement, and repeated and serious

violation of recordkeeping or other

requirements could result in revocation

of your claim or reclaim of a storage and

treatment conditional exemption.

Finally, many commenters also

suggested a 30-day time period (or other

period of time as agreed to by the

agency) to reestablish compliance before

a generator risks losing the exemption.

The commenters noted that failure to

meet exemption conditions subjects the

waste generator to enforcement actions

from the regulatory agency having

jurisdiction. Many of these commenters

stated that the NRC or NRC Agreement

State regulations or license conditions

in effect during this time period should

be sufficient to ensure protection of

human health and the environment.

Two of these commenters said this 30-

day time period (or another time period

agreed to by EPA) and the opportunity

to reestablish regulatory compliance

should be allowed even in situations

where noncompliance results in

endangering human health or the

environment. We disagree; however,

facilities have other options for

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27235

reclaiming the storage and treatment

conditional exemption as soon as

practicable.

As we discussed above, we modified

the list of conditions so that only those

provisions that we believe pertain

directly to safe management of the waste

are included. As a result of these

changes, the storage and treatment

conditional exemption will not be lost

automatically for failure to meet a

recordkeeping requirement (unless the

Director determines that it indicates a

serious or recurring problem or decides

to revoke the reclaimed exemption

under § 266.245[b]). We have concluded

the conditions are, however, the

minimum necessary to ensure that

LLMW will be properly managed. We

believe that the threat of losing the

exemption for failure to meet any one of

the conditions listed at § 266.230 will

provide a strong incentive to properly

manage the waste. We note that if you

lose the storage and treatment

exemption, the affected waste would

return to the RCRA system as hazardous

waste, and you would have 90 days (or

up to 270 days if you are a small

quantity generator) to accumulate the

waste before it must be either shipped

off-site for treatment and disposal or

stored in a RCRA permitted storage unit.

You could also reclaim your storage and

treatment exemption, as long as you

again meet the conditions in § 266.230

and submit the required reclaim

notification.

c. If you lose your storage and

treatment exemption can it be

reclaimed? (§ 266.245). This conditional

exemption final rule creates a process

for the claim of a storage and treatment

exemption, for the loss of the exemption

in § 266.240, and for reclaim of the

exemption in § 266.245. The storage and

treatment exemption is automatically

lost at the time of noncompliance with

a condition. The Director does not need

to take action to revoke the exemption.

However, you may reclaim a lost

conditional exemption if you again meet

the conditions in § 266.230. You must

send notification of the loss of the

storage and treatment exemption due to

a failure to meet a condition before you

can reclaim the exemption. To reclaim,

you must send the Director a notice by

certified delivery that you are

reclaiming the exemption. Your notice

must be signed by your authorized

representative certifying that the

information contained in your reclaim

notice is true, accurate, and complete. In

your notice you must do the following:

• Explain the circumstances of the

failure;

• Certify that you have corrected each

failure that caused you to lose the

exemption and that the waste again

meets all conditions as of the date you

specify;

• Describe plans you have

implemented listing specific steps you

have taken to ensure that the conditions

are met in the future; and

• Include any other information you

want the Director to consider when

reviewing your notice reclaiming the

exemption.

The storage and treatment exemption

is automatically restored if you reclaim

the exemption and meet these

conditions. However, the Director may

terminate a reclaimed conditional

exemption if he finds that your claim is

inappropriate based on factors

including, but not limited to, the

following: you have failed to correct the

problem; you explained the

circumstances of the failure

unsatisfactorily; or you failed to

implement a plan with steps to prevent

another failure to meet the conditions of

§ 266.230. In reviewing a reclaimed

conditional exemption under this

section, the Director may add conditions

to the exemption to ensure waste

management during storage and

treatment of the LLMW will protect

human health and the environment. The

language of the final rule has been

reworded slightly for clarity, but is very

similar to the proposal.

Comments Received on Reclaiming a

Storage and Treatment Exemption

Many of the commenters who

addressed the issue of reclaiming a

storage and treatment exemption

suggested that we provide a 30-day

period during which a failure to meet a

condition could be corrected without

loss of the exemption. A small number

of commenters suggested we impose a

90-day waiting period before a lost

exemption could be reclaimed. One

reason given for this waiting period was

to allow regulators time to review

documentation and conduct inspections

before reinstating the exemption. A few

commenters stated that the exemption

should be maintained unless the

violations endanger public health and

safety. Another commenter stated the

reclaimed exemption should apply both

automatically and retroactively from the

date of the loss. Yet another commenter

stated that a licensee who loses a

conditional exemption should not be

allowed to reclaim it, and that the rule

should contain heavy penalties for

failure to meet one or more of the

conditions.

Based on our studies of NRC storage

requirements coupled with the

conditions we have specified, we find

that LLMW will be safely managed as

LLW. We believe that because the

reinstatement is available, it is

appropriate that a licensee who fails to

meet a condition is required not only to

correct the failure, but also to

implement procedures that would

prevent such a failure from recurring. A

large quantity generator of hazardous

waste generally has 90 days to ship

waste to a treatment or disposal facility

before a permit for storage is required.

This time period should provide

sufficient time to correct most violations

of the conditions. We have also

indicated that the Director may revoke

the reclaimed exemption if he finds the

reclaim to be inappropriate. In addition,

the Director may add conditions which

must be met for a reclaimed exemption

if deemed necessary to protect human

health and the environment. Thus, we

believe that the approach we have

developed here, which allows EPA to

devote its attention to facilities that

raise particular concerns (for example,

through inspections following the

receipt of a reclaim notification), is

protective, and more appropriate, than a

scheme that would impose a 90-day

waiting period on all facilities

reclaiming the exemption. Such a

scheme would make it very difficult for

the generator to obtain reinstatement

before becoming subject to the

requirement to obtain a RCRA permit—

a result that is unnecessary and

undesirable since the NRC scheme is

protective without a RCRA permit, and

since EPA does not anticipate that it

would typically choose to expend the

resources to inspect and review reclaim

requests during the proposed 90-day

period. After the failure has been

discovered by the generator or an

inspector, but before a reclaimed

exemption is in place, the generator may

be subject to an enforcement action

requiring compliance, or monetary

sanctions, or both for violations that

occur as a result of the loss of the

exemption.

We also disagree with the commenter

who stated that a licensee who loses a

conditional exemption should not be

allowed to reclaim it. Safeguards

provided by NRC or NRC Agreement

State oversight, coupled with the

reclaim process we have outlined will

provide both appropriate enforcement

and a mechanism to correct any failure

of the conditions. We believe these

safeguards will deter noncompliance

and will ensure that any violations are

quickly corrected.

d. Recordkeeping requirements for the

storage and treatment exemption

(§ 266.250).

An important part of assuring that a

generator is complying with the

27236 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

conditions in today’s rule is mandating

the generator perform quarterly

inspections of the units and drums or

containers storing exempted waste, as

well as conduct an inventory of the

waste to prevent loss or other

mismanagement. You must keep records

of these activities to assure the Director

of consistent compliance with

exemption conditions. The annual

inventory records, coupled with records

of wastes placed in storage and records

of shipments for treatment or disposal,

will enable an inspector or other

regulator to view a complete file of all

conditionally exempt LLMW stored.

In our proposal, we used language

similar to § 266.230 in § 266.250. Our

intent was to ensure the availability of

a complete record for inspectors to

account for all stored conditionally

exempt LLMW. Because this language

appeared in two places in the

proposal—§§ 266.230(f) and 266.250—it

caused confusion. In the final rule we

have eliminated the redundancy and

combined all requirements relating to

recordkeeping in § 266.250. Generators

are responsible for demonstrating that

the conditions have been and are being

met, and must retain the necessary

records to substantiate that claim.

Violations of recordkeeping or other

requirements could subject you to

penalties and enforcement actions and,

if violations are repeated and serious,

could result in the revocation of your

storage and treatment conditional

exemption claim.

Comments Received on Recordkeeping

for the Storage and Treatment

Exemption

A few commenters addressed the

types of records we are requiring. One

commenter recommended we delete this

section because NRC and Agreement

States already have requirements for

inventory and records management,

objected that the frequency may conflict

with keeping occupational exposures

low, and requested an explanation for

three-year record retention if not

required by NRC. In response, we are

retaining § 266.250 because these

records relate to conditionally exempt

waste which can only be identified

through these records. We have clarified

that the frequency of inventory is

annual, thus minimizing the potential

for occupational exposure. The rule

requires record retention for three years

after disposal of the waste because this

is the general standard for RCRA record

retention. In the absence of the

conditional exemption ( for example, if

you lose the exemption), the waste

would have to be managed under RCRA

Subtitle C and records relating to the

waste need to be available. Note that in

some instances, NRC may require record

retention for longer periods, in which

case the records must be retained for the

time specified by NRC requirements

under 10 CFR part 20 (or NRC

Agreement State requirements). NRC

requirements always apply.

e. Return to RCRA of LLMW no longer

eligible for the storage and treatment

exemption (§ 266.255). For LLMW

containing short-lived radionuclides,

the storage and treatment conditional

exemption will be in effect only until

the radionuclide in the mixed waste has

decayed to a point that it is no longer

subject to NRC license requirements.

After the decay-in-storage process is

completed, the waste becomes subject to

RCRA Subtitle C requirements. Under

§ 266.255 of the final rule, your waste is

no longer eligible for the conditional

exemption when one of two things

occurs: (a) When ‘‘your LLMW has met

the requirements of your NRC or NRC

Agreement State license for decay-instorage and can be disposed of as nonradioactive waste * * * ’’ or (b) when

‘‘your conditionally exempt LLMW,

which has been generated and stored

under a single NRC or NRC Agreement

State license, is removed from storage.

* * * However, your waste may be

eligible for the transportation and

disposal conditional exemption at

§ 266.305.’’ In the first instance, our

intent with this language is to clarify the

applicability of the conditional

exemption during a decay-in-storage

time period and identify when RCRA

Subtitle C jurisdiction resumes. In the

second instance, we seek to make clear

that all RCRA regulatory requirements

apply during transport to a treatment or

disposal facility, unless the waste

qualifies for the transportation and

disposal exemption at § 266.305.

i. How does the storage and treatment

exemption facilitate decay-in-storage?

NRC generally allows research, medical,

and other facilities to store low-level

wastes containing radionuclides with

half-lives of less than 65 days (or more

under an amended license) until 10

half-lives have elapsed, and the

radiation emitted from the unshielded

surface of the waste (as measured with

an appropriate monitoring equipment)

is indistinguishable from background

levels. This process is known as decayin-storage. Our final rule facilitates

decay-in-storage by allowing LLMW

with short-lived radionuclides to remain

in storage until it is indistinguishable

from background levels of radioactivity.

The time allowed for LLW decay-instorage is based on the radionuclides

(and their half-lives) specified in a lowlevel waste generator’s NRC license.

Such management of LLW reduces

worker exposures to radionuclides since

workers are not exposed to wastes in

containers during preparation or

shipment to treatment and disposal

facilities. Once the specified

radionuclide decay has occurred, the

waste may be disposed of as nonradioactive waste after you ensure that

all radioactive material labels are

rendered unrecognizable. (See 10 CFR

35.92 and 10 CFR 20.2001.) On that

date, your waste is subject to hazardous

waste regulation under the relevant

sections of 40 CFR parts 260–271, and

the time period for accumulation of a

hazardous waste as specified in 40 CFR

262.34 begins.

ii. Change from proposed language.

This language is essentially unchanged

from the proposed storage and treatment

exemption with the exception of the

reference to ‘‘under a single NRC or

NRC Agreement State license,’’ where

the proposal stated ‘‘when your waste is

transported off-site.’’ The change was

incorporated here to be consistent with

the eligibility requirements in § 266.225

of the final rule. We discuss the reason

for this change in this preamble under

section VI.A.1.

iii. Comments received on storage

time limits and decay-in-storage. The

comments we received on time limits

for storage and decay-in-storage focused

upon addressing the three areas on

which we requested comment in the

preamble. They are discussed below.

Determining RCRA Reentry for

Radioactive Decayed Waste

In our proposal, we stated that ‘‘We

would appreciate comments regarding

the standard to use for determining

when the decayed waste would reenter

RCRA Subtitle C management.’’ (See 64

FR 63471.)

In both the proposed and final rule at

§ 266.255(a), the standard for

determining RCRA reentry is when your

LLMW has met the requirements of your

NRC or NRC Agreement State license for

decay-in-storage and can be disposed of

as non-radioactive waste. At that point,

management of any radionuclide in the

waste is no longer required by the NRC

or NRC Agreement State license. We

picked this time frame because it is at

this point that dual regulation ceases. It

is also familiar to NRC licensees.

Implementation will be clear, and will

not conflict with NRC regulations.

A number of commenters wrote to us

on this question. All but two supported

our proposal, which indicated our

reliance on NRC management during

decay-in-storage, and transfer to EPA’s

RCRA Subtitle C oversight when decay

is complete for the radionuclides

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27237

allowable under the NRC or NRC

Agreement State license provisions. The

two commenters who did not support

the time frame we proposed were

opposed to any conditional exemption

of LLMW from RCRA Subtitle C

management. These commenters believe

that having waste exit the RCRA cradleto-grave management system is contrary

to the fundamentals of RCRA.

The other commenters agreed the

transfer should occur on the date when

NRC considers the decay complete—

when the radionuclide with the longest

half-life in a container has decayed as

specified in the license (generally ten

half-lives), and when the radiation

emitted from the unshielded surface of

the waste is not above background

levels when measured by appropriate

monitoring equipment. One commenter

suggested that RCRA regulations should

apply when the licensee removes the

radiation label from the container—

when the radiation emitted is

indistinguishable from background

levels—since RCRA reentry on this date

would ensure continuous regulatory

oversight.

We appreciate the support of the

commenters who agree with our use of

the NRC standard for decay-in-storage.

Once the waste can be disposed of as

non-radioactive waste, the waste is

subject to hazardous waste regulation,

and time periods for accumulation

apply. We do not agree with the

commenters who broadly oppose any

conditional exemption because, as

stated earlier, we have found that NRC

or NRC Agreement State management of

this waste during storage, coupled with

the conditions we have specified in

§ 266.230, will ensure safe storage. In

the final rule, we have retained the

language in the proposal. We also

believe that the lower cost of disposing

of hazardous waste rather than LLMW,

coupled with RCRA Subtitle C generator

time limits (90–270 days depending on

applicable regulations) will ensure

timely waste management.

Appropriateness of Time Limit for

Storage and Treatment Exemption

In our proposal, we made the

following statement,

We are considering whether a general

storage exemption time limit should be

imposed. A time limit may affect both

facilities with untreatable legacy wastes and

future treatment and disposal capacity. We

invite comment on whether a time limit may

be appropriate, and, if so, on what basis that

time limit might be established. (See 64 FR

63471.)

The time limit for decay-in-storage is

established by the terms of the NRC

license. Under a decay-in-storage

scenario, LLMW is no longer subject to

NRC regulation when it has met the

requirements of your license for decayin-storage and can be disposed of as

non-radioactive waste. On that date

your waste is subject to hazardous waste

regulation under the relevant sections of

40 CFR parts 260–271, and the time

period for accumulation of a hazardous

waste as specified in 40 CFR 262.34

begins. If the decayed waste still

exhibits a RCRA hazardous waste

characteristic or is a listed hazardous

waste, then it must be shipped promptly

off-site for treatment, if needed, to meet

LDR treatment standards, and disposed

of at a RCRA compliant facility. Thus,

the RCRA accumulation time for a

formerly mixed—now solely

hazardous—waste begins when the

radionuclide with the longest half-life in

a container has decayed as specified in

the license (generally ten half-lives), and

the radiation emitted from the

unshielded surface of the waste is not

above background levels as measured by

appropriate monitoring equipment as

specified by NRC.

Some radionuclides take longer than

10 half-lives to decay to levels that are

indistinguishable from background. If

we limit the time for decay to ten halflives only, then some portion of LLMW

that is being stored may still emit

radiation levels above background. To

minimize radiation exposures, we have

used ‘‘and’’ in § 266.255 to ensure that

the LLMW does not emit radiation that

is above background levels as measured

by appropriate monitoring equipment.

In the final rule language, we defer to

the NRC practice for determining when

the waste can be managed as nonradioactive and radioactive labels can be

removed.

For those mixed wastes which are not

undergoing decay-in-storage, the

majority of commenters, including one

State, agreed that the length of time that

a LLMW could be stored under the

conditional exemption should be that

which is allowed for LLW under a

facility’s NRC or NRC Agreement State

license, because of the significant

management safeguards in place while

the mixed waste is subject to NRC or

NRC Agreement State regulations. Some

commenters indicated that the cost of

long-term storage and the rising trend in

disposal costs would provide an

incentive for generators to dispose of the

waste in a timely manner to limit their

overall costs for waste management.

One commenter stated the following,

‘‘Limiting the conditional exemption by an

artificial clock will not improve on the safe

and responsible management of LLMW under

the NRC’s jurisdiction. Instead it will * * *

divert limited resources. * * * ’’

A few commenters, including several

States, provided suggestions for time

limits we should impose for storage.

They suggest lengths of time from one

year, to two years, to three years, to an

unspecified limit based upon the

availability of treatment and disposal

capacity, particularly for legacy wastes.

Another commenter suggested a 5-year

limit be imposed. An organization of

state regulators commented that the

quantity of waste accumulated is

affected by the time period allowed and

suggested that EPA set a limit either of

time (3 years) or of capacity (volume).

Other commenters suggested we set a

capacity limitation of up to 10 kg

because the disposal of small quantities

of LLMW can be inefficient and

extremely costly. Another commenter

suggested that time limits be imposed

through site-specific variances, in

combination with capacity limitations

and conditions for storage.

We also heard from two commenters,

including one State, who believed a

time limit was inappropriate because

they opposed any exemption from

RCRA Subtitle C regulations, and

because NRC does not limit the volume

of waste that can be stored on-site. A

third commenter noted that RCRA

prohibits storage of mixed wastes

beyond specified periods, and no such

storage prohibition exists in AEA-based

regulations.

We agree with the large number of

commenters who stated that we should

adopt the NRC approach and not

establish a limit on the length of time

during which conditionally exempt

LLMW may be stored. Their underlying

argument was that the waste is safely

stored if provisions of storage in the

generator’s NRC or NRC Agreement

State license are being met. Our study

of radioactive material storage indicated

that NRC requires a licensee to maintain

sufficient storage space to safely manage

these wastes. For example, a generator

must maintain sufficient aisle space for

inspections and emergency response

actions, and safeguards to limit

exposures to ALARA. While NRC does

not specifically limit the volume of

waste stored, it does place a maximum

on the radioactivity a licensee can

manage. This provision of an NRC

license serves to limit storage volumes.

In addition, NRC discourages the

accumulation of wastes that can be

treated and/or disposed of. (See Generic

Letter 81–38, ‘‘Storage of Low-Level

Radioactive Wastes at Power Reactor

Sites.’’) This fact, combined with cost

considerations—that long term storage

has associated management costs, and

that the rising trend in disposal costs

serves to encourage immediate rather

27238 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

than delayed disposal—provides an

incentive to generators to treat and

dispose of wastes and avoid

accumulation.

Another factor encouraging

immediate disposal is the present

uncertainty regarding access to existing

LLRWDFs for many generators, given

the present LLW Compact system. Our

analyses of the protectiveness of the

NRC regulatory framework for managing

LLW indicated that LLMW would be

stored in a manner that provided

protection to human health and the

environment equivalent to that based on

EPA’s RCRA Subtitle C system. To limit

the storage time for wastes, including

legacy wastes, further than time periods

allowed by NRC or NRC Agreement

States would subject generators to

extraneous regulation without

significantly reducing the likelihood of

human health or environmental threats

arising from stored LLMW. Commenters

did not provide data which would assist

us in establishing a non-arbitrary basis

for choosing a time period for storage.

Potential Gap in Regulatory Coverage for

Decayed Waste

In our proposal, we invited comment

on whether waste being stored for decay

under 10 CFR 20.2001(a)(2) and 10 CFR

part 35 can be completely decayed

while at the same time reenter RCRA

Subtitle C without a gap in time during

which the waste is not regulated as

either hazardous or radioactive. We also

requested that you do the following.

‘‘* * * [I]ndicate in your comment what

mixed wastes you generate that have

radionuclides with activity levels which

would not qualify for the conditional

exemption we are proposing if it were based

on whichever occurred first—ten half-lives of

decay or not registering above background

levels. Also indicate how this limitation

would affect your management of the waste.’’

(See 64 FR 63471.)

We note that an NRC licensee is not

required to monitor the waste

immediately after decay of 10 half-lives

to determine if the radiation emitted is

indistinguishable from background

levels. Prior to monitoring, there may be

an interval when the waste is hazardous

only. However, it is only when the

waste is monitored and the radiation

emitted declared indistinguishable from

background levels that the radioactive

waste labels on each container must be

removed. Our final rule indicates in

§ 266.255 that the waste would then be

subject to RCRA Subtitle C jurisdiction

for the hazardous wastes it contains.

A number of commenters responded

to our request regarding a gap in

coverage for decay-in-storage wastes.

Some of them asserted there would be

no gap if we relied on NRC provisions

which require the generator to obliterate

the container’s radiation label once the

container has been surveyed by

appropriate monitoring equipment, and

the radiation level is determined to be

indistinguishable from background

levels. One commenter noted that NRC

requires documenting the release of the

material from NRC regulation. Such

documentation provides a date on

which appropriate RCRA Subtitle C

accumulation time periods would start.

Three commenters stated that if we

did not conditionally exempt LLMW

from the regulatory definition of

hazardous waste, then no gap in

coverage would occur. One of these

commenters did note that for decay-instorage waste, if we finalized a

conditional exemption, ‘‘RCRA control

would be gained upon destruction of the

radioactive label affixed on the waste

***’’

We appreciate hearing the suggestions

of these commenters on eliminating a

potential gap in regulation, and we

agree that the date of the obliteration of

the radioactive label (as the NRC

requires) provides a documented and

certain date for applying RCRA

accumulation time periods.

iv. Effect on biennial reporting. Under

40 CFR 262.41, a generator who ships

any hazardous waste off-site to a

treatment, storage or disposal facility; or

who treats, stores or disposes of

hazardous waste on-site must submit a

biennial report covering those wastes.

Newly generated low-level mixed

wastes that are exempted under this rule

may be subject biennial reporting in

accordance with 262.41 since, as

generated, they are hazardous. Wastes

only become nonhazardous when they

meet the eligibility criteria and

conditions of subpart N. Wastes that are

exempted under today’s storage and

treatment exemption may, as with other

RCRA wastes, again be subject to the

reporting requirements of 262.41 if the

waste is further managed outside the

scope of the exemption. The Hazardous

Waste Report Forms and Instructions

booklet (EPA Form 8700–13 A/B) for the

required reporting year explains who

must file the hazardous waste report,

and can be found at http://

www.epa.gov/epaoswer/hazwaste/data/

brs01/forms.html

Finally, it should be noted that

today’s final rule does not change the

ability of states to impose reporting

requirements above and beyond the

Federal requirements, e.g., annual

reporting or additional information

about the generated, treated, recycled, or

disposed hazardous waste.

f. Enforcement and enforcement

policy. You, as the RCRA generator and

NRC licensee, must be able to document

that your claim for an exemption is

accurate, that your waste is eligible, and

that you meet the conditions and

requirements specified in this rule. The

Director may use inspection and

information collection authorities to

verify whether you have met and

continue to meet the eligibility criteria,

the requirements, and the conditions.

