[Federal Register Volume 61, Number 82 (Friday, April 26, 1996)]
[Notices]
[Pages 18588-18592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10380]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5463-4]


Extension of the Policy on Enforcement of RCRA Sec. 3004(j) 
Storage Prohibition at Facilities Generating Mixed Radioactive/
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Policy statement.

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SUMMARY: EPA is announcing a limited extension of its policy (56 FR 
42730, August 29, 1991) on the civil enforcement of the storage 
prohibition in sec. 3004(j) of the Resource Conservation and Recovery 
Act (RCRA) at facilities which generate ``mixed waste'' regulated under 
both the RCRA subtitle C hazardous waste program and the Atomic Energy 
Act (AEA). The policy affects only mixed wastes that are prohibited 
from land disposal under the RCRA land disposal restrictions (LDR) and 
for which there are no available options for treatment or disposal. 
This action renews the August 1991 policy for an additional two year 
period for some mixed wastes, based on EPA's determination that 
treatment technology and disposal capacity <SUP>1 for these mixed 
wastes are still not available.
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    \1\  For purposes of this policy statement, ``available 
treatment technology and disposal capacity'' means that a facility 
is commercially available to treat or dispose of a particular waste 
and the facility has either (1) a RCRA permit or interim status; (2) 
a research, development, and demonstration permit under 40 CFR 
270.65; or (3) a land treatment permit under 40 CFR 270.63.
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    Pursuant to the terms of this policy, EPA will treat violations of 
section 3004(j) involving relatively small volumes of waste as reduced 
priorities among EPA's potential civil enforcement actions. EPA's 
primary concern is with (1) mixed waste facilities that are not 
pursuing environmentally responsible management of their stored mixed 
wastes, especially those storing large quantities of mixed waste, and 
(2) those that are storing wastes for which treatment technology is 
commercially available. Generators must explore all viable treatment 
and disposal alternatives during the next two years since new 
technologies may come on line at any time. If treatment technology and 
disposal capacity are available, it is incumbent upon the generator to 
use them. EPA anticipates employing RCRA Sec. 3007 authority to ensure 
that this policy is not abused, with particular focus on ensuring that 
emerging treatment technologies are fully utilized and on confirming 
that those wastes for which no treatment exists are stored safely.

EFFECTIVE DATE: April 21, 1996.

FOR FURTHER INFORMATION CONTACT: Nancy Hunt, Federal, State and Tribal 
Programs Branch, Office of Solid Waste; Telephone (703) 308-8762.

SUPPLEMENTARY INFORMATION:

I. Background

A. Mixed Waste and the LDR Storage Prohibition

    ``Mixed wastes'' are wastes that contain both a hazardous waste 
component regulated under Subtitle C of RCRA and a radioactive 
component consisting of source, special nuclear, or byproduct material 
regulated under the AEA. EPA clarified that RCRA applies to wastes 
which contain both types of components on July 3, 1986 (51 FR 24504). 
The definition of mixed waste was added to the RCRA statute by the 
Federal Facility Compliance Act (FFCA) of 1992, 42 U.S.C. 6912, 6939, 
and 6961. Mixed wastes are a subset of hazardous wastes, and as such, 
are subject to the land disposal restrictions in 40 CFR Part 268. 
Currently, most mixed wastes are subject to the LDRs, except for some 
newly listed or identified hazardous wastes that are mixed with AEA 
radioactive materials and do not yet have EPA treatment standards. 
Certain newly listed wastes that are mixed with radioactive materials, 
and soil and debris contaminated with certain hazardous wastes (which 
also may be radioactive) are currently subject to variances from the 
LDR treatment standards (See 40 CFR 268.38).

[[Page 18589]]

    The aspect of the LDRs affected by the policy extension set forth 
in this notice is the ``storage prohibition'' enacted in Hazardous and 
Solid Waste Amendments (HSWA) sec. 3004(j). This provision prohibits 
any storage of a land disposal prohibited waste (including mixed waste) 
except ``for the purpose of the accumulation of such quantities of 
hazardous waste as are necessary to facilitate proper recovery, 
treatment, or disposal.''
    The storage prohibition has relevance to mixed waste management, 
since there currently is only one facility that EPA is aware of, 
Envirocare of Utah, Inc., that provides disposal capacity for certain 
types (i.e., mainly low activity and high volume mixed wastes) of 
commercially generated mixed waste. Also, there are limited treatment 
options for much of the mixed waste generated by commercial generators 
(e.g. nuclear power reactors, fuel cycle, and materials licensees) and 
by Federal agencies. EPA has previously concluded that storage of a 
waste pending development of treatment technology does not constitute 
storage to accumulate sufficient quantities to facilitate proper 
treatment or disposal. This interpretation was upheld by the U.S. Court 
of Appeals for the District of Columbia Circuit in the case of Edison 
Electric Institute v. EPA, 996 F.2d 326 (D.C. Cir. 1993). EPA, however, 
believes that because of the relatively small quantities of mixed waste 
that are generated by commercial facilities (typically two 55 gallon 
drums or less per year per facility), there has not, as yet, been 
sufficient economic incentive to develop and operate mixed waste 
treatment or disposal facilities to address many types of mixed waste. 
Therefore, commercial generators may have little option but to store 
those wastes for which treatment technology or disposal capacity is not 
yet available. This does not diminish the obligation of mixed waste 
generators to work to develop adequate treatment capacity.

B. Mixed Waste Treatment Technology and Disposal Capacity

    Prior to issuing the 1991 policy (56 FR 42730, August 29, 1991) on 
the civil enforcement of the storage prohibition, EPA determined that 
inadequate treatment technology and disposal capacity existed to treat 
or dispose of many mixed waste streams. This determination was 
supported by data from several surveys conducted by States and Regional 
Low Level Waste Compacts, by information available in the Office of 
Technology Assessment's October, 1990 report on low-level waste issues 
(``Partnerships Under Pressure-Managing Commercial Low-Level 
Radioactive Waste''), and by commenters on EPA LDR rulemakings.
    In 1992, EPA and NRC published a joint survey on commercial 
generators entitled ``National Profile on Commercially Generated Low-
Level Radioactive Mixed Waste'' (NUREG/CR-5938, December, 1992). This 
survey supported the view that a treatment capacity shortfall existed 
for commercial low-level mixed waste streams. The Profile provided a 
snapshot of the commercial low-level mixed waste universe in 1990, and 
it estimated a treatment capacity shortfall of at least 12,000 cubic 
feet based on the treatment demand in 1990. The treatment/disposal 
capacity assessment for the 1992 Profile was based upon information 
from several companies that are still treating mixed waste (i.e., 
Diversified Scientific Services, Inc. (DSSI), NSSI Recovery Services, 
Inc. (NSSI), and Perma-Fix Environmental Services (PFF), formerly 
Quadrex Corporation. In addition, two companies had plans to treat 
mixed waste, Envirocare of Utah, Inc. (Envirocare), and Scientific 
Ecology Group, Inc. (SEG).<SUP>2 The enforcement policy was extended in 
April, 1994 (59 FR 18813, April 20, 1994) based upon an anticipated 
improvement in treatment technology and disposal capacity. Some 
improvements have occurred in the interim as noted in a Department of 
Energy (DOE) study of available, or soon to be available, treatment 
technologies for mixed waste. This study by the National Low-Level 
Waste Management Program at the Idaho National Engineering Laboratory 
was published in May 1995 under the title ``Mixed Waste Management 
Options: 1995 Update'' (DOE/LLW-219) and includes treatment options and 
waste acceptance criteria for mixed waste management facilities as of 
1994 (in Appendices C-1 through C-4) and names and phone numbers for 
points of contact. The update describes four companies that are 
currently accepting and treating mixed wastes. EPA understands that 
DSSI in Kingston, Tennessee incinerates most types of liquid mixed 
wastes; Envirocare in Tooele County, Utah treats high volume mixed 
wastes and provides disposal services for mixed waste; PFF in 
Gainesville, Florida processes liquid scintillation materials for 
incineration; and NSSI in Houston, Texas processes mixed waste for off-
site incineration or disposal. In addition, the study cites Scientific 
Ecology Group, Inc. (SEG) in Oak Ridge, Tennessee as a licensed 
processor of radiologically contaminated materials which has applied 
for a RCRA Part B permit for treating low-level hazardous wastes.
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    \2\  Reference in this policy to specific companies providing 
waste treatment or disposal should not be read as a specific 
endorsement of any company or technology nor as confirmation that 
the technology offered by any of these companies is appropriate for 
a particular waste, which can be determined only on a case by case 
basis.
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    The study also lists (page 4-19) several treatment technologies 
being evaluated by DOE for applicability to treatment and disposal of 
mixed low-level radioactive waste, including biodegration, freeze, 
crystallization, biocatalytic destruction of nitrates, ion exchange and 
acid leaching for mercury removal, thermal treatment technologies for 
waste destruction such as plasma arc incineration and steam reforming, 
thermal vitrification, and thermosplastic encapsulation. In addition, 
EPA has become aware of an emerging treatment technology which has been 
developed by Molten Metal Technology, Inc. in Waltham, Massachusetts. 
Their patented quantum catalytic extraction process for the recycling 
of radiation contaminated hazardous wastes was tested in pilot 
demonstrations of the technology in 1995, and has been recognized as a 
Best Demonstrated Available Technology (BDAT) and a viable alternative 
to incineration for some hazardous wastes. The company anticipates a 
facility in Oak Ridge, Tennessee will be operational in 1996.
    Recent EPA contact with company officials substantiated that DSSI 
currently has excess capacity for thermal treatment of liquid mixed 
wastes meeting their acceptance criteria. NSSI, a RCRA permitted 
treatment, storage and disposal facility for radioactive, hazardous and 
mixed wastes which accepts only private sector wastes, also has 
available capacity for mixed wastes meeting its acceptance criteria 
according to company personnel. NSSI is permitted for all EPA waste 
codes, and is licensed for all radionuclides, including special nuclear 
material. PFF, formerly Quadrex, has current treatment capacity for 
liquid scintillation cocktail fluids and ignitable wastes, and plans to 
apply for a RCA Part B permit modification to increase the number of 
waste codes it can accept. An amendment expanding PFF's radiation 
license was approved in 1996. SEG currently accepts radioactive waste, 
and intends to provide mixed waste treatment, including incineration, 
once its RCRA permit is approved. SEG may have some treatment capacity 
on-line by the end of the policy extension period. Envirocare received 
a mixed waste treatment permit in 1993. It provides treatment and land 
disposal facilities for mixed wastes meeting its