Facilities that fail to meet any of the

conditions in § 266.230 for exemption

will be subject to RCRA Subtitle C from

the time that failure occurs. Utilities or

other LLMW generators that claim the

storage and treatment conditional

exemption, but fail to store and/or treat

the LLMW in compliance with the

conditions of the exemption, no longer

will be exempt from the applicable

provisions of RCRA. Failure to meet

requirements (in §§ 266.225 and

266.250) may result in an enforcement

action to ensure compliance, penalties

and fines. Moreover, imminent and

substantial endangerment provisions

under section 7003 of RCRA will

continue to apply to conditionally

exempt mixed waste as a safeguard

since the waste remains a statutory solid

and hazardous waste, so EPA can act in

the unlikely event of circumstances

which may pose a health or

environmental threat. All RCRA

statutory authorities that hinge on a

waste’s being a statutory solid and

hazardous waste still apply (for

example, sections 3007, 3013). We

anticipate that most generators will be

able to correct a failure to meet the

conditions within a 90-day period and

reclaim the exemption, thus avoiding

any practical effect of losing the storage

and treatment exemption and becoming

subject to RCRA subtitle C regulation.

The storage exemption is based upon

the NRC’s regulatory framework

governing the low-level radioactive

waste component of LLMW. The NRC

has a ‘‘General Statement of Policy and

Procedure for NRC Enforcement

Actions’’ (NUREG–1600) which states

the NRC’s policy regarding enforcement.

This policy specifies significant

consequences for violating NRC or

license requirements and takes into

consideration the specific circumstances

of a particular case. For example, if a

nuclear power plant violates an NRC

license, or tie-down conditions of a

license (see definition at the beginning

of this preamble), the nuclear power

plant (and the responsible person) may

be subject to substantial civil and

criminal penalties. Based on NRC

regulations and this policy, licensed

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27239

facilities have a strong incentive to

manage stored waste properly.

EPA Enforcement Policy Expiration

We intend to allow the mixed waste

enforcement policy to expire on October

31, 2001. Several commenters have

stated that EPA should extend the

‘‘Policy on Enforcement of RCRA

Section 3004(j) Storage Prohibition at

Facilities Generating Mixed

Radioactive-Hazardous Waste’’ for

sufficient time to allow authorized

states to adopt the rule we are

promulgating today. Commenters have

expressed concern that EPA may

rescind the mixed waste enforcement

policy or that facilities may be subjected

to ‘‘unreasonable enforcement actions,’’

including citizen suits, before they have

the opportunity to obtain the

exemption.

Commenters are correct that it may

take some time for states (who choose to

do so) to become authorized for this rule

allowing a storage and treatment

conditional exemption from RCRA

Subtitle C for mixed waste. This

rulemaking is intended to provide

flexibility to generators of mixed waste

where EPA requirements duplicate

performance standards required by the

NRC or NRC Agreement States. With the

promulgation of this rule, EPA is

expressing its view that facilities that

comply with certain criteria can safely

store mixed waste at NRC licensed

facilities. Thus, the federal government

is providing with this rule a potential

option for mixed waste generators to

store mixed wastes legally. We

recognize that States are not required to

become authorized to implement this

rule. States may choose to be more

stringent than the federal RCRA

program. Although we do not intend at

this time to extend the enforcement

policy, we will monitor the

implementation of today’s final rule.

Since States have generally followed

EPA’s lead on the enforcement policy,

we anticipate a good number will

choose to address dual regulation of

mixed waste generators by acting on this

rulemaking. States which do not adopt

the rule may provide an enforcement

policy within their states.

g. Storage unit closure. We received

two comments indicating that our

proposal may have generated some

confusion as to how the conditional

exemption would affect a facility’s

closure obligations for mixed waste

storage units already regulated under

RCRA. For example, one commenter

requested that EPA develop a

streamlined closure guidance for

applicable facilities that are NRC

licensed and can demonstrate an

excellent compliance history. Another

commenter specifically asked us to

clarify that a generator would be exempt

not only from the requirement to obtain

a permit, but also from closure

requirements. On reviewing these

comments, we realized that we had not

explicitly addressed closure of

previously regulated units, although it

was our intent to treat these units the

same way the proposal would treat new

units storing exempt waste, which is to

say that they would be subject only to

NRC decommissioning requirements,

and not also to RCRA closure

requirements. This is clear for new

units, since the waste would not be

hazardous and would not trigger closure

requirements.

Thus, we are modifying the final rule

to add § 266.260 to exclude LLMW

storage units containing conditionally

exempt waste from RCRA Subtitle C

closure requirements. Without this

modification, the rule could be read to

require that facilities currently

managing low-level mixed waste in

permitted or interim status units to

close these units because they no longer

would be receiving hazardous waste.

See 40 CFR 264.113 and 265.113. It was

not our intent to require LLMW storage

tanks or containers to be emptied and

decontaminated to comply with RCRA

closure requirements merely to be

refilled with the same waste (now

conditionally exempt). Such closure

would run contrary to our conclusion

that mixed waste managed under NRC

regulation renders RCRA Subtitle C

regulation, including closure,

unnecessary. We also see no human

health or environmental rationale for

treating previously regulated units

differently from new units in this

regard. Finally, we believe that

requiring RCRA closure before the unit

can manage the same waste under NRC

standards could unnecessarily increase

worker exposures to the radionuclides.

Therefore, a facility with a permitted

tank or container that is storing only

conditionally exempt LLMW, and has

stored only LLMW prior to the effective

date of this rule, is not subject to RCRA

closure requirements, and may

terminate their RCRA closure

obligations as to that unit by modifying

the facility permit under 40 CFR 270.42.

Similarly, an interim status storage

facility with a unit that has stored only

LLMW will not be subject to RCRA

closure requirement, and should amend

the facility closure plan when the stored

LLMW becomes conditionally exempt

after the effective date of this rule.

Without a modification to a facility’s

permit or closure plan, a facility would,

arguably, still be required to close

exempted units under RCRA. Of course,

a storage unit that also stores nonexempt hazardous waste, either prior to

or after the effective date of this rule,

will remain subject to the closure

requirements of 40 CFR 264.110 and

265.110 as applicable for areas storing

the non-exempt hazardous waste.

These changes related to closure of a

permitted or interim status storage unit,

as described above, do not affect the

applicability of corrective action

authorities that the EPA or authorized

State may have to address releases from

these units (or from other solid waste

management units at the facility). For

these facilities, all hazardous wastes

will be addressed either through the

NRC requirements for decommissioning

and decontamination (D&D) or through

the use of our corrective action

authorities. We note that current NRC

guidance states that when an NRC

inspector is preparing to inspect any

facility that is undergoing

decommissioning, the inspector should

coordinate with the U.S. Environmental

Protection Agency, or the appropriate

State agency if the decommissioning

involves hazardous waste. (See NRC

Inspection Manual, Chapter 2602, 2602–

05 General Guidance, 05.05 Inspection

Coordination.) EPA commits to working

with NRC to ensure that coordination

with EPA or the appropriate state

agency continues on these previously

regulated units undergoing

decommissioning.

B. Discussion and Response to

Comments on Storage Background

Studies

The storage and treatment provisions

of our proposed and final rule are based

on studies which we cited in the

preamble to the proposal. These studies

are available as supporting documents

to provide background information to

the public and to commenters on this

rulemaking. These studies are ‘‘Review

of Waste Management Practices and

Compliance History at Nuclear Power

Plants and Other Entities that Generate

Low-Level Mixed Waste.’’ (April 12,

1999); and ‘‘Comparison of the EPA’s

RCRA Requirements and the NRC’s

Licensing Requirements for the

Treatment (In Tanks and Containers)

and Storage of Low-Level Mixed Wastes

at Nuclear Facilities’’ (April 2001). To

determine the protectiveness of NRC

management requirements for LLMW,

we researched the LLW storage and

treatment provisions of NRC and

material licenses, reviewed NRC

compliance data on violations related to

storage and treatment of LLW, and

compared the regulatory framework of

27240 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

EPA and NRC related to waste

management. We found that safeguards

were in place which would protect

human health and the environment

during storage and treatment of LLW

and LLMW.

1. Review of NRC Licensing

Requirements

We researched NRC’s regulatory and

licensing framework under which lowlevel radioactive waste (LLW), and

therefore LLMW, is stored and treated

by waste generators. We examined

provisions concerning the on-site

storage and treatment of LLW to assess

whether these requirements are

protective of human health and the

environment with respect to preventing

releases of hazardous constituents. We

found that NRC and NRC Agreement

States regulate licensees through the

issuance of performance-based

regulations, regulatory guides, generic

communications (Generic Letters and

Information Notices), and NUREGs.

These documents work together to

enable the NRC and Agreement States to

ensure that nuclear power facilities and

other licensees are operating in a safe

manner. NRC uses these tools to guide

licensees on how to meet the

performance requirements in the

regulations, and to impose an effective

and enforceable regime to ensure

protectiveness of the management of

radioactivity.

For example, on November 10, 1981,

NRC issued Generic Letter 81–38,

‘‘Storage of Low-Level Radioactive

Wastes at Power Reactor Sites,’’ and

enclosure, ‘‘Radiological Safety

Guidance for Onsite Contingency

Storage Capacity.’’ In this generic letter,

NRC discussed its position on proposed

increases in storage capacity for lowlevel wastes generated by normal reactor

operation and maintenance, and stated

that the safety of the proposed increase

in capacity must be evaluated by the

licensee under the provisions of 10 CFR

50.59. The NRC also attached a

radiological safety guide to this letter.

This guide was developed for the design

and operation of interim contingency

low-level waste storage facilities, and

stated that necessary design features and

administrative controls would be

dictated by such factors as the waste

form, concentrations of radioactive

material in individual waste containers,

a total amount of radioactivity to be

stored, and retrievability of waste. NRC

also noted that this guidance document

should be used in the design,

construction and operation of storage

facilities, and that the NRC would judge

the adequacy of 10 CFR 50.59

evaluations based on compliance with

the guidance. (NRC also referenced IE

Circular No. 80–19, dated August 22,

1980, as providing information on

preparing 50.59 evaluations for changes

to radioactive waste treatment systems.)

NRC regulations concerning the

generation, storage, and treatment of

LLW are performance-based (for

example, no releases or leaks), whereas

RCRA regulations are more prescriptive

(where types of containers and waste

management are specified to prevent

leaks). Based on our review, the NRCenforceable tie-down conditions found

in individual licenses protect human

health and the environment from

exposure to hazardous wastes during

storage comparable to RCRA regulatory

requirements. A compilation of the NRC

documents that we reviewed can be

found in the docket. (See Ref. 3, EPA’s

compliance history review.)

2. Research on Compliance Records of

NRC and NRC Agreement State

Licensees

In addition to comparing NRC’s

storage requirements to EPA’s, we

researched compliance records related

to NRC radiation controls for nuclear

power plants and other licensees, to

determine if there were storage-related

releases or mismanagement of LLW. To

provide a baseline for the comparison of

NRC LLW violations, we queried two of

EPA’s generator information

management systems—the Biennial

Reporting System (BRS) and the

Resource Conservation and Recovery

Information System (RCRIS)—to obtain

the number of RCRA violations.

Using BRS data for 1995, 18,497

facilities were identified as having

generated hazardous waste (including

small quantity generators). These

records were merged with the

information from RCRIS, and then

sorted by RCRIS violation area codes.

The violations were sorted by group

(generator, other, treatment, and

transporter) and by state. Based on this

process, we identified a total of 4,547

violations by a total of 1,352 facilities

(or 7.3% of the 18,497 facilities). Of the

4,547 violations, 3,355 resulted from

noncompliance with the generator

requirements (manifesting,

recordkeeping, time-in-storage,

reporting, etc.); of the 3,355 generator

violations, 142 involved mixed waste.

To review the NRC facility

compliance records, we reviewed a

number of enforcement reports for both

NRC-enforced and Agreement Stateenforced licensing programs. (See

IV.B.1. for a summary of reports

reviewed.) The number of violations

reported (on a percentage basis) by NRC

for both nuclear power reactors (directly

licensed by NRC) and material licensees

(generally licensed by NRC Agreement

States) compares favorably with the

percentage of violations reported by

EPA. Fines, penalties, and other

consequences assessed by NRC and NRC

Agreement States serve to deter

violations. Based upon the compliance

data, the industries’ record is good and

will serve to protect human health and

the environment. In addition, the record

suggests that there will be relatively few

instances of violations of conditions

leading exempt LLMW to become

hazardous. We conclude that regulation

under Subtitle C is unlikely to improve

that record significantly. For further

information on applicable NRC

regulations refer to 10 CFR part 20

subpart I. Information regarding NRC’s

regulations, or guidance documents may

be obtained by either contacting the

NRC Public Document Room, at 11555

Rockville Pike, Room 0–1F21, Rockville,

MD 20852 (301–415–4737 or 800–397–

4209, Monday through Friday, 7:30 a.m.

to 4:15 p.m.), or by visiting NRC’s

Internet web page at http://www.nrc.gov.

3. Comparison of Regulatory and

Management Requirements of EPA and

NRC

We compared NRC documents used

in license preparation with the

permitting framework established under

RCRA. The technical design and

operating standards of the NRC

licensing program meet or exceed RCRA

standards in virtually all respects,

though there were differences in certain

procedural requirements and in areas

unrelated to actual releases of hazardous

waste from storage. Based on our

review, we do not believe these

differences undermine protection of

human health and the environment, or

that the super-imposition of RCRA

specific standards significantly

increases protection. (See Ref. 4, EPA’s

comparison of EPA and NRC storage

and treatment requirements.)

Relevant NRC licensing criteria are in

the docket for the NPRM, and also may

be obtained by contacting the NRC

public document room at 301–415–

4737, or accessing the NRC web site at

http://www.nrc.gov. These criteria,

while designed primarily to minimize

radiation risk, also address risk posed

by byproduct material in general,

including hazardous constituents.

Because of the unique nature of mixed

wastes, migration of hazardous

constituents does not occur except in

the presence of radionuclides.

Therefore, activities performed by a

licensee to safely store or address the

release of the radioactivity of mixed

waste will also result in the safe storage

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27241

of the chemical components of the

LLMW matrix. The applicability of NRC

licensing standards to mixed waste in

storage is the major reason for our

finding that, under specified conditions,

it is not necessary to also subject these

wastes to RCRA storage regulation also.

4. Conclusions Based on Our Studies

We reviewed the requirements of NRC

licenses, looked into the compliance

records of NRC and NRC Agreement

State licensees, and compared the

regulatory and waste management

requirements of EPA and NRC. Based on

these studies, we conclude that NRC

regulatory and licensing requirements

will effectively control risks from

hazardous constituents as well as

radioactive material. We found that

there are NRC regulatory safeguards in

place which will apply during the

storage and treatment of conditionallyexempt LLMW in tanks and containers.

Therefore, because NRC and NRC

Agreement State controls effectively

address the mismanagement of LLMW,

RCRA Subtitle C regulation is not

necessary for those wastes. As the court

explained in Military Toxics Project v.

EPA, 146 F.3d 948 (D.C. Cir. 1998),

‘‘where a waste might pose a hazard

only under limited management

scenarios, and other regulatory

programs already address such

scenarios, EPA is not required to

classify a waste as hazardous waste

subject to regulation under Subtitle C.’’

We find that NRC and NRC Agreement

State regulations governing LLW

address scenarios where LLMW may

pose a hazard.

5. Comments Received on Our Studies

We received several comments related

to the studies we completed prior to our

proposal. We heard from a number of

commenters regarding our comparison

of NRC’s and EPA’s regulatory and

management requirements. A number of

commenters concurred, indicating that

the technical record for proposing the

conditional exemption was compelling.

Some of them stated that our

comparison was comprehensive, and

supported our rulemaking proposal.

Others commenting on the

comparison encouraged us to conduct

additional research regarding whether a

single regulatory framework provides

sufficient protection to safeguard human

health and the environment. Some of

these commenters were concerned about

NRC monitoring for radiation but not

chemical releases. They also wondered

if NRC has ‘‘sufficient expertise to

properly deal with many of the issues

related to storage and disposal of

hazardous materials.’’ Another

commenter suggested that we require a

minimum secondary containment

volume for stored liquid LLMW. This

commenter wanted us to define

requirements for segregating chemically

incompatible wastes, and thought that

quarterly inspections were not

protective and should be re-evaluated.

Another commenter cited a 1986

chemical accident at a uranium

conversion facility as evidence that NRC

management of chemical hazards is

deficient.

We disagree with those commenters

who believe that the conditional

exemption we proposed is not

protective of human health and the

environment because of NRC’s focus on

radiation. Our thorough studies do not

support these concerns. Because

exempted LLMW is mixed, the same

management practices that address

concerns for containment of

radionuclides will also address

concerns for the containment of the

hazardous constituent. For example,

NRC requires that chemically

incompatible wastes be segregated to

prevent the release of not only

radionuclides, but also hazardous

constituents. In another example,

secondary containment for radionuclide

release accomplishes the containment of

hazardous constituents at the same time.

Further, if, or when, a chemical release

should occur, radionuclides are also

released. Radiation release detection as

required by the license will

simultaneously alert personnel of a

release of the chemical matrix in which

the radionuclides exist. Therefore,

management practices including

treatment, primary and secondary

containment, inspections, emergency

responses, and others, that reduce the

risk of radionuclide release will also

mitigate the release of hazardous

constituents. In summary, the expertise

required to manage LLW is very similar

to that necessary to manage hazardous

waste. The NRC management framework

provides protection for the hazardous

constituents contained in mixed waste.

(Note that 10 CFR 61.56 includes many

features related to the physical and

chemical characteristics of the waste.)

As we indicated in our studies, minor

differences exist between NRC’s and

EPA’s regulatory frameworks (including

inspection frequencies); the latter is

more prescriptive and the former more

performance based. However, taken

together, the systems are equivalent.

Both prevent releases, expeditiously

address releases that may occur, avoid

exposures, and protect human health

and the environment.

We also disagree with commenters

who believe our evaluation of the NRC

framework was incomplete (i.e., that

additional research was necessary to

determine the sufficiency of a single

regulatory framework). Rather, we agree

with those commenters whose review

concluded that our comparison was

comprehensive. Based on our previous

discussion, and on the written record

we reviewed, we do not believe that

additional research is necessary, or

would yield information contrary to the

conclusions we reached as a result of

our studies.

In order to ensure that the hazardous

portion of LLMW receives special

management attention, we have made

final the conditions in § 266.230 that

address both personnel training in

chemical waste management and

hazardous materials incidents response,

and emergency planning comparable to

RCRA.

One commenter’s reference to a 1986

radiation accident is not compelling

evidence to support delaying this rule.

Firstly, the date cited for the incident

does not take into account guidance or

operating procedures addressing such

events at facilities which NRC has

subsequently developed to prevent such

accidents. Two examples of NRC’s

attempt to address problems with

facilities as they arise are the NRC

document NUREG–0933, ‘‘A

Prioritization of Generic Safety Issues,’’

which provides priority rankings to

resolve safety issues that have a

significant potential for reducing risk,

and NUREG–1601, ‘‘Chemical Process

Safety at Fuel Cycle Facilities, August

1997, which specifically addresses the

handling of chemicals such as the one

involved in the 1986 accident.

Secondly, our review of waste

management practices at NRC and NRC

Agreement state licensed facilities in

recent years, demonstrates an excellent

record of safety, even when compared to

hazardous waste management under

RCRA. Thirdly, the accident cited by the

commenter was not a waste

management accident, but a chemical

processing accident (allegedly caused by

negligence). Finally, a single example of

an accident that occurred 15 years ago

does not lead us to conclude that the

two regulatory schemes do not provide

equivalent protection.

VII. How Are the Final Transportation

and Disposal Provisions Different From

the Proposal?

The final rule contains a number of

language changes to respond to

comments, and to make the storage and

treatment exemption, and transportation

and disposal exemption more consistent

with each other. However, the final rule

maintains conditional exemptions for

27242 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

storage and treatment, and

transportation and disposal. The

changes to our proposal for

transportation and disposal are

highlighted below, and are discussed in

greater detail in Section VIII of this

preamble.

Streamlined Language

In the final rule we have streamlined

our discussion of what the

transportation and disposal conditional

exemptions do and what the eligibility

requirements are (§ 266.305 and

§ 266.310, respectively). These changes

were made for clarity, and do not

represent a substantive modification.

Specification Related to Containers

The language we used in the proposal

was not clear as it related to the types

of containers that must be used prior to

placing the exempted waste in a

disposal cell. We have specified in the

final language that the container must

be: a carbon steel drum, an alternative

container with containment

performance in the disposal

environment equivalent to a carbon

steel drum, or a high integrity container

as defined by NRC. We made this

clarification in § 266.340.

Notification

The proposed rule required you to

notify multiple regulators and the

LLRWDF during implementation of the

conditional exemption. We proposed

that you notify three separate regulators

with various waste information. In

addition, we also proposed that you

notify the same agencies of any change

in information presented in the initial

notification, including a claim for the

exemption of any waste stream not

identified in the initial notification. In

response to public comments, we

streamlined the requirement of notifying

the regulators. In the final rule, you

must notify your RCRA regulatory

agency. However, you are not required

to notify the RCRA regulatory authority

at the state where the LLRWDF resides,

or NRC or NRC Agreement states that

licensed the LLRWDF as proposed. In

addition, we simplified the notification

so that it is a one-time notice in order

to identify who is claiming the

exemption. As a result, you are no

longer required to provide information

such as the process that generated the

waste, or the volume of the waste. You

are also not required to notify your

RCRA regulatory agency of changes

from initial notice.

We modified slightly the proposed

shipment-specific notice to a LLRWDF.

It now incorporates a couple of elements

that were previously in the notice to

regulatory agencies (treatment standard

verification and a signature

requirement). We also added a

statement indicating that the exempted

waste must be placed in a container for

disposal.

In the proposed rule, we proposed

that you notify your RCRA regulatory

agency in writing within 30 days of

learning of your failure to satisfy any of

the conditions and RCRA requirements

under the conditional exemption. In

response to comments, the final rule

does not require reporting of

noncompliance with paper work and

administrative types of RCRA

requirements such as notification and

recordkeeping. However, we do require

reporting of noncompliance with

conditions in § 266.315.

Recordkeeping Requirements

We removed the proposed

recordkeeping requirements associated

with the notice of change to the

regulatory agency, since this notification

is not required in the final rule. We

revised the duration you must keep your

exempted waste manifest records from

‘‘until closure of the disposal facility or

closure of your facility’’ to reliance on

the existing NRC or NRC Agreement

State requirement. We also revised your

recordkeeping duration for the notice to

the LLRWDF from ‘‘until closure of the

disposal facility or closure of your

facility’’ to ‘‘for three years after the

exempted waste is sent for disposal.’’

Point of Exemption

The point at which a waste meeting

land disposal restriction (LDR)

treatment standards is conditionally

exempted from RCRA regulatory

requirements remains unchanged from

the proposal. However, we changed one

of the elements that described the point

of exemption (§ 266.330[b]) from

‘‘receiving return receipts from the

regulators’’ to ‘‘receiving return receipts

from the LLRWDF.’’

Loss of Exemption

In the final rule, we do not require

maintaining records or providing notice

as conditions of keeping the exemption.

Notice or recordkeeping becomes a

RCRA regulatory requirement instead.

Failure to meet either a recordkeeping,

or a notice requirement will not result

in the automatic loss of the exemption

of the waste. However, the Director may

terminate the conditional exemption for

your waste or add additional conditions

to the exemption for serious or repeated

noncompliance with any of the RCRA

requirements of Subpart N. In addition,

such a failure may subject you to an

enforcement action requiring

compliance, monetary sanctions, or

both.

In another change, we specified

minimum reporting requirements in

§ 266.355(a) when you report the loss of

an exemption.

Finally, in § 266.355(a) we added the

provision of orally notifying your RCRA

regulatory agency within 24 hours of

discovery of failure to meet any of the

conditions if the failure may endanger

human health or the environment. This

oral notice must be followed up with a

written notice within 5 days.

Reclaiming the Transportation and

Disposal Exemption

In the final rule, we have slightly

modified the procedure you must follow

to reclaim an exemption for your waste.

You are required to send a notice to

your RCRA regulatory agency, by

certified delivery with return receipt

requested, that you are reclaiming the

exemption for your waste. In the final

rule, the reclaimed exemption becomes

effective after you receive the return

receipt from this reclaim notice. This

procedure is different from the proposal,

which allowed the reclaimed exemption

to become effective as soon as you meet

the reclaim requirements for your waste.

In addition, you may initiate the reclaim

process for your waste only after you

have received the return receipt from

your RCRA regulatory agency

confirming that it has received your

notice that you have lost the exemption

for your waste. We made these change

in response to comments received on

our question on whether there should be

a waiting period prior to a reclaimed

exemption becoming effective.

VIII. Discussion and Response to Major

Comments on the Transportation and

Disposal Conditional Exemption

In today’s rule, we are finalizing a

conditional exemption from RCRA

Subtitle C regulation for hazardous

wastes containing LLW and/or NARM

that are transported and disposed of

subject to NRC or NRC Agreement State

regulation. Eligible wastes (LLMW or

Eligible NARM) that are managed in

accordance with the conditions under

§ 266.315 are exempt from the RCRA

regulatory definition of hazardous

waste. The conditional exemption takes

effect once specified actions have

occurred. You then may manage your

wastes as you would solely radioactive

wastes. Since the point of exemption

takes place when a waste is placed on

a transportation vehicle destined for a

low-level radioactive waste disposal

facility (LLRWDF) for disposal, the

exempted waste need not comply with

RCRA Subtitle C transport and disposal

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27243

requirements. This conditional

exemption acknowledges the protection

provided by NRC and NRC Agreement

States regulations for the manifest,

transportation, and disposal of the

radioactive portion of the eligible waste.

The conditions for the transportation

and disposal exemption are listed in

§ 266.315, and include the following:

• The wastes must meet LDR

treatment standards;

• Waste shipments from those of you

who are not already subject to NRC or

NRC Agreement State manifest and

transportation regulation must comply

with the NRC (or NRC Agreement State)

manifest and transportation regulations;

• The wastes must be disposed of at

a LLRWDF licensed by NRC (or

Agreement State); and

• The wastes must be disposed of in

containers that meet specified minimum

requirements.

Your waste automatically loses its

transportation and disposal exemption

if you failed to meet any of the

conditions specified in § 266.315. You

must notify your RCRA regulatory

agency when your waste loses its

exemption. You may be subject to an

enforcement action requiring

compliance, monetary sanctions, or both

for any violations that occur as a result

of this loss of exemption. You may

reclaim your transportation and

disposal conditional exemption for your

waste if it again meets the conditions

specified in § 266.315, and you notify

your RCRA regulatory agency that you

are reclaiming the exemption for your

waste.

A. What Is the Basis of the

Transportation and Disposal

Conditional Exemption?

We determined that a conditional

exemption from RCRA Subtitle C

regulation for the transportation and

disposal of eligible waste is appropriate

because we concluded that management

of eligible waste under NRC and NRC

Agreement State regulations coupled

with the additional conditions set forth

in today’s rule provide a comparable

level of protection for the RCRA

constituents. We reached this

conclusion after a thorough analysis

comparing NRC transportation and

disposal requirements to RCRA

hazardous waste regulations. We believe

that this analysis demonstrates that NRC

regulations effectively protect human

health and the environment for the

circumstances allowed under today’s

conditional exemption. Thus, we do not

believe the waste managed under these

conditions should be subject to Subtitle

C, since Subtitle C controls are not

necessary to protect human health and

the environment. For a complete

explanation of the legal basis for

establishing a conditional exemption

under RCRA see the preamble to the

Military Munition Rule at 62 FR 6636

(February 12, 1997). See also MTP vs

EPA, 146 F3rd 948 (D.C. Cir.1998)

upholding EPA authority to establish

conditional exemptions under RCRA.

We received comments both

supporting and opposing the general

approach of our proposed rule. Fortynine commenters—including generators,

some states, RCRA facilities, members of

the public, and the NRC—supported our

overall approach. They believed that our

proposal was sound and would provide

the important and necessary regulatory

protection and flexibility for the

management of the eligible waste.

Of the commenters that questioned

our proposed rule, some stated that

NRC’s regulations and requirements

were established to protect against

radioactive hazards and not against

hazards posed by RCRA hazardous

waste. Therefore, they believed that it is

not appropriate to rely on NRC

regulations for protection against

chemical hazards. We agree that NRC

and NRC Agreement State regulations

were not established for the primary

purpose of protecting against risks

posed by RCRA hazardous waste.

However, we disagree with the

conclusion that it is not appropriate to

rely on these regulations for protection

against hazards posed by RCRA wastes.

Specifically, concerning the

transportation of hazardous material,

EPA and NRC have expressly adopted

DOT regulations governing the

transportation of hazardous material.

The Department of Transportation

(DOT) packaging and transportation

requirements for a LW provide adequate

protection against chemical hazard

during the transportation of an eligible

waste meeting the LDR treatment

standards. DOT Hazardous Material

Regulations (HMR; 49 CFR parts 100

through199) contain requirements for

transporting hazardous materials. DOT

HMR contains packaging, labeling,

documenting, placarding, and other

requirements for transporting hazardous

material. The DOT hazard classification

system includes materials that are

explosive, flammable, reactive, toxic,

infectious, corrosive, radioactive, and

gases. Hazardous materials subject to

the HMR must, at a minimum, be

packaged in strong tight containers that

can safely survive transportation

incidents. EPA has adopted DOT

regulations governing the transportation

of hazardous materials to protect human

health and the environment in the

transportation of hazardous waste. NRC

LLW packaging and transportation

regulations have also adopted DOT

regulations for transporting radioactive

material. Under this conditional

exemption, the exempted waste is

required to meet the LDR treatment

standards and therefore no longer

exhibits the flammable, corrosive, and

reactive characteristics. As a result, the

transportation packaging requirement

for the exempted waste do not need to

consider these hazards. The remaining

hazard of concern of the exempted

waste is the toxicity of the waste. We

consulted with DOT who stated, and we

agreed, that the transportation

packaging requirement for the

transportation of the LLW is adequate

for the protection against the toxic

hazard that would remain in the waste

that has met LDR treatment standards.

(See Ref. 19, Discussion with DOT on

mixed waste transportation.) Therefore,

the exempted waste, once meeting the

LDR treatment standards, will be

properly managed if it is packaged and

transported as a LLW. For these reasons,

we concluded that packaging and

transportation controls that apply to a

LLW are adequate, appropriate, and will

ensure safe management of the

exempted waste during transportation.

Concerning tracking of hazardous

waste, the exempted waste (a

radioactive waste) is subject to NRC or

NRC Agreement State equivalent

manifest regulations. We conducted a

detailed comparison between RCRA and

NRC manifest regulations that track the

movement of the exempted waste (See

Ref. 12, Comparison of NRC and EPA’s

Waste Tracking.) We determined that

NRC’s waste tracking regulations are at

least as stringent as RCRA regulations.

Most notably, both RCRA and NRC

manifests were developed to be

consistent with the DOT shipping paper

regulations at 49 CFR 172.200.

Therefore, RCRA and NRC manifests

share many basic elements, including

closed-loop notification and tracking,

exception reporting, and mandatory

retention of manifests. However, the

NRC manifest regulations exceed the

RCRA Subtitle C manifest regulations in

several areas, such as requiring longer

manifest retention times in certain cases

and specifying more stringent schedules

for generators to investigate shipments

for which they have not received the

LLRWDF’s acknowledgment of receipt.

Therefore, we believe that NRC

regulations for tracking low-level waste

meet our needs to ensure that the

exempted waste arrives at the

appropriate licensed LLRWDF, and that

NRC provides adequate mechanisms for

27244 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

Federal or state oversight of the waste

shipments.

We also reviewed NRC regulations (10

CFR part 61) and the practices of lowlevel waste disposal facilities to

determine if they provide levels of

human health and environmental

protection comparable to RCRA Subtitle

C permitted disposal facility

requirements. (See proposal F–1999–

ML2P–FFFFF, Ref. 7, Technical

assessment of LLRWDFs.) This analysis

included the elements of siting, disposal

cell engineering and design, and

management control. Our assessment

indicates that NRC regulations for

disposal facilities provide protection

comparable to that provided by RCRA

Subtitle C regulations, particularly given

that we are requiring that the RCRA

hazardous constituents be treated to

LDR treatment standards and that the

waste be placed in certain types of

containers prior to disposal. More

detailed discussion of this technical

analysis can be found in section VIII.G.

of today’s document.

In summary, our analysis of NRC

transportation and disposal regulations

leads us to conclude that the NRC

regulations coupled with a few

additional conditions provide adequate

protection of human health and the

environment, and that regulation under

RCRA Subtitle C is not necessary. The

fact that NRC regulations were designed

primarily for the purpose of protecting

against radioactive waste is largely

irrelevant since the regulations are

designed to ensure protective

transporting, tracking, and containment

of the waste, which will protect against

chemical hazards as well as radiation

hazards.

B. What Wastes Are Eligible for the

Transportation and Disposal

Conditional Exemption?

As we proposed it, the transportation

and disposal conditional exemption

would apply only to LLMW that meets

the waste acceptance criteria of a

LLRWDF and Eligible NARM. A LLMW

is a RCRA hazardous waste as defined

in 40 CFR part 261, containing a lowlevel radioactive waste as defined in 10

CFR 61.2. A table identifying the types

of RCRA hazardous waste commonly

found in LLMW is provided as

background material in the RCRA

Docket (See Ref. 10, RCRA Hazardous

Constituents and Waste Codes.) In the

final rule, Eligible NARM is defined as

a NARM waste that contains RCRA

hazardous waste, and meets the waste

acceptance criteria of, and is allowed by

State NARM regulations to be disposed

at a LLRWDF licensed in accordance

with 10 CFR 61 or NRC Agreement State

equivalent regulations.

NARM is defined by its origin of

generation rather than by the level of its

radioactivity. The manner in which

NARM waste is managed depends on

the radioactive content of the material.

In most cases, NARM waste is

radiologically similar to low-level

radioactive waste. Because today’s rule

applies to LLMW, we are extending the

exemption to NARM only when its

radioactive content is comparable to

LLW and is managed as such. A

LLRWDF is required to establish waste

acceptance criteria as part of its license

requirements to ensure protection of

human health and the environment. The

waste acceptance criteria are derived

from the performance criteria of the

disposal facility and ensure that only

those wastes that can be accepted and

properly managed at the LLRWDFs are

accepted. Therefore, we are requiring

that in order to be eligible for the

transportation and disposal exemption,

your Eligible NARM waste must meet

the waste acceptance criteria of a

LLRWDF and therefore will be properly

managed.

In the proposed rule, we solicited

comments on the applicability of this

conditional exemption to hazardous

waste contaminated with NARM. We

received comments that both supported

and questioned the inclusion of NARM

contaminated with RCRA hazardous

waste for the exemption. Those who

supported including this waste stated

that we should not exclude NARM

waste solely because it is not regulated

under the Atomic Energy Act (AEA).

They also stated that the source of

generation of the radioactive material,

under which NARM is defined, should

not have bearing on whether the NRC or

Agreement State equivalent regulations

provide a sufficient level of protection

for the waste. They stated that NARM is

similar to LLW, and should be eligible

for the conditional exemption.

Those who opposed the inclusion

believe that the NRC has no regulatory

authority over NARM. We note that

although NRC does not have regulatory

authority over NARM, the States may

regulate this material. Some states have

laws and regulations in place for

managing this material. We note that all

three states that license the existing

LLRWDFs have such authority. In the

case of Non-NRC Agreement states,

where the NRC implements the

radioactive material management

regulations, the States may enact

additional laws and regulations to

regulate NARM. However, to ensure that

there will not be regulatory gap under

this conditional exemption for NARM,

we are specifying that you can claim

this exemption for your Eligible NARM

waste and dispose of the NARM waste

at a LLRWDF only if state laws and

regulations governing that LLRWDF

allow the disposal of NARM waste. In

addition, as discussed earlier the waste

acceptance criteria of a LLRWDF will

ensure that any NARM accepted at a

LLRWDF will meet the licensing

requirement and will be properly

managed. Therefore, there is no

regulatory gap in managing NARM

waste even though the NRC does not

have regulatory authority over this

waste.

We received two comments

requesting that DOE waste be excluded

from the exemption due to oversight

concerns. Rather than excluding DOE

waste from eligibility for the conditional

exemption, we fashioned the

conditional exemption to ensure

external oversight of DOE waste. First,

to be exempt, eligible waste must be

disposed of at an NRC or NRC

Agreement State licensed LLRWDF.

Second, DOE must follow the NRC or

NRC Agreement State equivalent

manifest and transportation regulations.

These conditions ensure that any

exempted DOE wastes are under the

oversight of an external regulatory

agency. (As explained below, in the case

of the manifest and transportation

provisions, the agency would be the

RCRA regulatory agency, by virtue of a

condition contained in the final rule.)

C. What Conditions Must You Meet for

Your Waste To Qualify for and Maintain

the Transportation and Disposal

Conditional Exemption?

1. Land Disposal Restriction Treatment

Standards

As we proposed, eligible waste must

meet the RCRA Land Disposal

Restriction (LDR) treatment standards

before it is transported and disposed of

as an exempted waste. You can find the

RCRA LDR treatment standards in 40

CFR part 268, subpart D.

In HSWA, Congress prohibited the

land disposal of hazardous waste unless

the waste is treated to minimize threats

to human health and the environment.

The statute required EPA to establish

treatment standards that will

substantially diminish the toxicity or

mobility of hazardous waste to

minimize short and long-term threats to

human health and the environment. We

have developed a series of treatment

standards for hazardous waste based on

the best demonstrated available

technology (BDAT) for treating the

waste. The LDR treatment standards

ensure that the organic constituents are

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27245

destroyed or substantially reduced and

the mobility of the toxic metals are

stabilized to minimize threats to human

health and the environment. In contrast,

the approach to waste treatment for a

radioactive waste is stabilization and

containment while the waste undergoes

radioactive decay. We could not

confidently conclude that NRC waste

stabilization requirements for

radioactive waste assure long term

protection of human health and the

environment from all types of RCRA

hazardous waste. Therefore, we have

decided to maintain the LDR treatment

requirements as a condition of the

exemption.

In some instances, a RCRA hazardous

waste becomes a nonhazardous waste

when it is treated to the designated LDR

treatment standards. These situations

involve treatment standards for

ignitable, corrosive, and reactive

characteristic wastes, and most

standards for the toxic characteristic

wastes. Some of the treatment standards

for hazardous debris also allow the

treated debris to be managed as a

nonhazardous waste. In addition, there

are other processes (e.g. delisting under

40 CFR 260.20 and 260.22) through

which a RCRA hazardous waste can

become a nonhazardous waste. Under

these situations when your LLMW or

Eligible NARM waste is no longer a

RCRA hazardous waste, you do not need

to claim the transportation and disposal

conditional exemption in order to

manage and/or dispose of the resulting

waste as a LLW or a NARM waste. The

resulting waste would be regulated as a

radioactive waste only. You should

contact your RCRA regulatory agency if

you have questions concerning the

treatment standards or the processes

which may allow your LLMW or

Eligible NARM waste to be regulated as

non-hazardous waste.

You must continue to comply with all

other provisions associated with the

LDR treatment regulations (e.g.

sampling and analysis to determine

compliance with LDR treatment

standards or certifying such

compliance). Additionally, recognizing

the public’s concern over potential

radiation exposure from mixed waste

testing we developed a mixed waste

testing guidance. The guidance was

developed in close coordination with

NRC, and is titled ‘‘Joint NRC/EPA

Guidance on Testing Requirements for

Mixed Radioactive and Hazardous

Waste.’’ You can find this guidance at

EPA’s mixed waste web site at

(www.epa.gov/radiation/mixed-waste/).

The primary purpose of the guidance

document is to assist you in the

characterization of mixed waste in

accordance with RCRA regulations,

while keeping radiation exposure as low

as reasonably achievable (ALARA). The

guidance document emphasizes

flexibility in the RCRA testing

requirements to incorporate the ALARA

concept.

In the proposed rule, we solicited

comments on whether we should

exclude LDR Phase IV alternative soil

treatment standards from the LDR

treatment standards that eligible waste

must meet for you to claim the

conditional exemption. The majority of

the commenters supported including

the alternative soil treatment standard

as part of the LDR treatment standards

which must be met to qualify for the

conditional exemption. The Association

of State and Territorial Solid Waste

Management Officials commented that

this decision should rest with the States

in which the disposal will occur.

We believe that it is appropriate to

include the alternative soil treatment

standards under this conditional

exemption. We promulgated the

alternative soil treatment standards

under the LDR Phase IV Rule found at

§ 268.49 to provide flexibility for

remediation activities. The LDR Phase

IV Rule can be found at [63 FR 28602–

28622, May 26, 1998]. In the LDR Phase

IV Rule, we determined that the

technology-based treatment standard (90

percent reduction capped by 10 times

the Universal Treatment Standards) for

contaminated soil is sufficiently

stringent to satisfy the core requirement

of RCRA § 3004(m) that short and longterm threats to human health and the

environment are minimized. The

alternative soil treatment standards also

consider the need to encourage

remediation of contaminated soil which

involves excavation and treatment of the

soil. In the case of this conditional

exemption, wastes treated to LDR

treatment standards, including the

alternative soil treatment standards,

must be placed in a container for

disposal. We believe the soil treatment

and waste container requirement, in

conjunction with the protection

provided by the radioactive waste

disposal facility, ensure protection to

human health and the environment. We

note that states may impose more

stringent requirements when they adopt

this rule. In conclusion, the final rule

does not exclude the alternative soil

treatment standard in § 268.49 from the

LDR treatment standard in today’s

transportation and disposal conditional

exemption.

2. Manifest and Transportation

a. If you are subject to NRC or NRC

Agreement State regulation: Today’s

final rule relies on NRC or NRC

Agreement State manifest and

transportation regulations (which also

refer to DOT regulations at 49 CFR parts

100–199) to control the manifesting and

transportation of the exempted waste

shipment. If your exempted waste

streams are already subject to these

externally regulated manifest and

transportation requirements, you have

no additional transportation and

manifest requirements or conditions

under today’s rule. The Agency believes

it is unnecessary to impose additional

requirements on you because your waste

shipments already are subject to NRC,

NRC Agreement State, or DOT

enforcement actions if you failed to

meet the manifest or transportation

regulations.

b. If you are not directly subject to

NRC or NRC Agreement State

regulation: Today’s rule imposes a

condition on facilities, such as DOE

facilities, whose radioactive waste

shipments are not directly subject to

NRC or NRC Agreement State manifest

and transportation requirements. The

condition requires these facilities to

comply with the manifest requirements

at 10 CFR part 20 (or NRC Agreement

State equivalent regulations), and/or the

transportation requirements under 10

CFR part 71 (or NRC Agreement State

equivalent regulations). This condition

is necessary because such facilities are

not subject to enforcement actions by

NRC or an NRC Agreement State in the

event they fail to meet the NRC or NRC

Agreement State specified requirements.

Hence, as an alternative to NRC or NRC

Agreement State oversight, when such a

facility fails to meet this condition in

today’s rule, the facility’s waste will

automatically lose its exemption. This

facility may become subject to an EPA

(or RCRA-authorized State) enforcement

action requiring compliance, monetary

sanctions, or both, thus providing an

external enforcement mechanism that

would otherwise not exist. This

approach addresses concerns regarding

shipment of conditionally exempted

waste by facilities who are not already

subject to NRC or NRC Agreement State

manifest and transportation regulatory

requirements. This condition also

ensures the consistent application of the

manifest and transportation

requirements for the exempted waste.

This exemption is contingent upon

waste disposal in an NRC, or NRC

Agreement State, licensed LLRWDF.

Therefore, it is important that a

mechanism be in place to track all

exempted waste in transit and confirm

that the exempted waste arrives at the

appropriate disposal facility. This

exemption also relies on the added

27246 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

protection provided by the NRC, or NRC

Agreement State regulations for the

transportation of the exempted waste.

We do not believe this condition will

impose an unreasonable burden on

these facilities who are not directly

subject to NRC or NRC Agreement State

manifest and transportation

requirements. Therefore, we are

maintaining this condition as proposed.

Some commenters expressed a broad

concern that reliance on the LLW

manifest would not provide carriers or

emergency responders with the

information they need to respond to

transportation incidents involving the

exempted waste. We note that even

though the LLW manifest does not

contain specific information of the

chemical constituent of the exempted

waste, the emergency response

procedures for an incident involving

radioactive material are very rigorous

and similar to the procedures used in

responding to an incident involving a

chemical material. In addition, an NRC

or NRC Agreement State LLW manifest

also contains an emergency contact

telephone number allowing the

emergency responder to contact the

shipper for additional information on

the waste contained in the particular

shipment if needed.

It is important to note that the

exempted waste will be treated to meet

the RCRA LDR treatment standards. In

particular, the acute hazards related to

the reactivity, corrosivity, and

ignitability characteristics of the RCRA

characteristic waste that are of primary

concern during transportation, will be

eliminated when a waste is treated to

LDR treatment standards. The chronic

toxicity of the toxic characteristic and

listed wastes will also be greatly

reduced. Also, the exempt waste will

not contain free liquids, which will

significantly enhance containment of

the waste.

A professional emergency responder

is trained to manage a wide variety of

transportation incidents. The

responders will approach radioactive

wastes with the same care and caution

as they would use in approaching a

LLMW. Radioactive constituents

generally have similar exposure

pathways to humans (e.g. dermal

contact, ingestion, or inhalation) as

RCRA hazardous constituents do.