[[Page 18590]]

acceptance criteria and the radionuclide limitations of its license and 
has capacity to treat 150 tons of waste per day. Thus, there has been 
some improvement in the mixed waste treatment capacity situation in the 
past two years.
    Based on the ``Mixed Waste Treatment Study'' prepared for the 
Electric Power Research Institute and finalized in early 1996, EPA 
understands that there are still some mixed wastes for which treatment 
technologies or disposal facilities may not yet be available, 
particularly for nuclear utilities. The study was developed to provide 
member utilities with updated information on mixed waste storage and 
emerging treatment technologies, including catalytic extraction 
process, steam reforming, vitrification, and supercritical water 
oxidation. Many of these technologies appear promising, but are not 
currently operational.
    In an effort to help generators locate mixed waste treatment, 
storage, and disposal facilities (TSDFs), EPA is developing an Interest 
Home Page that lists commercially available mixed waste TSDFs. This 
list should not be seen as complete or as a recommendation or 
endorsement of any of these facilities. This list only represents those 
companies that have expressed an interest in participating in EPA's 
Mixed Waste Internet HomePage. EPA does not endorse or promote 
technologies or companies that provide treatment, storage, or disposal 
capacity for any waste including mixed waste. Companies that wish to 
participate should contact EPA at the number listed for this Federal 
Register notice.
    Thus, EPA is providing a limited extension of the enforcement 
policy for an additional two years. However, this extended policy 
applies only to those waste streams for which no treatment technology 
or disposal capacity is available. Generators should understand that 
any existing treatment technology or disposal capacity must be used. 
EPA does not intend to extend this policy on a routine or indefinite 
basis, and may withdraw this policy at any time. EPA's willingness to 
further extend the 1991 policy at this time is based on positive 
developments in treatment technology and disposal capacity during the 
past two years.
    Prospects for new mixed waste treatment technology and disposal 
capacity continue to be driven largely by the treatment needs 
identified by the DOE, since DOE's waste volumes dwarf those of the 
commercial sector. The next few years will be significant for bringing 
on-line the facilities, the processes, and capacities identified in the 
site-specific treatment plans required by the Federal Facility 
Compliance Act for managing DOE's significant mixed waste inventories. 
EPA expects that the commercial and governmental generators affected by 
this policy extension will also be beneficiaries of the statutory and 
market forces that are currently addressing the treatment capacity 
issues within the DOE complex. Therefore, a two year limited extension 
of this policy should foster greater coordination of the solutions to 
the treatment capacity shortfall that affects all generators.