Therefore, emergency response

personnel would take the same

precautions as they would for a RCRA

hazardous waste such as wearing

protective clothing and carrying

supplied air. Also, because radioactive

wastes present a risk based on the

responder’s proximity to the waste

package, emergency responders also

will limit their proximity and time near

the waste as they would for a RCRA

hazardous waste. Therefore, we believe

the concern raised by these commenters

is properly addressed due to the nature

of the waste and the procedures and

precautions that will be taken for

responding to a radioactive waste

transportation incident.

3. Container Requirement

Today’s rule requires placing the

exempted waste in a container before

disposal. The container must be one of

the three types specified under

§ 266.340:

• A carbon steel drum;

• A container with equivalent

containerization performance in the

disposal environment as a carbon steel

drum; or

• A high integrity container as

defined by NRC.

It is your responsibility to make the

appropriate arrangements and ensure

that the exempted waste is placed in a

container for disposal.

The proposed rule did not require

specific types of containers, but instead

specified that the container ‘‘cannot be

cardboard or fiberboard boxes.’’

However, a commenter indicated that

they did not believe that this standard

was prescriptive enough to ensure

appropriate containment of the waste.

We agree with this comment. In

response, we have specified in the final

rule the acceptable types of containers

which are consistent with the technical

analysis performed during the

rulemaking process.

In the proposed rule, we noted that

both EPA and NRC disposal facility

requirements provide similar features to

isolate waste from its disposal

environment. An NRC disposal facility

is not required to have a synthetic liner,

whereas a RCRA facility is. To ensure an

equally protective disposal environment

for purposes of the conditional

exemption, we compared the

performance of the RCRA hazardous

waste landfill synthetic liner to the

performance of a carbon steel drum and

a high integrity container (as defined by

NRC). We found that the performance of

these specific containment devices are

comparable for the purpose of retaining

the integrity of the waste in the disposal

cell (See Ref. 7, Technical Evaluation.)

The Agency based its proposed

container requirement on the landfill

liner and container comparison

analysis, but now realizes that the

proposed regulatory language could

allow disposal alternatives that do not

provide the same protections as we

intended. The proposal language

specified that the container cannot be

cardboard or fiberboard boxes. Some

commenters noted that the description

would allow paper boxes or wooden

crates that are also unacceptable.

The final requirement is still flexible

in that it allows for alternatives to

carbon steel drums as long as the

container used achieves equivalent

performance. We also allow the use of

high integrity containers (HICs) since

they must pass a series of rigorous tests

as specified by NRC to demonstrate that

they will retain their structural integrity

for 300 years or more. These HICs are

more often used by LLRWDFs to

stabilize and contain wastes with higher

radioactivity than LLMW. We decided

to codify HICs for purposes of this

conditional exemption because they

provide containment equivalent to

carbon steel drums.

4. Waste Disposal Destination

Today’s final rule requires that the

exempted waste must be disposed of

only at a LLRWDF licensed and

regulated by NRC, or an NRC Agreement

State, in accordance with 10 CFR part

61 or NRC Agreement State equivalent

regulations. It is your responsibility to

make the appropriate arrangements to

dispose of the exempted waste at the

designated LLRWDF. This provision is

unchanged from the proposal.

Some commenters stated that NRC

shallow land burial facilities are

‘‘designed to fail,’’ and cited past

failures at such facilities. Our

investigation indicated that the facilities

cited by the commenters were designed

and operated prior to NRC’s codification

of regulations for LLRWDFs in 1982 at

10 CFR part 61. NRC promulgated these

requirements in response to the failures

and problems cited by the commenters.

Since that time, the NRC and the NRC

Agreement States have worked

aggressively with the LLRWDF licensees

to ensure that the LLRWDFs meet

current regulatory requirements and

additional NRC technical guidance

specified in technical position papers.

In particular, the NRC waste form

technical position paper ‘‘Technical

Position on Waste Form (Revision 1)’’

contains specific criteria on how the

waste should be stabilized prior to

disposal at LLRWDF. The waste form

criteria are generally incorporated into

the LLRWDF’s license as waste

acceptance criteria. In addition, since

1982, NRC regulation has prohibited

disposal of liquid waste. Based on EPA’s

analysis of NRC and NRC Agreement

State LLRWDFs, EPA concludes that

LLMW treated to LDR standards will be

safely managed at such facilities. (See

discussion in VIII. G.)

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27247

Prior to our proposed rule, States

expressed concern about DOE’s selfregulating status for managing the

radioactive material. Generally, States

that regulate radioactive material have

no regulatory oversight authority for

DOE’s radioactive material. However,

NRC and NRC Agreement States have

regulatory authority over commercial

and other non-self regulating federal

facilities that manage radioactive

materials. Therefore, in today’s rule, we

are exempting only those wastes

disposed of at an LLRWDF that is

licensed and regulated by NRC or an

NRC Agreement State. This approach

will ensure that all exempted waste

(radioactive waste) remains under an

external regulatory framework and

enforcement authority. DOE may take

advantage of the transportation and

disposal exemption if it disposes of its

exempted waste in LLRWDFs licensed

and regulated by NRC or an NRC

Agreement State. This approach

addresses the States’ concern and allows

DOE to take advantage of the exemption.

All of the comments on this provision

supported the Agency’s proposed

approach.

D. What Other Provisions Must You

Meet?

The Agency is finalizing the RCRA

notification and recordkeeping

requirements for this rule. These RCRA

requirements are obligations that you

must meet at all times. If you fail to

meet these RCRA requirements, you

must take prompt actions to return to

compliance with these RCRA

requirements. Your waste will not

automatically lose the transportation

and disposal conditional exemption if

you fail to meet these RCRA

requirements for your waste. However,

your RCRA regulatory agency may

terminate a conditional exemption or

add additional conditions to an

exemption for serious or repeated

noncompliance with any of the RCRA

requirements of subpart N. In addition,

you could be subject to an enforcement

action requiring compliance, monetary

sanctions, or both under RCRA 3008(a)

enforcement authority for failure to

comply with any of the RCRA

requirement(s) of subpart N for your

waste.

1. Notification

Today’s rule requires you to provide

a one time notice to your RCRA

regulatory agency under § 266.345(a)

prior to the initial shipment of an

exempted waste from your facility to a

LLRWDF to claim the transportation

and disposal conditional exemption.

The notification must include your

facility name, address, telephone

number, and your RCRA ID number.

You need not notify your RCRA

regulatory agency again for subsequent

shipments of the same or a different

waste stream from your facility. The

purpose of this notice is to identify to

the RCRA regulatory agency those of

you who are claiming the conditional

exemption.

Today’s rule also requires you to

notify the LLRWDF receiving your

exempted waste before each shipment of

your waste. Your notification must

provide the information required under

§ 266.345(b) which includes:

• A statement that you have claimed

the exemption for your waste;

• A statement that the waste meets all

applicable LDR treatment standards;

• A statement identifying your

facility name, address, and RCRA ID

number;

• All applicable RCRA waste codes

for the waste before the waste was

exempted;

• A statement that the exempted

waste must be placed in a container for

disposal;

• The manifest number of the

shipment that will contain the

exempted waste; and

• A certification that the information

provided is true, accurate and complete.

We expect that most, although not all,

of the information on this notice to a

LLRWDF will remain the same from

shipment to shipment, especially when

the same waste stream is continuously

being shipped for disposal. Therefore, a

previous notice to the LLRWDF can

easily be updated and used as the new

notice. Alternatively, you also can

choose to develop your own standard

notice to an LLRWDF with unchanging

information already filled in.

The notice in § 266.345(b) serves

several important purposes. First, it will

allow the LLRWDF receiving the

exempted waste to identify the waste

and place it in a container for disposal.

Since the exempted waste would be

managed and identified as any other

radioactive waste after the point of

exemption (See discussion in section

VIII. E.), a mechanism is needed to

allow the identification of the exempted

waste at the LLRWDF. The manifest

number of a shipment that contains

exempted waste will enable such

identification. In the case of the

standard NRC Uniform Low-Level

Radioactive Waste Manifest Form 541,

the manifest number appears in block

number 2.

Second, the notice informs the

LLRWDF that it is receiving a

conditionally exempted waste, and

allows it to take actions that it may

deem appropriate. A LLRWDF’s

willingness to receive the exempted

waste is essential in obtaining the

benefit of this rule. During the proposal

stage of this rulemaking, owners and

operators of LLRWDFs indicated that

they want to know when they would be

receiving an exempted waste. (See Ref.

9, Notes of meeting with LLRWDFs.)

They want to be able to decide, on an

operational basis, whether to take

precautionary actions such as screening

for specific constituents in a shipment

or screening for LDR compliance. The

information regarding the RCRA

hazardous waste codes of the waste

stream before it was exempted will

allow the LLRWDFs to be aware of the

content of the waste and take proactive

steps as they deem appropriate. In

addition, you may only ship the

exempted waste to an LLRWDF after

you have received the return receipt

from the LLRWDF confirming that it has

received your notice. This provision

ensures that the LLRWDF will have

advance notice of the arrival of the

exempted waste so that the LLRWDF

can ensure that the exempted waste is

handled accordingly.

Finally, this notice, in conjunction

with the recordkeeping requirement,

also will provide information to

facilitate inspection and other oversight

activities. You are required to keep

records of this notice, and make these

records available during inspection or

upon request.

The notification requirements in

today’s final rule differ from the

proposed rule in several respects:

• Simplified initial notices to

regulatory agencies when claiming an

exemption;

• Added notification elements in the

notice to LLRWDF to ensure proper

handling of the exempted waste at the

LLRWDF;

• Removed notices to regulatory

agencies of changes in information

submitted in the initial notice;

• Removed notices to regulatory

agencies of failure to satisfy

recordkeeping or notification

requirements; and

• Changed status of the notice to your

RCRA regulatory agency when claiming

the conditional exemption from a

condition of the rule to a RCRA

requirement. (See loss of exemption

discussion in Sec. VIII.F.2.)

We received comments that both

supported and opposed the multiple

notifications to the regulators and the

LLRWDFs. Some commenters stated

that proper notification to the LLRWDF

will allow the LLRWDF to prepare for

receipt of waste and ensure compliance.

27248 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

To address the concern raised

regarding multiple notices, we

evaluated the proposed notification

requirements. We found difficulties and

burdens associated with multiple

notifications and broad notification

requirements. Consequently, we

simplified the notification requirement

by reducing the number of regulators

you must notify and the amount of

information you must provide. In the

final rule, you need only notify the

RCRA regulatory authority. You are no

longer required to provide information

such as the exempted waste volume and

the process that generated the waste.

The re-notification of changes from the

initial notice to the regulator also is not

required. The intention of the proposed

notices to the regulators was to identify

those of you who are claiming the

conditional exemption, and to provide

information on the exempted waste. The

revised notice to your RCRA regulatory

agency in today’s final rule will

continue to serve these purposes while

reducing unnecessary burden. The

notice will identify those of you who are

claiming the conditional exemption. In

addition, even though the notice will

not contain information about the

exempted waste, the regulatory agency

can still obtain information related to

the waste or other aspect of the

exemption from you when necessary

because you are required to keep

records related to the exemption.

We also evaluated the notice to the

LLRWDF. We modified this shipmentby-shipment notification requirement to

ensure that the exempted waste will be

properly managed at the LLRWDF. We

slightly expanded this notice

requirement to include the following

additional information: a statement that

you have claimed the exemption; a

statement that the waste meets the LDR

treatment standards; and a statement

that the exempted waste must be placed

in a container for disposal. This

information can be included in a

standard form letter. Therefore, we do

not expect that the additional

information requested will increase the

reporting burden. This notice to a

LLRWDF will continue to include

identification information including

your facility and the RCRA waste code

of the waste stream. We believe this

notification requirement will provide

the mechanism to ensure proper

handling of the exempted waste at the

LLRWDF.

Notices to your RCRA regulatory

authority and the LLRWDF, in

conjunction with the recordkeeping

requirement, will provide adequate

information to facilitate inspection and

enforcement activities. You are required

to maintain records of the exempted

waste, and must make records available

during an inspection or upon request.

(See Sec. VIII. D. 2. of this preamble.)

The state regulator who licensed the

LLRWDF can obtain information about

the exempted waste from the RCRA

regulatory authority where the LLRWDF

is located or where you are located.

In the proposed rule, we required you

to report to your RCRA regulatory

agency when you fail to satisfy

administrative and paper work

requirements, such as notification or

recordkeeping. Many commenters said

that this provision is unnecessarily

broad and should focus only on

reporting noncompliance that would

endanger human health and the

environment. The commenters believed

that broader reporting requirements

would impose an undue burden on the

regulated community and provide

information of little or no value to the

regulators. We considered this comment

and agree that reporting noncompliance

with administrative requirements (such

as recordkeeping) is unnecessary. We

believe that human health and the

environment will be protected provided

facilities meet the technical conditions

and standards necessary to ensure safe

management of the waste. However, you

are required to make the appropriate

notifications, maintain records, and

ensure that records are accurate and

complete. You also are required to make

these records available either during an

inspection or as requested. If the records

are found to be incomplete or

inaccurate, then you are subject to an

enforcement action requiring

compliance, monetary sanctions, or

both. These penalties can be significant.

Therefore, we believe that there is a

strong incentive for you to satisfy the

RCRA notification and recordkeeping

requirements, and make the necessary

corrections promptly. As a result, we no

longer require you to report

noncompliance with notice and

recordkeeping requirements.

2. Recordkeeping

Today’s rule includes recordkeeping

provisions in § 266.350 as follows:

• Records in § 266.350(a) reference

the existing RCRA recordkeeping

requirements necessary to demonstrate

compliance with the LDR treatment

standards.

• Records in § 266.350(b), (c) and (d)

are necessary to demonstrate

compliance with the RCRA notification

requirement and waste container

condition of the conditional exemption.

• Records in § 266.350(d) are also

necessary to document that exempted

waste was disposed of at the designated

disposal facility. It enables regulators to

track and identify the shipment of lowlevel radioactive waste that contained

exempted waste.

• Records in § 266.350(e) are

necessary to document and demonstrate

compliance with the manifest and

transportation condition for the

facilities who are not directly subject to

NRC or NRC Agreement State manifest

and transportation regulations.

These records will provide the

regulatory agency with information

during inspections to determine

whether you are complying with all of

the conditions and RCRA requirements

of the rule. It is important that you

maintain a complete and accurate set of

the required records, and that you make

them available when requested. The

recordkeeping provision is now a RCRA

requirement instead of a condition for

the exemption. Your waste will not

automatically lose the exemption if you

fail to meet the recordkeeping

requirements. However, you could be

subject to an enforcement action

requiring compliance, monetary

sanctions, or both.

We received comments both

supporting and questioning the

proposed duration of the recordkeeping

requirements. Specifically, some

commenters voiced concern over

requiring a generator or treater to retain

records for the radioactive waste

manifest and the notice to LLRWDF

until closure of the LLRWDF or closure

of the generator’s or treater’s facility.

These commenters stated that such

requirements are overly burdensome

and inconsistent with existing

regulations, and indicated that the

proposed recordkeeping timeframes

could result in record retention for

decades after a waste was shipped. They

pointed out that both NRC (10 CFR part

30) and EPA (40 CFR part 262)

regulations require a generator or treater

to retain records for only three years. In

addition, they stated that 10 CFR 61

already requires a LLRWDF to maintain

records of the LLW manifest until

termination of the LLRWDF license

activities.

We reexamine the proposed

recordkeeping duration requirement and

agreed with the commenters that it is

not necessary for a generator or treater

to maintain records beyond three years

after the waste is sent for disposal.

Therefore, the final rule requires the

records be retained for three years. In

the case of maintaining LLW records

such as the LLW manifest, this time

period is consistent with NRC

regulations under 10 CFR part 20, or

equivalent NRC Agreement State

regulations which generally is also three

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27249

years for generators and treaters. For

disposal facilities, the NRC manifest

records are maintained by the facility

until closure of the LLRWDF or closure

of the generator’s or treater’s facility.

Although not required by today’s rule,

we recommend and encourage

LLRWDF’s to similarly maintain their

copy of the exempt-waste notices until

facility closure since these records

could be useful in the future for

identifying the exempted waste that was

disposed at the facility.

Today’s recordkeeping requirement

changed from the proposed rule as

noted below.

• In the proposal we had required

you to keep NRC manifest records until

closure of the disposal facility or closure

of your facility. In the final rule you

only need to keep records of the NRC

manifest for the time period required by

NRC.

• In the proposal we had required

you to keep your notices to LLRWDFs

until closure of the disposal facility or

closure of your facility. The final rule

only requires you to keep the records for

three years after the exempted waste is

sent for disposal.

• The recordkeeping requirement is a

RCRA requirement under the authority

of sections 2002 and 3007 of RCRA

instead of a condition of the rule. (See

loss of exemption discussion in Sec.

VIII.F.2.)

• You are not required to report

noncompliance related to recordkeeping

requirements. (See Sec. VIII.D.1.

notification discussion.)

• The recordkeeping requirements

associated with the re-notification to

regulator of changes have been removed

because this notice no longer exists.

(See notification discussion in Sec.

VIII.D.1.)

E. When Does the Transportation and

Disposal Exemption Take Effect?

Today’s rule conditionally exempts

eligible waste from RCRA Subtitle C

manifest, transportation, and disposal

requirements because we found that

RCRA Subtitle C regulation is not

necessary if waste meeting LDR

treatment standards and containerized

prior to disposal is managed according

to NRC manifest, transportation, and

disposal requirements for the

management of the radioactive

component of the waste (See our

technical evaluation, Ref. 7, and our

comparison of NRC and EPA waste

tracking, Ref. 12.) The Agency has

chosen to exempt the waste from the

RCRA regulatory definition of

hazardous waste at the point where your

waste meets LDR treatment standards;

you have completed NRC or NRC

Agreement State equivalent packaging,

preparation for shipment, and manifest

requirements; and you have placed the

waste on a transportation vehicle

destined for an LLRWDF licensed by

NRC or an Agreement State. Once the

exempted waste has been placed on a

transportation vehicle for disposal, the

waste may not be taken to other

facilities for further management

purposes. Stops during transportation to

pick up additional wastes, or to transfer

wastes (including radioactive waste

transporters using their transfer

facilities to consolidate radioactive

waste shipments) are not considered

‘‘further management.’’

Thus when:

• Your eligible waste meets LDR

treatment standards;

• You have received return receipts

confirming that you have notified your

RCRA regulatory agency and the

receiving LLRWDF;

• You have completed the Packaging

and Preparation for Shipment

requirements for the eligible waste

according to NRC Packaging and

Transportation regulations found under

10 CFR part 71 (or NRC Agreement State

equivalent regulations);

• You have manifested the treated

waste according to NRC manifest

regulations found under 10 CFR 20.2006

(or NRC Agreement State equivalent

regulations); and

• You have placed the waste on a

transportation vehicle destined for the

receiving LLRWDF,

then the exempted waste may be

transported as a LLW or NARM. Once

properly containerized at the disposal

facility, the exempted waste may also be

disposed of as LLW or NARM.

We received comments describing

complications if the point of exemption

occurs when the waste has been placed

on a truck destined for a disposal

facility. The commenter indicated that

facilities often use centralized waste

staging areas to package, label, inspect,

and manifest wastes in preparation for

transportation. According to the

commenter, placing the point of

exemption after the waste is placed on

the transportation vehicle would require

meeting both RCRA hazardous waste

and NRC radioactive waste packaging

and labeling regulations instead of

meeting just the NRC radioactive waste

packaging and labeling regulations.

However, this was not our intention

because we found that the NRC or

Agreement State packaging, preparation

for shipment, and manifest

requirements are adequate for the

shipping and tracking of the treated

waste. Therefore, we are clarifying that

it is not necessary to package, label, and

manifest the waste as RCRA hazardous

waste when preparing the waste for

transportation to disposal. The

exemption will start at the moment

waste is placed on the transportation

vehicle if you claim and qualify for this

conditional exemption.

Another commenter expressed

concern over the proposed requirement

that exempted waste not go to any other

facility en route to the designated

LLRWDF, other than to a transfer

facility. The commenter stated that this

requirement would not allow a

transporter to pick up waste from more

than one facility and would

unnecessarily increase the shipping cost

and waste shipping traffic. We agree

with the commenter and are changing

the final rule language to clarify that

such stops are acceptable.

F. Implementation

1. How Will the Transportation and

Disposal Conditional Exemption Be

Implemented?

The transportation and disposal

conditional exemption we are

promulgating today will require no prior

governmental approval or review of

documentation before your waste exits

RCRA Subtitle C regulations. This basic

framework is consistent with other

hazardous waste exemptions. It also is

consistent with the LDR program. The

LDR program allows a generator or

treater to certify that their hazardous

waste meets LDR treatment standards

and qualifies for land disposal without

prior governmental approval.

We are allowing this approach

because we believe that there is no

significant benefit to requiring approval

for an exemption. Furthermore, the

waste exiting RCRA Subtitle C

requirements will continue to be

managed under an alternate regulatory

program (NRC or NRC Agreement State

regulations) that provides appropriate

protection for human health and the

environment. This also is true for those

of you who self-regulates under the

AEA, because your waste also must be

disposed of at an LLRWDF regulated by

NRC or NRC Agreement State.

Therefore, we conclude that under the

proposed method, the waste will

continue to be properly managed while

the regulatory burden is reduced. In

addition, such implementation has the

following advantages:

• The exemption can take effect more

quickly;

• It reduces your burden associated

with acquiring the approval; and

27250 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

• It does not impose a burden on the

regulatory agency to review and approve

the exemption.

However, this approach does not

mean that the appropriate regulatory

authority does not have a role in

overseeing the conditional exemption.

You must keep records of the exemption

and make them available to the

appropriate regulatory authority during

inspection or upon request. The

appropriate regulatory authority may

conduct inspections, audit records,

obtain samples, and perform any other

information gathering activities

authorized under RCRA, including

under 3007, 42 U.S.C. 6927, to

determine whether you are in

compliance with all of the provisions of

this exemption. Nothing in subpart N

shall be interpreted or applied to restrict

any inspection or enforcement authority

under RCRA, 42 U.S.C. 6901, et seq.

RCRA 3008(a) gives the appropriate

regulatory agency the authority to take

enforcement actions when you fail to

meet any of the provisions of the

conditional exemption. The appropriate

regulatory authority can take a direct

enforcement action against you when

you fail to meet a specific RCRA

requirement for your waste under this

conditional exemption such as the

notification or recordkeeping

requirement. When you lose your

exemption for your waste due to failure

to meet a condition of the exemption,

your waste is no longer exempted and

it becomes a RCRA hazardous waste.

The appropriate regulatory authority

can take enforcement action against you

for managing a hazardous waste without

complying with RCRA hazardous waste

requirements. However, note that a loss

of exemption can be reclaimed (see

discussion in the following section).

Depending on the situation that led to

the loss of exemption, an exemption

could be quickly reclaimed in order to

avoid any significant consequences.

Today’s rule also does not change the

ability of citizens to inform regulators of

any circumstance that might aid in

monitoring and enforcement efforts. A

concerned citizen also may file a suit

under RCRA 7002 against you for failure

to meet any of the provisions of the

conditional exemption. Lastly, the

appropriate regulatory agency can take

actions using authority under 7003 and

3013 of RCRA, 42 U.S.C. 6973, when it

determines that there may be an

imminent and substantial endangerment

to human health or the environment.

2. Loss of Transportation and Disposal

Conditional Exemption

Under today’s final rule, any waste

will automatically lose its transportation

and disposal conditional exemption if

you do not manage it in accordance

with all of the conditions specified in

§ 266.315. Depending on which

condition or conditions you failed to

meet and the circumstances

surrounding the failure, the affected

waste could be a single drum, a number

of drums, a treated waste stream

containing specific waste codes, or a

number of treated waste streams with

specific waste codes. The exemption is

lost at the time of noncompliance. The

appropriate regulatory authority need

not take action to remove the

exemption. The conditions of the

exemption are the technical conditions

and standards that we have determined

to be necessary to achieve proper

management of the waste and ensure

protection of human health and the

environment. Therefore, we believe it is

appropriate that a waste automatically

lose its exemption if you do not manage

it in accordance with these technical

conditions and standards.

You must report to your RCRA

regulatory agency when any of your

waste loses its exemption. Your report

must be in writing, by certified delivery,

within 30 days of learning of the failure.

In your report you must describe at a

minimum: any specific condition(s) that

you failed to meet for your waste,

information (e.g. name, waste code, and

quantity) regarding the waste stream

that lost the exemption, and the date(s)

on which the condition(s) were not met.

The report will allow the appropriate

regulatory agency to be aware of any

noncompliance and to take appropriate

actions, if necessary. The appropriate

regulatory authority may request

additional information from you to

facilitate the investigation. If the failure

to meet any of the conditions may

endanger human health or the

environment, then you also must report

such failure to your RCRA regulatory

agency orally within 24 hours of

learning of the failure. A written notice

must follow your oral notification

within 5 days.

You also may lose the transportation

and disposal conditional exemption for

your waste for serious or repeated

noncompliance with any of the RCRA

requirement(s) (e.g. notification or

recordkeeping) of Subpart N. In this

situation, the appropriate regulatory

authority may terminate your ability to

claim the conditional exemption for

your waste. The appropriate regulatory

authority also may require you to meet

additional conditions in order to claim

a conditional exemption. This provision

gives the appropriate regulatory

authority the ability to revoke a

conditional exemption from you if you

have serious and repeated compliance

problems related to the notification or

reporting requirements.

When you lose the exemption for your

waste, you may also be subject to an

enforcement action requiring

compliance, monetary sanctions, or both

for any violation of RCRA Subtitle C

regulations.

Today’s loss of exemption provision

changed from the proposed rule in

several respects:

• In the final rule, notice to regulator

and recordkeeping are RCRA

requirements instead of conditions of

the exemption. Noncompliance with

these RCRA requirements will not result

in automatic loss of exemption;

• You can lose your ability to claim

a conditional exemption for serious or

repeated noncompliance with any of the

RCRA requirements (e.g. notice to

regulator or recordkeeping) of Subpart

N;

• We have specified minimum

reporting requirements for reporting a

failure to meet a condition; and

• We have added one reporting

requirement stating that when a waste

loses its exemption, if the failure to

meet any of the conditions may

endanger human health or the

environment, you must orally notify

EPA or the Director within 24 hours of

discovery of failure and follow up with

a written notice within 5 days.

We received comments that both

supported and opposed the proposed

loss of exemption provision. The

commenters who supported the

provision believed that an automatic

loss of exemption was a strong incentive

for ensuring that waste would be

properly managed. However, the

majority of comments expressed

concern over losing the exemption due

to relatively minor administrative

violations such as incorrect spelling of

a facility name.

Upon further evaluation, we believe

that the commenters raised a valid

issue. We recognize the undue

difficulties and burdens associated with

the automatic loss of exemption due to

failure to comply with administrative

requirements alone. In the proposed

rule, the exemption conditions included

both technical conditions and standards

necessary to ensure safe management of

the waste, and administrative type of

requirements such as notification and

recordkeeping. As proposed, when an

exemption is lost due to failure to meet

the administrative requirement alone,

you would have to manage the waste as

RCRA hazardous waste while correcting

the infraction and then reclaim the

exemption. However, the technical

conditions and standards of the

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27251

conditional exemption necessary to

ensure safe waste management would

continue to be met. We believe that it

is appropriate to impose the automatic

loss of exemption when technical

conditions and standards for safe

management of the waste are not met

and could by itself directly lead to

impact to human health and the

environment. However, we do not

believe that automatic loss of exemption

is warranted for errors related to

administrative requirements, such as

recordkeeping, which by themselves are

unlikely to lead to environmental harm.

We evaluated the proposed conditions

and made modifications so that the

administrative requirements, such as

recordkeeping, are RCRA requirements

instead of conditions of the exemption.

The conditions as specified under 40

CFR 266.315 of today’s rule are the

technical conditions and standards

necessary to maintain the exemption.

We believe this is more consistent with

the overall approach of today’s rule,

which is that eligible waste is not

‘‘hazardous’’ for Subtitle C purposes if

properly managed. Although it is

important that EPA be able to enforce

paperwork violations, we do not think

these violations alone support the

conclusion that the waste becomes

hazardous for Subtitle C purposes. As a

result, the automatic loss of exemption

will only apply to noncompliance with

technical conditions and standards, and

not to failure to meet the RCRA

requirements of this rule such as

recordkeeping.

Nevertheless, the notification and

recordkeeping requirements serve an

important function in the

implementation of the conditional

exemption. These RCRA requirements

also play an important role in

compliance determination. Therefore,

we want to maintain a mechanism that

will provide the appropriate regulatory

authority with the ability to revoke the

exemption for failure to comply with

these RCRA requirements where

necessary. In the final rule, the

appropriate regulatory authority may

terminate your ability to claim a

transportation and disposal conditional

exemption for your waste for serious

and repeated noncompliance with the

RCRA requirements of Subpart N. We

do not expect this provision to be used

casually. We view it as a means to

ensure that you take the reporting and

recordkeeping requirements seriously

and that you comply with these RCRA

requirements at all times. Revocation of

the transportation and disposal

conditional exemption would be

effective after the Director takes this

action and would only affect subsequent

waste shipments.

We also received comments regarding

the requirement to report

noncompliance with the conditions and

RCRA requirements of the rule. Two

commenters urged us to consider

requiring the facility to orally report a

condition that endangers human health

and the environment within 24 hours.

We agree with the commenter and note

that it is a standard RCRA requirement

that an oral report, followed up with a

written notice within five days, be made

for situations that threaten human

health and the environment. Therefore,

we have modified the final rule to

incorporate this provision.

3. Reclaiming the Transportation and

Disposal Conditional Exemption

Under the final rule, any waste will

automatically lose its exemption if it is

not managed in accordance with the

conditions under § 266.315. However,

you may reclaim the exemption for your

waste if it is again managed in

accordance with all of the conditions

under § 266.315. You may initiate the

reclaim process for your waste only after

you have received the return receipt

from your RCRA regulatory agency

confirming that it has received your loss

of exemption notice that you have lost

the exemption for your waste. When

reclaiming a lost exemption, you must

notify your RCRA regulatory agency that

you are reclaiming the conditional

exemption for your waste. In this

reclaim notice, you must do the

following:

• Explain the circumstance of each

failure to meet a condition;

• Certify that each failure that caused

the waste to lose the exemption has

been corrected and that the waste again

meets all of the conditions as of the date

you specified; and

• Demonstrate that each failure is not

likely to recur, listing the specific steps

that you have implemented to ensure

the conditions will be met.

You also may provide any other

information that you want your RCRA

regulatory agency to consider when it

reviews your notice reclaiming the

exemption.

We are requiring a notice to reclaim

an exemption because the conditions of

the exemption represent those technical

conditions and standards which will

ensure safe management of the waste.

Therefore, we believe that it is

important that you notify your RCRA

regulatory agency of events that led to

the loss of the exemption so that it can

take steps, if necessary, to ensure that

waste will be managed properly. The

appropriate regulatory authority can

review your records, collect additional

information, or conduct site visits. This

communication and information will

allow your RCRA regulatory agency to

work with you to correct the problems

that led to the non-compliance with the

conditions. The appropriate regulatory

authority may add additional

conditions, where appropriate, to the

exemption to ensure proper

management of the waste to protect

human health and the environment.

The reclaimed transportation and

disposal exemption becomes effective

when you have received the return

receipt confirming that your RCRA

regulatory agency has received your

reclaim notice. The return receipt can be

a certified U.S. Postal receipt or a

certified receipt from a mail delivery

service. Additionally, as proposed, the

appropriate regulatory authority may

terminate a reclaimed conditional

exemption if it finds that the claim is

inappropriate.

Today’s transportation and disposal

exemption reclaim requirement is

changed from the proposed rule in one

area. We added a new requirement that

you may initiate the reclaim process for

your waste only after you have received

the return receipt confirming that your

RCRA regulatory agency has received

your notice that you have lost the

exemption for your waste. This

provision is not required under the

storage and treatment exemption. This

slight variation is designed to ensure

that a waste, for which the lost

exemption is being reclaimed, will not

be transported to a LLRWDF before your

RCRA regulatory authority is made

aware that you have lost the exemption

for your waste.

We received comments on the issue of

whether a transportation and disposal

exemption could be reclaimed after it

has been lost. Some commenters

supported the proposed rule that

allowed the exemption to be reclaimed.

Some commenters noted that requiring

notification to reclaim is burdensome

and unnecessary. One commenter urged

the Agency to disallow the reclaiming of

an exemption.

In general, we believe that you should

be allowed to reclaim a lost exemption.

We believe that even a responsible

generator or other waste handler may,

on rare occasion, be in noncompliance

with the conditions of the exemption.

Because the consequence of the loss of

the exemption for a waste is potentially

the full imposition of the RCRA Subtitle

C regulation, we believe a permanent

loss of exemption would unduly

penalize responsible generators and

other waste handlers and downstream

handlers. However, we want to

27252 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

emphasize that failure to meet the

conditions can result in RCRA

enforcement actions, fines, penalties,

and the permanent loss of exemption.

Thus, the mechanism to discourage

violation of the conditions is in place.

Therefore, we are allowing you the

opportunity to reclaim the exemption

for its waste when the infraction has

been corrected and is not likely to recur.

We note that other RCRA rules

provide a similar provision for

reclaiming a lost exemption. We

established a conditional exemption

from the RCRA transportation and

storage requirements for persons that

transport or store nonchemical waste

military munitions in accordance with

40 CFR 266.203 or 266.205,

respectively. Under that conditional

exemption, we established procedures

for persons to reclaim a lost

transportation or storage exemption (see

§ 266.203[b] and § 266.205[c]). The final

rule is consistent with the provisions of

§ 266.203 and § 266.205.

In addition, as stipulated in

§ 266.360(b), the appropriate regulatory

authority may terminate a reclaimed

exemption if warranted. This provision

allows the appropriate regulatory

authority to deal with repeat or serious

offenders. Therefore, we believe that the

final rule is adequately flexible to

enable the appropriate regulatory

authority to react to violations in a

manner that is commensurate with the

severity of the violation. The final rule

not only ensures protection of the

environment, but also motivates

facilities to meet the exemption

conditions.

In the proposed rule, we solicited

comments as to whether we should

impose a waiting period before the

exemption could be reclaimed. We

asked whether we should provide a 90-

day waiting period before the reclaimed

exemption is effective. We solicited

input on whether a waiting period is

necessary to allow time for the

appropriate regulatory authority to

review the reclaim notification, and to

deal with repeat or serious offenders.

The majority of the commenters

believed that a 90-day waiting period

was unnecessary. They believed that

you should be able to reclaim the

conditional exemption for your waste as

soon as the noncompliance with the

conditions is corrected with reasonable

assurance that the noncompliance

would not recur. Several commenters

noted that further delay in reclaiming

the exemption would serve no purpose

and could potentially result in uncertain

regulatory status and/or unreasonable

enforcement action. Other commenters

stated that the appropriate regulatory

authority could conduct an inspection

at any time and take actions if

necessary. Some states believed that

there should not be a binding time

period for the review. Lastly, one

commenter stated that without a waiting

period, you would be motivated to

correct the noncompliance that resulted

in the loss of conditional exemption as

quickly as possible in order to minimize

penalties and return to exempt

operations. However, several

commenters indicated their support for

a 90-day waiting period before allowing

licensees to reclaim a lost transportation

and disposal exemption so that there

would be time to review documentation,

conduct an inspection, and/or hold a

public hearing before reinstating the

exemption.

After considering the comments, we

do not believe that it is necessary to

require a waiting period before the

exemption is reinstated if the violation

has been corrected. This approach is

generally consistent with the current

RCRA regulatory program. For example,

under the LDR program, hazardous

waste generators or treaters can send the

waste for disposal after self-certifying

that the waste has met the LDR

treatment standard without a waiting

period.

Today’s rule also provides the

appropriate regulatory authority with

flexibility regarding the amount of time

it has to review a request to reclaim an

exemption. It can, at any time, review

the notification, request additional

information, or conduct a site

inspection to verify the validity of the

reclaim or the purported successfulness

of measures designed to prevent the

recurrence of a failure. By not specifying

a time period for review, we are

providing regulators flexibility and the

ability to evaluate any reclaim notice at

any time and to focus their attention

and limited resources as they deem

most appropriate. This mechanism also

avoids the implication that a reclaim is

approved if the appropriate regulatory

authority was not able to review the

reclaim and respond before the end of

the waiting period. We note that the

appropriate regulatory authority will

continue to maintain a broad range of

inspection, and information collection

authorities to ensure compliance with

the exemption conditions under RCRA

3007, 42 U.S.C. 6927. Thus, the

appropriate regulatory authority has the

ability to conduct an inspection at any

time, and can take enforcement actions,

and assess fines and penalties if you are

found to be in noncompliance with the

reclaim requirements.

We believe that these requirements

are sufficient for the appropriate

regulatory authority to track compliance

and conduct enforcement activities.

Most importantly, today’s rule provides

the appropriate regulatory authority

with adequate means to discover,

evaluate, and, if necessary, terminate an

exemption (for example, determine that

the claim is inappropriate because the

claimant failed to correct the problem).

The appropriate regulatory authority

can terminate the reclaimed exemption

at any time for violations and does not

need a waiting period to do so.

Therefore, the final rule does not require

a waiting period before you can reclaim

an exemption for your waste. However,

we want to ensure that the appropriate

regulatory authority is aware that you

have lost the conditional exemption for

your waste before you reclaim the

exemption. Therefore, you may not

reclaim the exemption for your waste

until after you have received a return

receipt confirming that the Director has

received your notification of loss of

exemption. This requirement will allow

the appropriate regulatory authority to

initiate action, if necessary, while

minimizing your burden.

G. How Did We Conduct Our Technical

Assessment for the Disposal of Treated

Waste at Low-Level Radioactive Waste

Disposal Facilities?

We conducted a technical assessment

to evaluate the protectiveness afforded

by a combination of the conditions of

the exemption and NRC criteria for the

LLRWDF. We considered a number of

factors in the analysis:

• LDR treatment and waste container

conditions;

• NRC waste form requirement;

• NRC/EPA disposal site properties

comparison;

• Disposal unit engineering design

and performance;

• NRC groundwater monitoring;

• Other NRC/EPA regulatory

comparisons.

We made our technical determination

on the comparability between the NRC

and EPA disposal systems based on the

consideration of all of the above factors.

This determination is not based solely

on any one factor, but on the aggregation

of all the factors considered.

In our technical assessment, we

considered these factors and the

potential for release of chemical

constituents from LLMW disposed of in

LLRWDFs, and concluded that the

threat of such a release would not be

significant. Several significant factors

that helped support this conclusion are

briefly summarized below. More detail

on these factors, and a discussion of

other factors that we considered, is

provided in the proposed rule preamble

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27253

and the technical background

document. (See Technical Evaluation,

Ref. 7.)

We assessed the likelihood of a

chemical release from the disposal of

waste in a LLRWDF under the

conditions of this rulemaking. The

intent of RCRA LDR treatment standards

is to significantly reduce the toxicity

and mobility of chemical constituents.

We performed a screening risk analysis

to assess the potential for leachate

releases of these constituents from

wastes treated to LDR levels. We

concluded that the potential threat to

drinking water would be insignificant.

In addition, prior to disposal the treated

waste must be containerized. Therefore,

we concluded, based on the treatment to

LDR for both RCRA and as a condition

of this rule, and container conditions

along with the LLRWDF cap design

performance comparable to RCRA

Subtitle C performance, the potential

threat to drinking water would be very

low, if any.

We also assessed the protection

afforded by NRC waste form criteria.

NRC waste form criteria for low level

waste stipulates that the waste be

stabilized to ensure the structural

integrity of the waste for the duration

when the radioactive waste is

undergoing decay. The requirement for

waste form is to minimize the potential

for waste/liquid contact and subsequent

leachate production. Depending on the

radioactivity of the waste, the structural

integrity of the waste is required to last

up to 500 years. The waste must pass a

series of American Society of Testing

Methods (ASTM) tests to demonstrate

its compliance with the waste form

criteria. These tests provide indication

of waste form performance in the area

of, among other things, structural

integrity and resistance to corrosion.

We evaluated NRC’s LLRWDF siting

requirements and compared them to

RCRA hazardous waste disposal facility

siting requirements. We found that the

siting requirements are very similar,

with NRC siting requirements being

more stringent in certain respects. The

NRC siting requirement for LLRWDFs

are designed to enhance the

protectiveness of the disposal unit and

minimize releases to the environment.

These regulations ban location of

disposal facilities in environmentally

sensitive locations such as, 100-year

flood plains, wetlands, and coastal high

hazard areas. These requirements also

mandate restrictions for ground water to

surface water connectivity on-site.

We assessed NRC LLRWDF

engineering design and performance

requirements and concluded they will

effectively minimize water infiltration

and waste migration from the disposal

cell. The LLRWDFs must be designed to

limit human exposure to a specified

level of radioactivity and intrusion by

humans and animals. NRC LLRWDF

disposal regulations require that the

engineered landfill design system

integrate both the site properties

(climate, soil geology) along with the

performance of the cover system.

LLRWDFs must be designed to provide

assurance that concentrations of

radioactive material that may be

released to ground water, surface water,

air, soil, plants, or animals not result in

exposures to humans above specified

health-based levels. NRC and EPA

disposal regulations require a final

cover with low permeability to

minimize infiltration of precipitation

and contact of waste with infiltrated

water. NRC LLRWDF disposal

regulations also require a landfill design

that promotes short liquid/waste

residence time which would minimize

the potential leachate generation at

LLRWDFs.

NRC’s ground water monitoring

regulations require that groundwater be

monitored to allow for early detection

and mitigation of radiological

contamination. In practice, the NRC

Agreement States have also included

requirements in the LLRWDFs license to

monitor for selected chemical

constituents.

We also estimated the annual amount

of mixed waste that is expected to be

disposed of at LLRWDFs under this

conditional exemption. Commercial

sources of mixed waste would

constitute less than 0.5% of the annual

total waste volume at these sites. This

amount of disposal volume is expected

to contribute very limited volumes of

hazardous waste.

In addition to the major technical

factors outlined above, we also analyzed

other aspects of the NRC regulatory and

licensing program for LLRWDFs. This

analysis is described in detail in the

technical background document. (See

Technical Evaluation, Ref. 7.) Some of

the key findings include:

• The NRC licensing process provides

for public participation and scrutiny of

potential disposal facilities, which plays

an important role in not only the siting

of a facility but also in prescribing

conditions governing its final operation.

• NRC prohibits disposal of waste

with free liquids greater than 1% by

volume, waste contaminated with

reactive, explosive, volatile, and

corrosive materials, and LLW that is

incompatible with containers used for

disposal of LLW.

• NRC regulations require active care

disposal facility surveillance for up to

100 years under governmental control

and government ownership.

• NRC’s LLRWDF disposal

regulations require corrective measures

for the disposal of radioactive waste to

assure that corrective measures are

taken if a radiation hazard becomes a

groundwater concern.

We received 15 comments pertaining

to our overall technical analysis and

conclusions. The eleven comments

supporting the technical approach came

from industry associations, generators,

academia, and some government

agencies. They felt that the approach

was thorough and presented compelling

analysis supporting the conditional

exemption. They agreed that the

combination of LDR treatment in

conjunction with the stringent controls

already in place at the LLRWDFs were

protective of human health and the

environment. Some commenters argued

that dual regulation is not appropriate

and only seems to hinder the timely

disposal of waste. Based on our analysis

that disposal of LLMW would be

properly managed in a LLRWDF,

without degradation to human health

and the environment, the redundant

regulation by RCRA adding additional

cost and time to permit the facility does

not seem prudent.

In contrast, we also received four

negative reactions to the technical

approach from environmental groups

and some State agencies. Some of the

comments related to the uncertainties

inherent in the analysis. Another

commenter believed that we need to

address all contingencies and technical

aspects before making our final

decision. Although there are always

uncertainties associated with complex

environmental analysis, we are

confident of the conclusions of our

technical analysis that indicate the

RCRA exemption conditions coupled

with the NRC performance requirements

will be protective of human health and

the environment. Our comfort derives

from having designed a waste

management scheme with multiple

redundant systems and conditions that

will limit contaminant movement.

These include waste treatment, waster

form, containers, cover performance,

monitoring, and site-specific public

participation. We believe that we have

addressed all major technical aspects

and waste management contingencies in

making our decision on the

comparability of the two regulatory

programs.

Our responses to major comments on

specific technical issues are presented

in the following sections.

27254 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

1. Synergistic Effects

Commenters indicated that the

radioactive portion of the waste could

negatively influence the nature and

mobility of the hazardous portion of the

waste and similarly the hazardous

portion could possibly enhance the

mobility of the radioactive constituents.

Commenters also raised concerns

regarding potential toxicological

interaction between the hazardous and

radioactive fractions in mixed waste.

Interaction between radioactive and

hazardous waste components that

enhance the mobility or toxicity of

constituents is referred to as ‘‘synergy.’’

The agency acknowledges that

interaction between the waste

components may be possible. There is

not an adequate scientific

understanding of such processes (e.g.,

synergy and cumulative interactions)

that would allow EPA to design

additional, and appropriate,

management standards, if needed. In

addition, the current regulatory schemes

do not explicitly account for such

effects. Our redundant control systems

would make the possibility of such

effects remote and go beyond current

management practices. From a practical

perspective, we concluded that the

synergistic effects between radioactive

and hazardous constituents would be

minimal due to treatment requirements

minimizing the hazardous constituents,

waste form requirements, container

conditions of the waste minimizing

radioactive and hazardous interaction,

and cover requirements resulting in the

lack of liquid to generate leachate.

Indeed, the container condition will

enhance protectiveness over the current

scheme, under which LLMW could

interact more readily in a landfill with

other radioactive or hazardous wastes.

2. Groundwater Monitoring

Today’s final rule does not require

LLRWDFs that accept LLMW under the

provisions of today’s transportation and

disposal exemption to conduct

groundwater monitoring for chemical

constituents. These facilities already are

required to conduct groundwater

monitoring for radioactive material and

other indicators which include selected

hazardous constituents. We believe that

this monitoring will provide adequate

warning if there is a breach of the

containment systems at the disposal

facility.