C. Need for Generators To Explore Treatment and Disposal Options

    The land disposal restrictions found in Title 40 CFR Part 268 
require generators to treat hazardous wastes to specified treatment 
standards. EPA emphasizes that generators must continue to explore all 
viable treatment alternatives during this extension since new 
technologies may come on line at any time. Generators should be 
prepared to demonstrate their good faith efforts at locating available 
capacity for each of their mixed wastes. In addition, generators should 
also explore the potential benefits of consolidating their wastes with 
like wastes from other generators, and developing or procuring 
treatment capacity to address more efficiently the waste streams that 
are pooled in this fashion. The option of consolidating the management 
of DOE and commercially generated wastes has been a topic of much 
discussion between DOE and those interests responsible for developing 
and regulating new commercial low-level radioactive waste facilities. 
EPA urges the continuation of these discussions, and the participation 
of the commercial generator interests in the debate.

II. Summary of Policy

A. Storage Prohibition Policy Extension

    In this notice, EPA is announcing a limited extension of its policy 
(56 FR 42730, August 29, 1991) on civil enforcement of the storage 
prohibition in section 3004(j) of RCRA at facilities which generate 
limited quantities of mixed wastes. This policy does not apply to those 
mixed wastes for which treatment technology and/or disposal capacity is 
currently available or becomes available during the effective period of 
this extension. This policy is not final agency action, but is intended 
solely as guidance. It is not intended, nor can it be relied upon, to 
create any rights enforceable by any party in litigation with the 
United States. EPA officials may decide to follow the policy provided 
in this extension or to act at variance with the policy, based on an 
analysis of specific site circumstances. The Agency also reserves the 
right to change this policy at any time without public notice. EPA 
reserves the right to take any and all actions provided under RCRA with 
respect to activities at hazardous waste facilities and against persons 
who handle hazardous waste. The intent of the policy published on 
August 29, 1991 was to explain how RCRA section 3004(j) storage 
violations involving mixed wastes fit within the Agency's civil 
enforcement priorities. At that time, there was no available treatment 
technology or disposal capacity for most of the mixed wastes prohibited 
from land disposal. Treatment technology or disposal capacity is still 
unavailable for some of these mixed wastes as well as for additional 
mixed waste that became subject to the land disposal prohibitions 
during the initial extension of the mixed waste policy (April 20, 1994 
to April 20, 1996). Generators and storers of these wastes continue to 
find it impossible to comply with the section 3004(j) storage 
prohibition for some of their mixed waste, for which there are no 
available options for treatment or disposal. At the same time, however, 
generators of the affected mixed waste, through prudent waste 
management practices, are required to store their mixed wastes for the 
limited duration of this policy extension in a manner that poses 
minimal risk to public health or the environment. Responsible 
management practices should, therefore, minimize the environmental 
risks from these section 3004(j) storage violations.
    For mixed waste generators who are storing mixed wastes in an 
environmentally responsible manner as described in this policy where no 
viable treatment technology or disposal capacity exists or becomes 
available during this extension, EPA considers the violations of RCRA 
section 3004(j) involving relatively small volumes of waste to be 
reduced priorities among EPA's potential civil enforcement actions. Any 
enforcement activity arising from violations of section 3004(j) at 
these facilities will generally focus on determining whether these 
generators are managing their mixed wastes in an environmentally 
responsible manner and whether they are storing wastes for which 
treatment technology is commercially available (for example, most 
liquid mixed wastes). EPA's primary concern is with mixed waste 
generators that are not managing their stored mixed wastes in an