A significant number of commenters

agreed with the Agency’s approach to

not require groundwater monitoring for

the RCRA constituents as one of the

conditions of the disposal exemption

because they believed the current NRC

and Agreement provisions adequately

address the monitoring needs for

disposal sites. One commenter pointed

out that the Agreement States have the

authority to require groundwater

monitoring for non-radiological

constituents in the license for hazardous

constituents under NRC regulations.

This commenter noted that additional

monitoring (if needed) can be best

established as part of the site license

condition with the Agreement State and

be tailored to the local environmental

conditions and the nature of the waste

being accepted for disposal. EPA’s

analysis supports this contention. All

three existing LLRWDFs licensed by the

Agreement States have groundwater

monitoring for RCRA hazardous

constituents in their licenses. We

believe this data will supplement the

groundwater monitoring data of the

radioactive constituents in providing

the necessary warning sign when there

may be a breach of containment at the

disposal facility. Further, we found no

evidence to suggest that these facilities

have ground water contamination above

regulatory levels for hazardous

constituents as a result of disposal unit

design problems or management.

In the proposed rule we specifically

asked if commenters knew of reasons

why we should include groundwater

monitoring requirements for RCRA

hazardous constituents as part of the

conditional exemption. Some

commenters believed that we had not

adequately supported our assumption

that controlling radionuclides will also

adequately control hazardous

constituents, because hazardous

constituents may be more mobile than

radionuclides. One commenter added

that monitoring requirements should be

based on the contents of the disposal

cells; that is, if there are hazardous

constituents in the disposal cell, they

should be included on the list of

analytes to be monitored.

The concerns expressed by these

comments are addressed first and

foremost by the preconditions

established in today’s rule for the

exempted wastes. Specifically, the

LLMW will be treated. Organics will be

destroyed and metals will be

immobilized through meeting the LDR

standards. There will be no free liquid.

The waste will then be containerized, at

a minimum in carbon steel drums, prior

to being placed in the disposal

environment. Stable Class-A waste that

is mixed with more active Class-B or C

waste will meet the NRC requirement of

high integrity containers (HICs) (e.g.,

concrete casks). This system of controls

should preclude both transport alluded

to by the commenter (e.g., organic

solvents either moving faster than other

constituents or promoting transport of

inorganic constituents) and

uncontrolled leaching of inorganic

constituents (e.g., the inorganic

constituents will be immobilized and

unavailable for leaching, if not already

destroyed by thermal treatment, and

will be contained).

Although we believe the likelihood of

hazardous constituent releases is

minimal for the reasons presented

above, we still believe that ground water

monitoring is a prudent safeguard. The

NRC/Agreement States already require

LLRWDFs to conduct groundwater

monitoring for radionuclides and other

indicators (including selected hazardous

constituents) using traditional analytical

methods. The NRC/Agreement States

ensure that the monitoring protocols

established by the LLRWDFs are based

on the wastes and constituents disposed

of in the facility. Therefore, the list of

analytes will include indicator

constituents that are representative of

the materials in the facility. In general,

the migration of metals, whether as

hazardous constituents or radioactive,

will migrate in a similar way. We note

that the detection of an indicator

radioisotope (e.g., Cr-51, Cu-64, Pb-201,

Se-75, Tl-201, or Zn-63) would also

serve as an indicator of migration of the

chemical portion of the waste. For

example, if mixed waste contains

hazardous chromium and radioactive

CR–51 and groundwater monitoring

detects CR–51, it would be reasonable to

expect that hazardous chromium is also

present in groundwater. As noted above,

the three operating LLRWDFs monitor

for RCRA constituents, including metals

and some of the more mobile organic

constituents (e.g., benzene, xylene). In

conclusion, we are satisfied that the

NRC ground water monitoring program

will provide adequate protections for

the exempted wastes managed under

today’s rule.

3. Site-Specific Variance

The Agency solicited comment on the

use of a ‘‘site-specific, risk-based

variance’’ approach to determine the

waste disposal eligibility. We proposed

this alternative to the conditional

exemption based on States’ interest to

factor in site properties into the risk

determination. In addition to the sitespecific approach, the Agency also

solicited comment on the need for

guidance in support of performing sitespecific risk assessments. Today’s final

rule regarding the ‘‘conditional

exemption’’ for disposal does not

include the site-specific, risk-based

variance approach as an alternative

method for exemption. The

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27255

requirements identified in the final rule

and the existing NRC and Agreement

State regulations, guidance, and licences

were deemed to be adequate and

protective for the management of these

wastes.

We received more than forty

comments on the use of site-specific,

risk-based variances for the

determination of waste disposal

acceptability. The comments

represented a wide disparity of

positions. Many comments from States

supported the use of the site-specific

risk-based alternative to the conditional

exemption. The commenters expressed

the concern that efforts outside of sitespecific modeling would not properly

reflect the conditions at a specific site,

either by overestimating or

underestimating disposal performance.

The commenters argued that using a

national approach would tend to

average site conditions and not truly

represent any specific site resulting in

uncertainty around the conclusion

regarding the qualifications of natural

and engineered site conditions.

A set of industry comments did not

support the use of site-specific, riskbased analysis, in lieu of the conditional

exemption. Their position was that the

conditional exemption was technically

sound and was instantly available,

whereas the site-specific alternative

would take time to perform and delay

decisionmaking.

One environmental commenter

opposed the use of site-specific, riskbased analysis completely on the

grounds that the state of the science was

not appropriate and too much

uncertainty surrounded this type of

analysis.

We have decided not to include the

site-specific, risk-based alternative in

the final rule. We concluded that the

disposal of LLMW in LLRWDFs would

be protective and be properly managed

based on the benefits derived from

siting, LDR treatment and waste form

requirements, and the protection

afforded by LLRWDFs licensed pursuant

to 10 CFR part 61. Our review of NRC

regulations, guidance, and licenses

indicated that disposal facilities provide

adequate protection for the disposal of

LLMW so long as the additional

conditions and requirements of this rule

are met. In summary, the approach

adopted in this rule will ensure that any

potential risks that arise as a

consequence of site-specific

circumstances will be thoroughly

reviewed and mitigated through the

NRC licensing process.

H. Why Is Financial Assurance Beyond

10 CFR Part 61 Not Necessary?

You are not required to provide

additional financial assurance beyond

what NRC requires under 10 CFR part

61 or an NRC Agreement State requires

under the state equivalent regulations.

This decision is based on our review

and comparison of EPA and NRC

financial assurance regulations. (See

comparison document, Ref. 18.) Both

EPA and NRC financial assurance

regulations require a disposal facility to

provide sufficient funding to enable a

third-party to conduct closure and postclosure care activities. Financial

assurance for closure and post-closure

activities are the key elements of

financial assurance requirements under

both EPA and NRC regulations. Based

on our comparison and analysis of EPA

and NRC financial assurance

regulations, we have determined that

the financial assurance provided by the

NRC regulations will ensure that

sufficient funds will be available to

conduct the similar closure and postclosure care activities at a LLRWDF as

required under RCRA. We note that

there are variations between EPA and

NRC financial assurance requirements.

However, we conclude that as a whole,

the NRC financial assurance

requirements for the LLRWDF are

adequately protective, making

additional EPA financial assurance

requirements for a LLRWDF

unnecessary.

Similar to the financial assurance

requirements set out under 40 CFR part

264 subpart H for a RCRA hazardous

waste disposal facility, 10 CFR part 61

requires a LLRWDF to establish

financial assurance that will provide

funding for activities such as

decommissioning and closure of the

facility, cover placement over the

disposal unit, post-closure care, and

monitoring. NRC and NRC Agreement

States do not issue licenses to facilities

that cannot obtain financial assurance

and these regulatory authorities will

revoke licenses from facilities that

cannot maintain adequate coverage.

For post-closure care, the NRC and

NRC Agreement States require the

LLRWDFs to provide financial

assurance for an initial monitoring

period of five years (or longer if deemed

necessary by the regulatory authority)

followed by a period of institutional

control. At the completion of the fiveyear (or longer) initial post-closure

monitoring period, the license of the

LLRWDF is transferred from the

disposal facility operator to the State or

other Federal Agency who is the

property owner. At that time, the next

phase of the post-closure care period

begins. This second phase of the postclosure care period is the institutional

control period. The activities conducted

under the institutional control period

include monitoring, maintenance of

cover, and access control. The NRC or

NRC Agreement States also require that

the LLRWDF licensees’ financial

assurance include all the costs

associated with the institutional control

phase of the post-closure care period.

Specifically, prior to the issuance of the

license, the applicant needs to provide

for NRC review and approval, a copy of

a binding arrangement between the

applicant and the disposal site owner

that ensures that sufficient funds will be

available to cover the costs of

monitoring and any required

maintenance during the institutional

control period. (See 10 CFR part 61.)

The NRC or NRC Agreement State

reviews this arrangement periodically to

ensure that changes in inflation,

technology, and disposal facility

operations are reflected in the

arrangements. Thus, the responsibility

for funding the institutional control

period belongs to the licensee and is

assured prior to the issuance of the

license and subsequent transfer of the

license to the State or Federal Agency

for institutional control of the LLRWDF.

The institutional control period may last

up to 100 years thus providing financial

assurance for a considerably long period

of time. In comparison, EPA requires

RCRA land disposal facilities to provide

for 30 years of post-closure monitoring

unless the permitting authority modifies

the monitoring period.

Although we determined that the EPA

and NRC financial assurance

requirements are not identical under a

requirement-by-requirement

comparison, we believe that the overall

NRC financial assurance requirements

are adequately protective of human

health and the environment for a

LLRWDF receiving the exempted waste.

However, we requested public comment

on whether we should require

LLRWDFs to provide additional RCRA

financial assurance as part of the

conditional exemption.

Some commenters supported our

proposal of not imposing the RCRA

financial assurance requirement for

LLRWDFs, because they believed

adequate financial assurance exists

under NRC regulations. Some of these

commenters noted that further financial

assurance requirements could

discourage LLRWDFs from accepting

the exempted wastes. Other commenters

believed that it is necessary to impose

the additional RCRA financial assurance

requirement on a disposal facility

27256 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

receiving the exempted waste to address

the chemical constituents that will be

disposed of there.

As discussed above, our analysis

showed that the NRC or NRC Agreement

State provisions for financial assurance

will ensure that sufficient funds will be

available to conduct closure and postclosure care activities which are the key

elements of RCRA financial assurance

requirements. We do not expect the cost

for closure activities such as cover

placement and post-closure

maintenance activities, at a LLRWDF

receiving the exempted waste to differ

from the cost for the same activities at

the same LLRWDF if it did not receive

the exempted waste. Because NRC

regulations already require financial

assurance for closure and post-closure

activities, additional funding

requirements for the same activities

would be redundant.

We also believe that the NRC financial

assurance requirement for

decommissioning activities is adequate

for a LLRWDF that accepted the

exempted waste. We note that NRC

guidance has a provision that requires

cost estimates for decommissioning to

include the management of mixed waste

(which includes the RCRA chemical

constituents) during the

decommissioning process. (See ‘‘NMSS

Decommissioning Standard Review Plan

[NUREG/SR–1727]’’.) Therefore, we

believe that the NRC financial assurance

requirement is adequate, and we do not

need to require additional RCRA

financial assurance requirements.

IX. Regulatory Impacts

We anticipate that implementation of

this rule will result in positive net

benefits, resulting from cost savings and

risk reductions. We have based our

assessment on the best data available;

full references and details are available

in the Regulatory Impact Analysis

which accompanies today’s rule. (See

Ref. 14.)

The primary benefit of this rule is in

facilitating treatment and disposal of

mixed wastes, by addressing problems

caused by dual regulation of these

wastes. We estimate quantified net

benefits of this rule to range between

$4.1 million and $5.9 million per year.

Sections A and B below provide further

detail on benefits and costs associated

with this rule; Section C addresses

economic impacts. We base assessment

of benefits and costs on a comparison of

waste management after implementation

of this final rule compared with waste

management in the absence of this rule.

Significant uncertainties make it

unusually difficult to estimate the

impacts of this rulemaking. In addition

to uncertainties about the quantities of

LLMW generated in the U.S. there are

also questions about the eventual

disposition of these wastes. Although

this rulemaking creates opportunities

for disposal of much of this waste, these

opportunities also depend on as-yet

undetermined action by State regulatory

agencies, low-level radioactive waste

disposal facilities, and the generators

themselves. These uncertainties and

assumptions, however, do not affect the

Agency’s projection of positive net

benefits stemming from this rule; they

only affect the magnitude of that net

benefit. To the extent that any

generators can take advantage of storage

or disposal provisions of this proposal,

net benefits will accrue.

A. What Are the Regulatory Benefits of

This Rule?

The storage component of the rule

provides the most significant benefits of

this rule, from administrative cost

savings and from allowing certain

mixed wastes to decay-in-storage. Dollar

savings from the disposal portion of this

rulemaking are likely to be low, even

more so if the LLRWDFs (especially

Envirocare) do not accept the exempted

waste for disposal as LLRW. To estimate

the impact of the rule, EPA first needed

to characterize generation and

management of low-level waste and

low-level mixed waste in the nation.

In 1990, EPA, NRC and the Oak Ridge

National Laboratory conducted a survey

of commercially generated low-level

mixed waste. A report of the survey

findings was published in 1992 under

the title National Profile on

Commercially Generated Low-Level

Radioactive Mixed Waste. (See Ref. 8.)

As stated in the Executive Summary,

‘‘The * * * objective of the work was to

compile a national profile on the

volumes, characteristics, and treatability

of commercially generated low-level

mixed waste * * * by major facility

categories * * * [including] academic,

industrial, medical, and * * *

government facilities and nuclear

utilities.’’

‘‘The industrial category was

estimated to be the largest generator and

accumulator of mixed waste, with more

than 36% of the generation * * * of the

total mixed waste in the United States

in 1990.’’ (Ref. 8, National Profile, p.

40). Nuclear utilities accounted for

roughly 10 percent of the total

commercially generated LLMW volume

in the United States.

Based on our discussions with the

regulated community, we understand

that commercial generators of LLMW

have taken a number of steps, including

pollution prevention, waste

minimization, and source reduction

(such as using water-based scintillation

cocktails as opposed to the solventbased formulations), to reduce

quantities of LLMW they generate. Also,

nuclear power plants have instituted

steps for controlling the use of organic

solvents (for example, establishing

procedures to track quantities of organic

solvents purchased, used, and left over

and discarded). Therefore, despite

industrial growth over the intervening

years, we believe that the LLMW

volumes generated today may be similar

to those reported in 1992.

Based on this research and site visits

in 1998, we believe that there are a

number of LLMW generators, who could

benefit from this rulemaking. Using the

National Profile we estimated that the

national generation rate of mixed waste

was 108,000 cubic feet per year. (See

Regulatory Impact Analysis, Ref. 14, and

Regulatory Impact Analysis,

Background Documents, Ref. 17.) Some

federal facilities also generate LLMW.

The total volume of LLMW generated

annually by DOE facilities far exceeds

the volume generated by the commercial

sector.

Benefits from this rule may accrue in

the following areas.

• Permitting cost savings. Those

generators needing RCRA permits only

for storage or treatment of their mixed

wastes will save these permitting costs

and associated corrective action costs.

These cost savings are approximated at

$2.7 million per year.

• Other administrative cost savings.

Generators of mixed waste and Federal

and State RCRA regulating agencies are

expected to save approximately

$700,000 in administrative burden and

costs because of this rule.

• Decay-in-storage cost savings. The

rule will allow facilities to store certain

wastes while the radioactivity decays.

These wastes can then be treated and

disposed of as hazardous waste, which

is less expensive than LLMW treatment

and disposal. EPA estimates aggregate

cost savings from these waste streams

will be between $800,000 and $2.6

million per year.

• Other disposal cost savings. This

rule will facilitate disposal of wastes in

LLRWDFs, depending on approval by

state regulatory agencies and the

willingness of LLRWDFs to accept the

wastes, as well as limitations of the lowlevel waste disposal compact system.

These limitations mean that the savings

from the disposal exemption are

expected to be at most $100,000 per

year. EPA has not estimated savings

resulting from reduced storage costs.

• Risk Reductions. EPA anticipates

that generators will take advantage of

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27257

1The District of Columbia, Massachusetts,

Maryland, Rhode Island and West Virginia are

RCRA authorized States that have adopted mixed

waste regulations under State law but have not yet

been authorized to implement the mixed waste

regulations. This rule will become effective in these

jurisdictions when the State adopts and is

authorized for the final rule.

this rule to allow certain LLMW to

undergo decay-in-storage. NRC or the

NRC Agreement State approves a decayin-storage process which allows certain

short-lived radionuclides in these

wastes to decay to background levels.

The remaining decayed waste no longer

meets the definition of radioactive

under the AEA. Since EPA does not

expect these wastes to be treated or

handled during the radioactive decay

process, waste handlers in treatment

and transportation will not be exposed

to this radioactivity. Generators who

comply with existing RCRA regulations

are handling this waste while still

radioactive. This decrease in exposure

translates to an unquantified risk

reduction, attributable to the relaxed

RCRA storage restrictions in this rule.

DOE may also save on transportation

and disposal costs, to the extent that it

chooses to meet the conditions for

exemption and dispose of wastes in

commercial disposal facilities licensed

by NRC or an NRC Agreement State.

DOE would not gain permitting or

storage cost savings, since the storage

and treatment conditional exemption

regulations in this rule do not apply to

DOE facilities.

B. What Are the Costs of This Rule?

Generators taking advantage of storage

or disposal exemptions will incur costs

to meet notification conditions. EPA

estimates these costs to be

approximately $200,000 per year, in the

aggregate.

Under this rule, there will also be

some increased costs to EPA and RCRA

authorized States overseeing

management of mixed wastes. We

expect these entities to incur costs

associated with notification conditions

for generators and treaters of exempted

LLMW sending their waste for disposal

at LLRWDFs and related

implementation costs. This will result

in a small increase in costs for these

regulating bureaus estimated at $5,000

per year, in the aggregate.

C. What Are the Economic Impacts of

This Rule?

Economic impacts of this rulemaking

are expected to be minimal. Generators

who are not meeting regulatory

requirements for disposal will incur

spending for treatment and disposal of

wastes that previously had been

stranded in storage. These costs are

expected to total about $300,000 in

aggregate across the nation. These are

not true social costs, though, since these

generators are already liable for costs of

treatment and disposal of these wastes.

The effect of this rule will be to open

up disposal capacity for these wastes

which currently do not meet the waste

acceptance criteria of the existing

LLMW disposal facility. Without this

rulemaking, these legacy wastes might

simply continue to be stored on-site

indefinitely, leaving the generators in

violation of RCRA requirements. These

generators would incur not only storage

costs, but social costs associated with

being in violation of RCRA.

By allowing LLMW to be disposed of

as LLW, this rule may have impacts on

the national market for disposal of LLW,

although we have not specifically

modeled these impacts. The larger the

volume to be added to the disposal

market, the greater the effects are likely

to be. The largest volumes of LLW

potentially to be disposed of at

commercial LLRWDFs are those

generated by the Department of Energy,

including wastes from site cleanup and

remediation activities. Wastes from

commercial LLMW alone are not likely

to have any significant impact on these

markets.

The only possible negative impact

may fall upon the single mixed waste

disposal facility which currently accepts

some LLMW for disposal. By allowing

LLRWDFs to dispose of the LLMW that

meets Land Disposal Restrictions, this

rule may introduce some competition

into the market for disposal of LLMW.

X. State Authorization

As of December 2000, a total of 43

states and one territory were authorized

to implement RCRA mixed waste

regulations of 1986 (51 FR 24504),

which provide for the hazardous

components of mixed waste to be

managed under RCRA Subtitle C.1

Today’s rule will apply to the hazardous

component of mixed waste in a State

that has mixed waste authorization, but

only when the State amends its State

law and becomes authorized to

implement this final rule containing a

new conditional exemption. The

effective date will be the date the State

is authorized for this final rule. This

rulemaking affects the RCRA base

program implementing the Resource

Conservation and Recovery Act of 1976.

Therefore, authorization for this rule is

not automatic, but depends upon State

action. In addition, since the flexibility

provided by a conditional exemption for

disposal and permitting is considered

less stringent than the current RCRA

program, States are not required to

adopt this final rule. When choosing to

adopt this rule, States have the option

of being more stringent than a federal

requirement where they deem it

appropriate. (See 40 CFR 271.1(i).)

In Alaska, Hawaii, Iowa, Puerto Rico,

and the Virgin Islands, which are

jurisdictions not authorized to

implement any part of the RCRA

program, the federal government

implements the RCRA program. In these

jurisdictions, this final rule will become

effective 180 days after the date of

publication of this rule.

We encourage States and territories to

adopt this conditional exemption. The

conditional exemption does not

preclude regulation or enforcement by

States against generators who are not

eligible for the exemption or who do not

meet the conditions or requirements of

the exemption. Under this regulatory

framework, States retain their regulatory

oversight and RCRA enforceability

provisions over a noncompliant

claimant. The flexibility provided by

this rule is conditional. A LLMW

generator must meet the eligibility

provisions and conditions to qualify for

and maintain the exemption from

hazardous waste storage and disposal

regulations. Failure to meet the

conditions results in automatic loss of

the exemption; failure to meet the

requirements may result in fines and

penalties under the RCRA hazardous

waste enforcement program. In addition,

since the transportation and disposal

exemption may involve interstate

transportation of conditionally exempt

waste, the exemption must be

authorized in both the State of the

generator and the State where the

disposal site is located.

Note: If the waste is transported through a

State which considers the waste to be

hazardous, the transporter must be in

compliance with 40 CFR part 263, including

manifest provisions. EPA recommends that

the initiating facility note that the waste is

subject to today’s exemption in block 15 of

the manifest.

XI. Relationship With Other RCRA and

Environmental Programs

A. What Is the Relationship of Today’s

Rule With Other RCRA Regulatory

Programs?

1. Does This Rule Change How You

Determine if a Waste Is Hazardous?

No, the hazardous waste

determination remains unchanged. This

rule is a conditional exemption from the

RCRA regulatory definition of

hazardous waste. Under current RCRA

regulations, if you generate a solid

waste, you must determine if it is a

27258 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

hazardous waste as outlined in 40 CFR

262.11, Hazardous Waste

Determination. A generator of LLMW

must also determine if the waste is

excluded from regulation under 40 CFR

261.4, Exclusions. Next, a generator

must determine whether the waste

meets the regulatory description for a

listed hazardous waste in subpart D of

part 261, Lists of Hazardous Wastes. If

the waste is not a listed hazardous

waste, the generator must then

determine if the waste exhibits a

characteristic defined in subpart C of

part 261.

2. Can LLMW or Eligible NARM Be a

Non-Hazardous Waste Under This Rule?

LLMW, or Eligible NARM, meeting

the eligibility criteria and all the

conditions under the storage and

treatment or transportation and disposal

conditional exemption, will be

conditionally exempt from the

regulatory definition of hazardous waste

under RCRA Subtitle C, and therefore

managed as non-hazardous waste under

this rule.

3. How does the LLMW conditional

exemption differ from delisting under

40 CFR 260.22?

The evaluation criteria used for

delisting differ from today’s rule. In the

conditional exemption, the evaluation

criteria are national and categorical.

This contrasts with the evaluation

criteria for delisting, which are based

upon a designated waste stream and are

case specific. In delisting, we evaluate

the processes generating a specific waste

stream to determine the constituents

likely to be present, as well as the

potential variability in the waste. In

addition, conditionally exempt LLMW

must be managed in accordance with

applicable NRC regulations. Delisted

waste is generally managed as an

industrial solid waste.

4. Will My Waste Analysis Plan of My

RCRA-Permitted TSDF Change?

No, your waste analysis plan will not

change. If you are a generator or an

owner or an operator of a RCRApermitted or interim status TSDF, also

licensed by the NRC for managing LLW,

and plan to claim a conditional

exemption, you remain subject to the

waste analysis and waste analysis plan

requirements of 40 CFR part 268. If you

treat to Land Disposal Restriction

standards, you must have a waste

analysis plan. This includes DOE

treatment facilities treating LLMW to

meet the conditions for the disposal

exemption.

5. Will the Final Rule Change How the

RCRA Closure Requirements Apply to

My Disposal Facility?

If you have a disposal facility subject

to NRC or NRC Agreement State

regulations for disposal of LLW, and

you accept conditionally exempt waste

under this rule, the hazardous waste

facility closure requirements do not

apply to any units at your facility

receiving only conditionally exempt

LLMW.

6. How Does the Conditional Exemption

Relate to RCRA Air Emission Standards?

RCRA Air Emission Standards do not

apply to a LLRWDF where conditionally

exempt LLMW or Eligible NARM waste

has been disposed of.

B. What Is the Relationship of This Rule

to Other Environmental Programs?

1. How Are CERCLA Actions Affected

by Today’s Rule?

The affect of today’s rule on

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA) actions depends on

whether the waste will be managed on

or off the CERCLA site. Off-site disposal

of CERCLA remediation waste must

comply with all conditions of today’s

final rule for a generator to take

advantage of the exemption provided,

including that the waste must be

disposed of at a LLRWDF that is

licensed by the NRC or an NRC

Agreement State, and is in compliance

with the 10 CFR part 61 or equivalent

State regulations. Off-site rule

requirements in 40 CFR part 300

continue to apply to CERCLA

remediation wastes.

Mixed waste managed during on-site

waste remediation must meet all

applicable or relevant and appropriate

requirements of Federal or State

environmental laws or justify a waiver

from those standards. This rule requires

that the disposal facility be licensed and

overseen by the NRC or NRC Agreement

State. On-site CERCLA response action

must comply with the substantive

provisions of environmental regulations

and standards, but not the

administrative provisions. Therefore, no

permit or license is required for on-site

activities. In accordance with the

National Contingency Plan and

CERCLA, today’s regulation is not

expected to be an applicable

requirement at most CERCLA sites

managing LLMW. However, relevant

and appropriate determinations are sitespecific and these may or may not be

deemed relevant and appropriate given

site-specific conditions. In general, we

expect that most CERCLA sites will

meet both the substantive provisions of

the RCRA Subtitle C landfill

requirements as well as the 10 CFR part

61 requirements for a LLRWDF.

2. How Might Clean Air Act Regulations

Be Affected?

This rule will not affect Clean Air Act

regulations. LDR treatment of LLMW or

Eligible NARM remains subject to the

air emission standards applicable to

hazardous waste treatments under

RCRA.

3. How Might Clean Water Act

Regulations Be Affected?

This rule will not affect Clean Water

Act regulations.

XII. Effective Date November 13, 2001

XIII. Regulatory Assessment

Requirements

A. Executive Order 12866:

Determination of Significance

Under Executive Order (E.O.) 12866,

(58 FR 51,735 October 4, 1993) EPA

must determine whether the regulatory

action is ‘‘significant,’’ and therefore,

subject to OMB review and the

requirements of the Executive Order

The Executive Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

• Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

• Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

• Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

• Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order

Under the terms of Executive Order

12866, it has been determined that this

rule is a ‘‘significant regulatory action’’

because it raises novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order This

rule addresses problems caused by dual

regulation of mixed wastes, and

facilitates treatment and disposal of

mixed wastes. We estimate quantified

net benefits of this rule to range between

$4.1 million and $5.9 million per year.

As a significant regulatory action this

rule was submitted to OMB for review.

Changes made in response to OMB

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27259

suggestions or recommendations will be

documented in the public record.

Under the terms of Executive Order

12866, EPA must prepare for any

significant regulatory action an

assessment of the action’s potential

costs and benefits. If that action satisfies

the first of the criteria listed above, this

assessment must include, to the extent

feasible, a quantification of these costs

and benefits, the underlying analyses

supporting such quantification, and an

assessment of the costs and benefits of

reasonably feasible alternatives to the

planned regulation. This final rule is not

economically significant, although it is

expected to yield net benefits to society

because of reduced waste management

and administrative costs for both

generators of mixed waste and

regulatory agencies, and reduced worker

exposures. A summary description of

costs and benefits associated with this

final rule appears in section IX of this

preamble. A regulatory impact analysis

has been prepared and is available in

the docket for today’s final rulemaking.

B. Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

This final rule will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government as specified in

Executive Order 13132, because the rule

will not impose any requirements on

States or any other level of government.

As explained above, today’s final rule

may provide regulatory flexibility for

generators and treaters of LLMW by

establishing a conditional exemption

from RCRA Subtitle C requirements,

which States are not required to adopt.

Thus, the requirements of the Executive

Order do not apply to this rule.

C. Executive Order 12898:

Environmental Justice

Under Executive Order 12898,

‘‘Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations’ as well as through EPA’s

April 1995, ‘‘Environmental Justice

Strategy, OSWER Environmental Justice

Task Force Action Agenda Report’’ and

National Environmental Justice

Advisory Council, EPA has undertaken

to incorporate environmental justice

into its policies and programs. EPA is

committed to addressing environmental

justice concerns, and is assuming a

leadership role in environmental justice

initiatives to enhance environmental

quality for all residents of the United

States. The Agency’s goals are to ensure

that no segment of the population—

regardless of race, color, national origin,

or income—bears disproportionately

high and adverse human health and

environmental effects as a result of

EPA’s policies, programs, and activities.

To address this goal, EPA considered

the impacts of this rule on low-income

populations and minority populations.

This waste would be stored according to

other regulatory authorities (NRC or

NRC Agreement States) which offer

comparable protection to RCRA Subtitle

C. We evaluated the demographics of

the areas surrounding the three existing

commercial low-level radioactive waste

disposal facilities. We did not find

disproportionate populations of

minority groups residing in the

surrounding area. Most importantly, we

do not expect adverse environmental

impact as a result of the disposal rule.

The RCRA exempted waste will have

been treated, for example, to destroy

hazardous organic constituents and

stabilize toxic metals. The waste would

then be placed in a container, managed,

and disposed of, in an environmentally

sound manner according to NRC or NRC

Agreement State equivalent regulations

for disposal of low-level radioactive

waste. Therefore, we believe there will

not be disproportionately high and

adverse environmental or economic

impacts on any minority or low-income

group, or on any community.

D. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997)

applies to any rule that is determined to

be ‘‘economically significant’’ as

defined under Executive Order 12866,

and concerns an environmental health

or safety risk that EPA has reason to

believe may have a disproportionate

effect on children. If the regulatory

action meets both criteria, the Agency

must evaluate the environmental health

or safety effects of the planned rule on

children, and explain why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

This rule is not subject to Executive

Order 13045 because it is not an

economically significant rule as defined

by Executive Order 12866, and because

the Agency does not have reason to

believe the environmental or health and

safety risks addressed by this action

present a disproportionate risk to

children. We find that waste

management under NRC regulations for

radioactive waste could diminish (not

increase) concerns regarding

environmental health or safety risks for

all, including children.

E. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

On November 6, 2000, the President

issued Executive Order 13175 (65 FR

67249) entitled, ‘‘Consultation and

Coordination with Indian Tribal

Governments.’’ Executive Order 13175

took effect on January 6, 2001, and

revoked Executive Order 13084 (Tribal

Consultation) as of that date. EPA

developed this final rule, however,

during the period when Executive Order

13084 was in effect; thus, EPA

addressed tribal considerations under

Executive Order 13084. Under

Executive Order 13084, EPA may not

issue a regulation that is not required by

statute, that significantly or uniquely

affects the communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. This Executive

Order requires EPA to provide to OMB,

in a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process that permits elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Prior to the publication of the

November 1999 proposal, we briefed

two organizations with an interest in

tribal environmental issues on both the

storage and disposal exemptions we

27260 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

were proposing. The organizations were

the American Indian Environmental

Office, and the executive director and

staff of the Tribal Association of Solid

Waste and Emergency Response

(TASWER). TASWER staff indicated

that there was an annual tribal

conference the following week and the

representatives of tribes in attendance

would be informed about our proposed

rule and encouraged to comment. None

of the comments received were

identified by the sender as representing

tribes. Based on the discussion at our

meetings with tribal organizations, we

do not expect this rule to significantly

or uniquely affect the communities of

Indian tribal governments. Accordingly,

the requirements of Section 3(b) of

Executive Order 13084 do not apply to

this rule.

F. The Regulatory Flexibility Act (RFA)

as Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA) (5 U.S.C. 601 et seq.)

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today’s rule on small entities, small

entity is defined as: (1) A small business

that meets the Small Business

Administration size standards

established for industries as described

in the North American Industry

Classification System (see http://

www.sba.gov/size/NAICS-coverpage.html); (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s final rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

In determining whether a rule has a

significant economic impact on a

substantial number of small entities, the

impact of concern is any significant

adverse economic impact on small

entities, since the primary purpose of

the regulatory flexibility analysis is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities.’’ (5

U.S.C. 603 and 604.) Thus, an agency

may certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule.

The overall economic effect of this

regulation has been determined to be a

net savings to all regulated entities that

choose to avail themselves of a

conditional exemption for storage or

disposal of the mixed wastes they

generate. This rule will not impose

additional costs on any entities. We

have therefore concluded that today’s

final rule will relieve regulatory burden

for all small entities.

G. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA must prepare a written statement,

including a cost-benefit analysis, for

proposed and final rules with ‘‘Federal

mandates’’ that may result in

expenditures to State, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of sec. 205

do not apply when they are inconsistent

with applicable law. Moreover, sec. 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective,

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under 203 of the UMRA

a small government agency plan. The

plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals, and informing,

educating, and advising small

governments on compliance with the

regulatory requirements.

Today’s rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector because it imposes no

enforceable duty on any State, local, or

tribal governments or the private sector.

Thus, today’s rule is not subject to the

requirements of sections 202 and 205 of

UMRA.

H. National Technology Transfer and

Advancement Act of 1995

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law No.

104–113 Section 12(d) (15 U.S.C. 272

note), directs EPA to use voluntary

consensus standards in its regulatory

activities, unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (for example, materials

specifications, test methods, sampling

procedures, and business practices) that

are developed or adopted by voluntary

consensus standards bodies. The

NTTAA directs EPA to provide

Congress, through OMB, with

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. This

final rule does not involve technical

standards. In 1997, EPA and NRC

published in the Federal Register joint

testing guidance for sampling and

testing of mixed waste. Facilities subject

to this rule may continue to use that

guidance, which allows analysis of

smaller samples and reduces exposure

of workers to radiation hazards.

I. Paperwork Reduction Act

Under the implementing regulations

for the Paperwork Reduction Act (44

U.S.C. 3501 et seq.), an agency is

required to certify that any agencysponsored collection of information

from the public is necessary for the

proper performance of its functions, has

practical utility, does not unnecessarily

duplicate information otherwise

reasonably accessible to the agency, and

reduces to the extent practicable and

appropriate the burden on those

required to provide the information. (5

CFR 1320.9.) Any proposed collection of

information must be submitted, along

with this certification, to the Office of

Management and Budget (OMB) for

approval before the collection of

information goes into effect.

The information collection

requirements in this final rule have been

submitted for approval to OMB under

the Paperwork Reduction Act. An

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27261

Information Collection Request (ICR)

document has been prepared by EPA

(ICR No. 1922.01), and a copy may be

obtained from Sandy Farmer, Office of

Environmental Information, Collection

Strategies Division, U.S. Environmental

Protection Agency (2137), 1200

Pennsylvania Ave., NW., Washington,

DC 20460 or by calling (202) 260–2740.

This information collection is

required to provide documentation of

conditional exemption from RCRA

Subtitle C requirements. The

exemptions from RCRA Subtitle C under

today’s action would require no

government approval before being

effective. For this final rule, information

collection, maintenance, and reporting

issues are especially important.

Successful implementation of today’s

rule will depend upon the

documentation, certification, and

verification provided by the information

collection.

The general authority for this rule is

1006, 2002(a), 3001–3009 and 3013 of

the Solid Waste Disposal Act of 1970, as

amended by the Resource Conservation

and Recovery Act of 1976 (RCRA), and

the Hazardous and Solid Waste

Amendments of 1984 (HSWA), and the

Federal Facility Compliance Act of 1992

(FFCA), 42 U.S.C. 6905, 6912(a), 6921–

6929 and 6934. To the extent that this

rule imposes any information collection

requirements under existing RCRA

regulations promulgated in previous

rulemakings, those requirements have

been approved by OMB under the

Paperwork Reduction Act, and have

been assigned one of the following OMB

control numbers: 2050–0009 (ICR no.

1573, Part B Permit Application, Permit

Modifications, and Special Permits);

2050–0120 (ICR 1571, General Facility

Hazardous Waste Standards); 2050–

0028 (ICR 261, Notification of

Hazardous Waste Activity); 2050–0034

(ICR 262, RCRA Hazardous Waste

Permit Application and Modification,

Part A); 2050–0039 (ICR 801,

Requirements for Generators,

Transporters, and Waste Management

Facilities under the Hazardous Waste

Manifest System); 2050–0035 (ICR 820,

Hazardous Waste Generator Standards);

and 2050–0024 (ICR 976, 1997

Hazardous Waste Report).

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR parts 9 and 48 CFR chapter

15. This rule includes new information

collection requirements subject to OMB

review under the Paperwork Reduction

Act. To be eligible for a conditional

exemption for stored low-level mixed

waste, facilities must notify EPA or the

RCRA Authorized State of their claims

for a conditional exemption for their

LLMW and storage units. If they do not

choose to claim a conditional

exemption, generators will have to

comply with the existing Subtitle C

recordkeeping requirements for the lowlevel mixed wastes they generate.

This rule also includes notification

requirements for generators or treaters of

LLMW and Eligible NARM seeking a

conditional exemption from the

definition of hazardous waste, which

would allow disposal of the waste

meeting the conditions for exemption in

a low-level radioactive waste disposal

facility licensed by NRC or an NRC

Agreement State. If the generator or

treater of LLMW chooses not to claim an

exemption, it remains subject to the

existing hazardous waste disposal

requirements.

Some of the requirements contained

in today’s final action entail new

reporting and recordkeeping

requirements for members of the

regulated public, if an exemption is

claimed. The requirements have

practical utility in that they are

necessary to ensure that the disposal of

conditionally exempted low-level mixed

waste is safely managed. If generators

choose to avail themselves of the

regulatory flexibility discussed in this

final rule, they will be subject to the

notification and recordkeeping

requirements described above. However,

such notification and recordkeeping

would replace the paperwork burden

required for treatment and storage

permits for their low-level mixed wastes

if they did not claim a conditional

exemption. States (but not Tribes)

would have additional recordkeeping

requirements for receiving a generator’s

notice to claim a conditional exemption,

and for reviewing a generator’s notice to

reclaim a conditional exemption.

We have prepared a full ICR in

support of today’s final rule. We

estimate the total annual public burden

associated with the storage and

treatment conditional exemption to

average 3.5 hours per respondent. We

estimate the reporting burden to average

1.9 hours per respondent annually,

including time for reading the

regulations, and preparing and

submitting notifications. We estimate

the recordkeeping burden to average 1.6

hours per respondent annually,

including the time for recording the

results of inventories and inspections,

and maintaining records pertaining to

the mixed waste exemption.

The total public burden associated

with the transportation and disposal

exemption is estimated to average 3.9

hours per respondent. We estimate the

reporting burden to average 2.9 hours

per respondent annually, including time

for reading the regulations, and

preparing and submitting notifications.

The annual recordkeeping burden is

estimated to average 1.0 hours per

respondent and includes the time for

maintaining records pertaining to the

mixed waste exemption.

Burden means the total time, effort, or

financial resources expended to

generate, maintain, retain, disclose, or

provide information to or for a Federal

agency. Burden includes the time

needed to:

• Review instructions;

• Develop, acquire, install, and utilize

technology and systems for the purposes

of collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information;

• Adjust the existing methods to

comply with any previously applicable

instructions and requirements;

• Train personnel to be able to

respond to a collection of information;

• Search data sources;

• Complete and review the collection

of information; and

• Transmit or otherwise disclose the

information.

We received no public comment on

the proposed information collection.

J. The Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A Major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective November 13, 2001.

XIV. Supporting Documents

1. EPA Consent Decree, HWIR Settlement

Agreement, April 11, 1997.

2. EPA Side-bar letter to EEI/USWAG dated

April 7, 1997.

3. ‘‘Review of Waste Management Practices

and Compliance History at Nuclear

Power Plants and Other Entities that

Generate Low-Level Mixed Waste.’’ April

12, 1999.

27262 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

4. ‘‘Comparison of the EPA’s RCRA

Requirements and the NRC’s Licensing

Requirements for the Treatment (In

Tanks and Containers) and Storage of

Low-Level Mixed Wastes at Nuclear

Facilities’’, April 2001.

5. Comment Summary Document—Approach

to Reinventing Regulations of Storing

Mixed Low-Level Radioactive Waste;

Advance Notice of Proposed Rulemaking

(ANPRM), September 21,1999.

6. Report to Utility Solid Waste Activities

Group and Utility Nuclear Waste

Management Group on Comparative

Assessment of the Environmental

Protection Agency’s Regulations for

Hazardous Waste Tank Systems (40 CFR

part 265, subpart J) and Comparable

Nuclear Regulatory Commission

Requirements, July 1988.

7. Technical Evaluation on Document for the

Disposal of Mixed Waste at Low-Level

Radioactive Waste Disposal Facilities,

Draft Technical Background Document,

July 1999.

8. National Profile on Commercially

Generated Low-Level Radioactive Mixed

Waste, NUREG/CR–5938, December

1992.

9. Meeting Notes for EPA Meeting with LowLevel Radioactive Waste Disposal

Facilities, December 7, 1998.

10. RCRA Hazardous Constituents and Waste

Codes Associated with Mixed Waste,

December 1997.

11. Joint State/EPA Workshop on Mixed

Waste Rulemaking, October 7–9, 1998,

Meeting Summary.

12. Comparison of NRC and EPA’s Waste

Tracking and Related Record Keeping

Requirements, July 1999.

13. Technical Alternatives Considered for

Evaluating Protectiveness of Low-Level

Waste Disposal Facilities, July 21, 1999.

14. Regulatory Impact Analysis: Storage,

Treatment, Transportation, and Disposal

of Mixed Waste, February 2001.

15. Summary of Public Comments on

‘‘Contingent Management of Mixed

Waste’’ Submitted in Response to the

1995 HWIR Proposal, July 1999.

16. The Management of Mixed Low-Level

Radioactive Waste in the Nuclear Power

Industry, NUMARC/NESP–006, Nuclear

Management Resources Council, Inc.,

Washington, D.C., January 1990.

17. Regulatory Impact Analysis: Storage,

Treatment, Transportation, and Disposal

of Mixed Waste—Supplemental

Documents, February 2001.

18. Comparison of Financial Assurance

Requirements Under EPA and NRC

Regulations, November, 2000.

19. Discussion with DOT on Mixed Waste

Transportation on August 1999.

20. Letter from Elizabeth A. Cotsworth,

Director, Office of Solid Waste, to J. Dale

Givens, State of Louisiana, Department

of Environmental Quality, March 27,

1998.

Note that this is a list of supporting

documents for both the proposed and

final rules. Reference documents

numbered 5, 11, 13, and 15 were

referred to in the proposed rule but not

in the final rule.

List of Subjects in 40 CFR Part 266

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements, Waste treatment and

disposal.

Dated: April 30, 2001.

Christine Todd Whitman,

Administrator.

For the reasons set forth in the

preamble 40 CFR part 266 is amended

as follows:

PART 266—STANDARDS FOR THE

MANAGEMENT OF SPECIFIC

HAZARDOUS WASTES AND SPECIFIC

TYPES OF HAZARDOUS WASTE

MANAGEMENT FACILITIES

1. The authority citation for part 266

is revised to read as follows:

Authority: 42 U.S.C. 1006, 2002(a), 3001–

3009, 3014, 6905, 6906, 6912, 6921, 6922,

6924–6927, 6934, and 6937.

2. Part 266 is amended by adding

subpart N to read as follows:

Subpart N—Conditional Exemption for LowLevel Mixed Waste Storage, Treatment,

Transportation and Disposal

Terms

Sec.

266.210 What definitions apply to this

subpart?

Storage and Treatment Conditional

Exemption and Eligibility

266.220 What does a storage and treatment

conditional exemption do?

266.225 What wastes are eligible for the

storage and treatment conditional

exemption?

266.230 What conditions must you meet for

your LLMW to qualify for and maintain

a storage and treatment exemption?

Treatment

266.235 What waste treatment does the

storage and treatment conditional

exemption allow?

Loss of Conditional Exemption

266.240 How could you lose the

conditional exemption for your LLMW

and what action must you take?

266.245 If you lose the storage and

treatment conditional exemption for

your LLMW, can the exemption be

reclaimed?

RecordKeeping

266.250 What records must you keep at

your facility and for how long?

Reentry Into RCRA

266.255 When is your low-level mixed

waste no longer eligible for the storage

conditional exemption?

Storage Unit Closure

266.260 Do closure requirements apply to

units that stored LLMW prior to the

effective date of subpart N?

Transportation and Disposal Conditional

Exemption

266.305 What does the transportation and

disposal conditional exemption do?

Eligibility

266.310 What wastes are eligible for the

transportation and disposal conditional

exemption?

Conditions

266.315 What are the conditions you must

meet for your waste to qualify for and

maintain the transportation and disposal

exemption?

266.320 What treatment standards must

your eligible waste meet?

266.325 Are you subject to the manifest and

transportation condition in § 266.315(b)?

266.330 When does the transportation and

disposal exemption take effect?

266.335 Where must your exempted waste

be disposed of?

266.340 What type of container must be

used for disposal of exempted waste?

Notification

266.345 Whom must you notify?

Recordkeeping

266.350 What records must you keep at

your facility and for how long?

Loss of Transportation and Disposal

Conditional Exemption

266.355 How could you lose the

transportation and disposal conditional

exemption for your waste and what

actions must you take?

266.360 If you lose the transportation and

disposal conditional exemption for a

waste, can the exemption be reclaimed?

Subpart N—Conditional Exemption for

Low-Level Mixed Waste Storage and

Disposal

Terms

§ 266.210 What definitions apply to this

subpart?

This subpart uses the following

special definitions:

Agreement State means a state that

has entered into an agreement with the

NRC under subsection 274b of the

Atomic Energy Act of 1954, as amended

(68 Stat. 919), to assume responsibility

for regulating within its borders

byproduct, source, or special nuclear

material in quantities not sufficient to

form a critical mass.