[[Page 18591]]

environmentally responsible manner, especially those storing large 
quantities of mixed waste.
    This policy extension is limited in duration, and terminates on 
April 20, 1998. During the period that this policy is in effect, EPA 
will again evaluate data that becomes available on generation, 
treatability, and treatment technology and disposal capacity for the 
mixed wastes affected by this policy. EPA may address the issue of 
mixed waste regulation under a supplemental proposal on HWIR mixed 
waste exit criteria. Mixed waste facilities should keep apprised of 
developments in this area. The Agency strongly encourages those 
managing mixed waste to expeditiously explore and develop additional 
treatment technologies and to provide data to EPA concerning the 
availability of capacity.
    As EPA explained in the August 1991 policy, the Agency recognizes a 
variety of indicators of environmentally responsible operation in 
determining the civil enforcement priority of section 3004(j) storage 
violations at particular mixed waste generator facilities. EPA believes 
that all of the factors described in the 1991 policy remain relevant to 
mixed waste generators during the period of this extension, except for 
the participation in the EPA/NRC profile which has been completed. 
These factors are described in Section IV of this document.

B. Limitations on Scope

    This policy affects only the civil judicial and administrative 
enforcement priorities that would arise solely from the act of storing 
LDR mixed wastes in contravention of RCRA section 3004(j). The policy 
is also limited in scope to those mixed waste streams for which 
treatment technology or disposal capacity is not available. The mixed 
wastes covered by this policy must be mixed wastes when generated: for 
example, a generator may not commingle distinct hazardous and 
radioactive waste streams in order to come within the scope of this 
policy.
    EPA intends that this policy apply both to the mixed wastes 
generated during the term of the policy, and to existing inventories of 
mixed wastes already in storage. The policy does not cover other 
violations of RCRA storage requirements, such as the storage facility 
standards of Subparts I through L and DD of 40 CFR Parts 264 (permitted 
facility standards) or 265 (interim status facility standards), or 
their State equivalents. EPA emphasizes that this policy does not 
affect any requirement under RCRA to obtain a storage permit, which is 
generally required if mixed wastes are stored for greater than 90 days. 
The policy does not extend to potential criminal violations of RCRA, 
for which prosecutorial discretion rests solely with the United States 
Attorney General.
    EPA intends to apply this policy to executive branch federal 
facilities, except facilities owned or operated by the Department of 
Energy or by the joint Navy/DOE Naval Nuclear Propulsion Program 
(NNPP). The just-expired policy extension did not apply to any 
executive branch federal facility because section 102(c) of the Federal 
Facility Compliance Act (FFCA), Public Law 102-386 (October 6, 1992) 
(not codified), delayed the waiver of sovereign immunity with respect 
to fines and penalties for violations of RCRA section 3004(j) involving 
storage of mixed waste for three years from October 1992 to October 
1995. The protection from fines and penalties obviated the need for 
applying this policy to executive branch federal facilities. Because 
the protection from fines and penalties has now expired, executive 
branch federal facilities are in the same situation as private 
facilities that generate and store mixed waste. Therefore, EPA believes 
it is appropriate to apply this policy to executive branch federal 
facilities in the same manner and to the same extent as it applies to 
private facilities.
    EPA will not apply this policy to DOE or to NNPP facilities. For 
DOE and NNPP facilities, the delay of the waiver of sovereign immunity 
from fines and penalties for RCRA section 3004(j) violations continues 
beyond October 1995, so long as DOE and NNPP are in compliance with the 
requirements of FFCA section 102(c)(3)(B). Section 102(c)(3)(B) 
requires DOE and NNPP to be in compliance with an approved plan to 
develop treatment capacities and technologies to treat a facility's 
mixed waste and an order requiring compliance with such plan issued in 
accordance with RCRA section 3021(b). EPA believes that with respect to 
DOE and NNPP, enforcement of RCRA section 3004(j) should be based on 
RCRA section 3021, and not on the terms of this policy.