Certified delivery means certified mail

with return receipt requested, or

equivalent courier service, or other

means, that provides the sender with a

receipt confirming delivery.

Director refers to the definition in 40

CFR 270.2.

Eligible Naturally Occurring and/or

Accelerator-produced Radioactive

Material (NARM) is NARM that is

eligible for the Transportation and

Disposal Conditional Exemption. It is a

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27263

NARM waste that contains RCRA

hazardous waste, meets the waste

acceptance criteria of, and is allowed by

State NARM regulations to be disposed

of at a low-level radioactive waste

disposal facility (LLRWDF) licensed in

accordance with 10 CFR part 61 or NRC

Agreement State equivalent regulations.

Exempted waste means a waste that

meets the eligibility criteria in 266.225

and meets all of the conditions in

§ 266.230, or meets the eligibility

criteria in 40 CFR 266.310 and complies

with all the conditions in § 266.315.

Such waste is conditionally exempted

from the regulatory definition of

hazardous waste described in 40 CFR

261.3.

Hazardous Waste means any material

which is defined to be hazardous waste

in accordance with 40 CFR 261.3,

‘‘Definition of Hazardous Waste.’’

Land Disposal Restriction (LDR)

Treatment Standards means treatment

standards, under 40 CFR part 268, that

a RCRA hazardous waste must meet

before it can be disposed of in a RCRA

hazardous waste land disposal unit.

License means a license issued by the

Nuclear Regulatory Commission, or

NRC Agreement State, to users that

manage radionuclides regulated by

NRC, or NRC Agreement States, under

authority of the Atomic Energy Act of

1954, as amended.

Low-Level Mixed Waste (LLMW) is a

waste that contains both low-level

radioactive waste and RCRA hazardous

waste.

Low-Level Radioactive Waste (LLW) is

a radioactive waste which contains

source, special nuclear, or byproduct

material, and which is not classified as

high-level radioactive waste, transuranic

waste, spent nuclear fuel, or byproduct

material as defined in section 11e.(2) of

the Atomic Energy Act. (See also NRC

definition of ‘‘waste’’ at 10 CFR 61.2)

Mixed Waste means a waste that

contains both RCRA hazardous waste

and source, special nuclear, or

byproduct material subject to the

Atomic Energy Act of 1954, as amended.

Naturally Occurring and/or

Accelerator-produced Radioactive

Material (NARM) means radioactive

materials that:

(1) Are naturally occurring and are

not source, special nuclear, or

byproduct materials (as defined by the

AEA) or

(2) Are produced by an accelerator.

NARM is regulated by the States under

State law, or by DOE (as authorized by

the AEA) under DOE orders.

NRC means the U. S. Nuclear

Regulatory Commission.

We or us within this subpart, means

the Director as defined in 40 CFR 270.2.

You means a generator, treater, or

other handler of low-level mixed waste

or eligible NARM.

Storage and Treatment Conditional

Exemption and Eligibility

§ 266.220 What does a storage and

treatment conditional exemption do?

The storage and treatment conditional

exemption exempts your low-level

mixed waste from the regulatory

definition of hazardous waste in 40 CFR

261.3 if your waste meets the eligibility

criteria in § 266.225 and you meet the

conditions in § 266.230.

§ 266.225 What wastes are eligible for the

storage and treatment conditional

exemption?

Low-level mixed waste (LLMW),

defined in § 266.210, is eligible for this

conditional exemption if it is generated

and managed by you under a single NRC

or NRC Agreement State license. (Mixed

waste generated at a facility with a

different license number and shipped to

your facility for storage or treatment

requires a permit and is ineligible for

this exemption. In addition, NARM

waste is ineligible this exemption.)

§ 266.230 What conditions must you meet

for your LLMW to qualify for and maintain

a storage and treatment exemption?

(a) For your LLMW to qualify for the

exemption you must notify us in writing

by certified delivery that you are

claiming a conditional exemption for

the LLMW stored on your facility. The

dated notification must include your

name, address, RCRA identification

number, NRC or NRC Agreement State

license number, the waste code(s) and

storage unit(s) for which you are seeking

an exemption, and a statement that you

meet the conditions of this subpart.

Your notification must be signed by

your authorized representative who

certifies that the information in the

notification is true, accurate, and

complete. You must notify us of your

claim either within 90 days of the

effective date of this rule in your State,

or within 90 days of when a storage unit

is first used to store conditionally

exempt LLMW.

(b) To qualify for and maintain an

exemption for your LLMW you must:

(1) Store your LLMW waste in tanks

or containers in compliance with the

requirements of your license that apply

to the proper storage of low-level

radioactive waste (not including those

license requirements that relate solely to

recordkeeping);

(2) Store your LLMW in tanks or

containers in compliance with chemical

compatibility requirements of a tank or

container in 40 CFR 264.177, or 264.199

or 40 CFR 265.177, or 265.199;

(3) Certify that facility personnel who

manage stored conditionally exempt

LLMW are trained in a manner that

ensures that the conditionally exempt

waste is safely managed and includes

training in chemical waste management

and hazardous materials incidents

response that meets the personnel

training standards found in 40 CFR

265.16(a)(3);

(4) Conduct an inventory of your

stored conditionally exempt LLMW at

least annually and inspect it at least

quarterly for compliance with subpart N

of this part; and

(5) Maintain an accurate emergency

plan and provide it to all local

authorities who may have to respond to

a fire, explosion, or release of hazardous

waste or hazardous constituents. Your

plan must describe emergency response

arrangements with local authorities;

describe evacuation plans; list the

names, addresses, and telephone

numbers of all facility personnel

qualified to work with local authorities

as emergency coordinators; and list

emergency equipment.

Treatment

§ 266.235 What waste treatment does the

storage and treatment conditional

exemption allow?

You may treat your low-level mixed

waste at your facility within a tank or

container in accordance with the terms

of your NRC or NRC Agreement State

license. Treatment that cannot be done

in a tank or container without a RCRA

permit (such as incineration) is not

allowed under this exemption.

Loss of Conditional Exemption

§ 266.240 How could you lose the

conditional exemption for your LLMW and

what action must you take?

(a) Your LLMW will automatically

lose the storage and treatment

conditional exemption if you fail to

meet any of the conditions specified in

§ 266.230. When your LLMW loses the

exemption, you must immediately

manage that waste which failed the

condition as RCRA hazardous waste,

and the storage unit storing the LLMW

immediately becomes subject to RCRA

hazardous waste container and/or tank

storage requirements.

(1) If you fail to meet any of the

conditions specified in § 266.230 you

must report to us and the NRC, or the

oversight agency in the NRC Agreement

State, in writing by certified delivery

within 30 days of learning of the failure.

Your report must be signed by your

authorized representative certifying that

27264 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

the information provided is true,

accurate, and complete. This report

must include:

(i) The specific condition(s) you failed

to meet;

(ii) A description of the LLMW

(including the waste name, hazardous

waste codes and quantity) and storage

location at the facility; and

(iii) The date(s) on which you failed

to meet the condition(s).

(2) If the failure to meet any of the

conditions may endanger human health

or the environment, you must also

immediately notify us orally within 24

hours and follow up with a written

notification within five days. Failures

that may endanger human health or the

environment include, but are not

limited to, discharge of a CERCLA

reportable quantity or other leaking or

exploding tanks or containers, or

detection of radionuclides above

background or hazardous constituents

in the leachate collection system of a

storage area. If the failure may endanger

human health or the environment, you

must follow the provisions of your

emergency plan.

(b) We may terminate your

conditional exemption for your LLMW,

or require you to meet additional

conditions to claim a conditional

exemption, for serious or repeated

noncompliance with any requirement(s)

of subpart N of this part.

§ 266.245 If you lose the storage and

treatment conditional exemption for your

LLMW, can the exemption be reclaimed?

(a) You may reclaim the storage and

treatment exemption for your LLMW if:

(1) You again meet the conditions

specified in § 266.230; and

(2) You send us a notice by certified

delivery that you are reclaiming the

exemption for your LLMW. Your notice

must be signed by your authorized

representative certifying that the

information contained in your notice is

true, complete, and accurate. In your

notice you must do the following:

(i) Explain the circumstances of each

failure.

(ii) Certify that you have corrected

each failure that caused you to lose the

exemption for your LLMW and that you

again meet all the conditions as of the

date you specify.

(iii) Describe plans that you have

implemented, listing specific steps you

have taken, to ensure the conditions

will be met in the future.

(iv) Include any other information you

want us to consider when we review

your notice reclaiming the exemption.

(b) We may terminate a reclaimed

conditional exemption if we find that

your claim is inappropriate based on

factors including, but not limited to, the

following: you have failed to correct the

problem; you explained the

circumstances of the failure

unsatisfactorily; or you failed to

implement a plan with steps to prevent

another failure to meet the conditions of

§ 266.230. In reviewing a reclaimed

conditional exemption under this

section, we may add conditions to the

exemption to ensure that waste

management during storage and

treatment of the LLMW will protect

human health and the environment.

Recordkeeping

§ 266.250 What records must you keep at

your facility and for how long?

(a) In addition to those records

required by your NRC or NRC

Agreement State license, you must keep

records as follows:

(1) Your initial notification records,

return receipts, reports to us of failure(s)

to meet the exemption conditions, and

all records supporting any reclaim of an

exemption;

(2) Records of your LLMW annual

inventories, and quarterly inspections;

(3) Your certification that facility

personnel who manage stored mixed

waste are trained in safe management of

LLMW including training in chemical

waste management and hazardous

materials incidents response; and

(4) Your emergency plan as specified

in § 266.230(b).

(b) You must maintain records

concerning notification, personnel

trained, and your emergency plan for as

long as you claim this exemption and

for three years thereafter, or in

accordance with NRC regulations under

10 CFR part 20 (or equivalent NRC

Agreement State regulations), whichever

is longer. You must maintain records

concerning your annual inventory and

quarterly inspections for three years

after the waste is sent for disposal, or in

accordance with NRC regulations under

10 CFR part 20 (or equivalent NRC

Agreement State regulations), whichever

is longer.

Reentry Into RCRA

§ 266.255 When is your LLMW no longer

eligible for the storage and treatment

conditional exemption?

(a) When your LLMW has met the

requirements of your NRC or NRC

Agreement State license for decay-instorage and can be disposed of as nonradioactive waste, then the conditional

exemption for storage no longer applies.

On that date your waste is subject to

hazardous waste regulation under the

relevant sections of 40 CFR parts 260

through 271, and the time period for

accumulation of a hazardous waste as

specified in 40 CFR 262.34 begins.

(b) When your conditionally exempt

LLMW, which has been generated and

stored under a single NRC or NRC

Agreement State license number, is

removed from storage, it is no longer

eligible for the storage and treatment

exemption. However, your waste may be

eligible for the transportation and

disposal conditional exemption at

§ 266.305.

Storage Unit Closure

§ 266.260 Do closure requirements apply

to units that stored LLMW prior to the

effective date of Subpart N?

Interim status and permitted storage

units that have been used to store only

LLMW prior to the effective date of

subpart N of this part and, after that

date, store only LLMW which becomes

exempt under this subpart N, are not

subject to the closure requirements of 40

CFR parts 264 and 265. Storage units (or

portions of units) that have been used to

store both LLMW and non-mixed

hazardous waste prior to the effective

date of subpart N or are used to store

both after that date remain subject to

closure requirements with respect to the

non-mixed hazardous waste.

Transportation and Disposal

Conditional Exemption

§ 266.305 What does the transportation

and disposal conditional exemption do?

This conditional exemption exempts

your waste from the regulatory

definition of hazardous waste in 40 CFR

261.3 if your waste meets the eligibility

criteria under § 266.310, and you meet

the conditions in § 266.315.

Eligibility

§ 266.310 What wastes are eligible for the

transportation and disposal conditional

exemption?

Eligible waste must be:

(a) A low-level mixed waste (LLMW),

as defined in § 266.210, that meets the

waste acceptance criteria of a LLRWDF;

and/or

(b) An eligible NARM waste, defined

in § 266.210.

Conditions

§ 266.315 What are the conditions you

must meet for your waste to qualify for and

maintain the transportation and disposal

conditional exemption?

You must meet the following

conditions for your eligible waste to

qualify for and maintain the exemption:

(a) The eligible waste must meet or be

treated to meet LDR treatment standards

as described in § 266.320.

(b) If you are not already subject to

NRC, or NRC Agreement State

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27265

equivalent manifest and transportation

regulations for the shipment of your

waste, you must manifest and transport

your waste according to NRC

regulations as described in § 266.325.

(c) The exempted waste must be in

containers when it is disposed of in the

LLRWDF as described in § 266.340.

(d) The exempted waste must be

disposed of at a designated LLRWDF as

described in § 266.335.

§ 266.320 What treatment standards must

your eligible waste meet?

Your LLMW or eligible NARM waste

must meet Land Disposal Restriction

(LDR) treatment standards specified in

40 CFR part 268, subpart D.

§ 266.325 Are you subject to the manifest

and transportation condition in

§ 266.315(b)?

If you are not already subject to NRC,

or NRC Agreement State equivalent

manifest and transportation regulations

for the shipment of your waste, you

must meet the manifest requirements

under 10 CFR 20.2006 (or NRC

Agreement State equivalent regulations),

and the transportation requirements

under 10 CFR 1.5 (or NRC Agreement

State equivalent regulations) to ship the

exempted waste.

§ 266.330 When does the transportation

and disposal exemption take effect?

The exemption becomes effective

once all the following have occurred:

(a) Your eligible waste meets the

applicable LDR treatment standards.

(b) You have received return receipts

that you have notified us and the

LLRWDF as described in § 266.345.

(c) You have completed the packaging

and preparation for shipment

requirements for your waste according

to NRC Packaging and Transportation

regulations found under 10 CFR part 71

(or NRC Agreement State equivalent

regulations); and you have prepared a

manifest for your waste according to

NRC manifest regulations found under

10 CFR part 20 (or NRC Agreement State

equivalent regulations), and

(d) You have placed your waste on a

transportation vehicle destined for a

LLRWDF licensed by NRC or an NRC

Agreement State.

§ 266.335 Where must your exempted

waste be disposed of?

Your exempted waste must be

disposed of in a LLRWDF that is

regulated and licensed by NRC under 10

CFR part 61 or by an NRC Agreement

State under equivalent State regulations,

including State NARM licensing

regulations for eligible NARM.

§ 266.340 What type of container must be

used for disposal of exempted waste?

Your exempted waste must be placed

in containers before it is disposed. The

container must be:

(a) A carbon steel drum; or

(b) An alternative container with

equivalent containment performance in

the disposal environment as a carbon

steel drum; or

(c) A high integrity container as

defined by NRC.

Notification

§ 266.345 Whom must you notify?

(a) You must provide a one time

notice to us stating that you are claiming

the transportation and disposal

conditional exemption prior to the

initial shipment of an exempted waste

from your facility to a LLRWDF. Your

dated written notice must include your

facility name, address, phone number,

and RCRA ID number, and be sent by

certified delivery.

(b) You must notify the LLRWDF

receiving your exempted waste by

certified delivery before shipment of

each exempted waste. You can only

ship the exempted waste after you have

received the return receipt of your

notice to the LLRWDF. This notification

must include the following:

(1) A statement that you have claimed

the exemption for the waste.

(2) A statement that the eligible waste

meets applicable LDR treatment

standards.

(3) Your facility’s name, address, and

RCRA ID number.

(4) The RCRA hazardous waste codes

prior to the exemption of the waste

streams.

(5) A statement that the exempted

waste must be placed in a container

according to § 266.340 prior to disposal

in order for the waste to remain exempt

under the transportation and disposal

conditional exemption of subpart N of

this part.

(6) The manifest number of the

shipment that will contain the

exempted waste.

(7) A certification that all the

information provided is true, complete,

and accurate. The statement must be

signed by your authorized

representative.

Recordkeeping

§ 266.350 What records must you keep at

your facility and for how long?

In addition to those records required

by your NRC or NRC Agreement State

license, you must keep records as

follows:

(a) You must follow the applicable

existing recordkeeping requirements

under 40 CFR 264.73, 40 CFR 265.73,

and 40 CFR 268.7 of this chapter to

demonstrate that your waste has met

LDR treatment standards prior to your

claiming the exemption.

(b) You must keep a copy of all

notifications and return receipts

required under §§ 266.355, and 266.360

for three years after the exempted waste

is sent for disposal.

(c) You must keep a copy of all

notifications and return receipts

required under § 266.345(a) for three

years after the last exempted waste is

sent for disposal.

(d) You must keep a copy of the

notification and return receipt required

under § 266.345(b) for three years after

the exempted waste is sent for disposal.

(e) If you are not already subject to

NRC, or NRC Agreement State

equivalent manifest and transportation

regulations for the shipment of your

waste, you must also keep all other

documents related to tracking the

exempted waste as required under 10

CFR 20.2006 or NRC Agreement State

equivalent regulations, including

applicable NARM requirements, in

addition to the records specified in

§ 266.350(a) through (d).

Loss of Transportation and Disposal

Conditional Exemption

§ 266.355 How could you lose the

transportation and disposal conditional

exemption for your waste and what actions

must you take?

(a) Any waste will automatically lose

the transportation and disposal

exemption if you fail to manage it in

accordance with all of the conditions

specified in § 266.315.

(1) When you fail to meet any of the

conditions specified in § 266.315 for any

of your wastes, you must report to us,

in writing by certified delivery, within

30 days of learning of the failure. Your

report must be signed by your

authorized representative certifying that

the information provided is true,

accurate, and complete. This report

must include:

(i) The specific condition(s) that you

failed to meet for the waste;

(ii) A description of the waste

(including the waste name, hazardous

waste codes and quantity) that lost the

exemption; and

(iii) The date(s) on which you failed

to meet the condition(s) for the waste.

(2) If the failure to meet any of the

conditions may endanger human health

or the environment, you must also

immediately notify us orally within 24

hours and follow up with a written

notification within 5 days.

(b) We may terminate your ability to

claim a conditional exemption for your

27266 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

waste, or require you to meet additional

conditions to claim a conditional

exemption, for serious or repeated

noncompliance with any requirement(s)

of subpart N of this part.

§ 266.360 If you lose the transportation

and disposal conditional exemption for a

waste, can the exemption be reclaimed?

(a) You may reclaim the

transportation and disposal exemption

for a waste after you have received a

return receipt confirming that we have

received your notification of the loss of

the exemption specified in § 266.355(a)

and if:

(1) You again meet the conditions

specified in § 266.315 for the waste; and

(2) You send a notice, by certified

delivery, to us that you are reclaiming

the exemption for the waste. Your

notice must be signed by your

authorized representative certifying that

the information provided is true,

accurate, and complete. The notice

must:

(i) Explain the circumstances of each

failure.

(ii) Certify that each failure that

caused you to lose the exemption for the

waste has been corrected and that you

again meet all conditions for the waste

as of the date you specify.

(iii) Describe plans you have

implemented, listing the specific steps

that you have taken, to ensure that

conditions will be met in the future.

(iv) Include any other information you

want us to consider when we review

your notice reclaiming the exemption.

(b) We may terminate a reclaimed

conditional exemption if we find that

your claim is inappropriate based on

factors including, but not limited to: you

have failed to correct the problem; you

explained the circumstances of the

failure unsatisfactorily; or you failed to

implement a plan with steps to prevent

another failure to meet the conditions of

§ 266.315. In reviewing a reclaimed

conditional exemption under this

section, we may add conditions to the

exemption to ensure that transportation

and disposal activities will protect

human health and the environment.

[FR Doc. 01–11408 Filed 5–15–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 261 and 268

[FRL–6975–2]

RIN 2050–AE07

Hazardous Waste Identification Rule

(HWIR): Revisions to the Mixture and

Derived-From Rules

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today’s action finalizes the

retention of the mixture rule and the

derived-from rule in the Resource

Conservation and Recovery Act (RCRA),

with two revisions. The mixture and

derived-from rules ensure that

hazardous wastes that are mixed with

other wastes or that result from the

treatment, storage or disposal of

hazardous wastes do not escape

regulation and thereby cause harm to

human health and the environment.

EPA is finalizing two revisions to the

mixture and derived-from rules. These

revisions would narrow the scope of the

mixture and derived-from rules,

tailoring the rules to more specifically

match the risks posed by particular

wastes. The first revision is an

expanded exclusion for mixtures and/or

derivatives of wastes listed solely for the

ignitability, corrosivity, and/or

reactivity characteristics. The second

revision is a new conditional exemption

from the mixture and derived-from rules

for ‘‘mixed wastes’’ (that is, wastes that

are both hazardous and radioactive).

DATES: These final regulations are

effective on August 14, 2001.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

The Docket Identification Number is F–

2001–WHWF–FFFFF. The RIC is open

from 9 a.m. to 4 p.m., Monday through

Friday, excluding federal holidays. To

review docket materials, it is

recommended that the public make an

appointment by calling 703 603–9230.

The public may copy a maximum of 100

pages from any regulatory docket at no

charge. Additional copies cost $0.15/

page. The index and some supporting

materials are available electronically.

See the ‘‘Supplementary Information’’

section for information on accessing

them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at 800 424–9346 or TDD 800

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

703 412–9810 or TDD 703 412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact Tracy Atagi, Office of Solid

Waste 5304W, U.S. Environmental

Protection Agency, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460–

0002, 703–308–8672,

atagi.tracy@epa.gov.

SUPPLEMENTARY INFORMATION: The index

and many of the supporting materials

are available on the Internet. You can

find these materials at <http://

www.epa.gov/epaoswer/hazwaste/id/

hwirwste/index.htm>.

Affected Entities

Entities potentially affected by this

action are generators of industrial

hazardous waste, and entities that treat,

store, transport and/or dispose of these

wastes. This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action.

SIC code NAICS code List of potentially affected US Industrial Entities

Revision to 40 CFR 261.3 Definition of hazardous waste

2800 ........................................................ 32xxxx .................................................... Chemicals & allied products manufacturing.

2819 ........................................................ Five possible codes ............................... Industrial inorganic chemicals manufacturing.

2821 ........................................................ 325211 ................................................... Plastics materials & resins manufacturing.

2833 ........................................................ 325411 ................................................... Medicinal chemicals & botanicals manufacturing.

2834 ........................................................ 325412 ................................................... Pharmaceutical preparations manufacturing.

2851 ........................................................ 32551 ..................................................... Paints & allied manufacturing.

2869 ........................................................ Five possible codes ............................... Industrial organic chemicals manufacturing.

2879 ........................................................ 32532 ..................................................... Pesticides & agricultural chemicals manufacturing.

3089 ........................................................ Four possible codes .............................. Plastics products manufacturing.

3241 ........................................................ 32731 ..................................................... Hydraulic cement products manufacturing.

3479 ........................................................ Four possible codes .............................. Fabricated metal coating & allied services

3711 ........................................................ Five possible codes ............................... Motor vehicle & passenger car bodies manufacturing.

4212 ........................................................ 562111 & 562112 .................................. Local trucking services (industrial waste shipment).

4953 ........................................................ Five possible codes ............................... Refuse (industrial waste) treatment/disposal services.