C. Effects of Violations

    This policy affects only the civil enforcement priority that EPA 
will generally assign to section 3004(j) storage violations where the 
conditions of this policy have been met. If, however, a facility 
inspection or other information reveals significant RCRA violations--
other than of section 3004(j)--or a pattern of violations which 
evidence a disregard for compliance with the RCRA hazardous waste 
regulations, EPA may attach a greater priority to all violations--
including storage of mixed waste in violation of section 3004(j)-- at 
that facility. In addition, if treatment technology and/or disposal 
capacity are available, it is incumbent upon the generator to use it. 
EPA anticipates employing RCRA section 3007 authority to ensure that 
this policy is not abused, with particular focus on ensuring that 
appropriate emerging treatment technologies and disposal capacity are 
fully utilized and on confirming that those wastes for which no 
treatment exists are stored safely.

III. Applicability

    This policy applies to EPA enforcement activities in all States in 
which mixed waste falls within the jurisdiction of RCRA. It is not 
applicable in States where mixed waste is not regulated under RCRA, 
i.e., in States with final authorization which lack specific EPA 
approval of mixed waste regulatory programs. In those States where the 
State, as well as EPA, has authority to enforce the LDRs, this policy 
affects only the EPA enforcement programs.
    RCRA mixed waste jurisdiction applies in States which are 
unauthorized for the ``base'' RCRA program (i.e., which do not have 
final authorization). As of March 15, 1996, seven States and 
Territories have not received RCRA base authorization. These States and 
Territories are: Alaska, American Samoa, Hawaii, Iowa, Northern Mariana 
Islands, Puerto Rico, and Virgin Islands. This policy applies in these 
States and Territories, where the EPA Regional Offices administer both 
the base RCRA mixed waste program and the LDRs.
    RCRA mixed waste jurisdiction extends as well to authorized States 
that have been additionally authorized specifically for RCRA mixed 
waste programs. As of March 15, 1996, one Territory and 38 States are 
authorized to implement RCRA mixed waste programs. These States and 
Territory are: Alabama, Arizona, Arkansas, California, Colorado, 
Connecticut, Florida, Georgia, Guam, Idaho, Illinois, Indiana, Kansas, 
Kentucky, Louisiana, Michigan, Minnesota, Missouri, Mississippi, 
Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North 
Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South 
Dakota, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and 
Wyoming. The RCRA section 3004(j) storage prohibition is an

[[Page 18592]]

element of the LDRs enacted in the Hazardous and Solid Waste Amendments 
(HSWA) of 1984. HSWA requires EPA to implement the LDR provisions as 
they apply to mixed waste until the authorized States receive approval 
from EPA to implement the LDR provision in lieu of the Agency. EPA 
therefore implements the LDRs, and this policy applies, in the States 
with authorized RCRA mixed waste programs, until the States have also 
been authorized for their LDR programs.
    As of March 15, 1996, 30 States and one Territory with mixed waste 
programs had received final authorization to implement LDRs covering 
solvents and dioxins, and 22 States and one Territory have also 
received final authorization for or have adopted EPA's LDR rules 
through the Third Third. The 30 States and one Territory are: Alabama, 
Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, 
Guam, Kansas, Idaho, Illinois, Michigan, Minnesota, Missouri, 
Mississippi, Nevada, New York, North Carolina, New Mexico, North 
Dakota, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, 
Vermont, Wisconsin and Wyoming. These States' approved LDR authorities 
include State law counterparts to the RCRA section 3004(j) storage 
prohibition. As these States and Territories have independent authority 
to enforce the LDRs and section 3004(j), EPA's enforcement policy is 
not binding on them. Therefore, facility owners and operators should 
consult with the responsible officials in these States for 
clarification on these States' policy with respect to storage of LDR 
prohibited mixed waste.
    During the term of this policy, additional States may receive 
authorization for mixed waste or LDR programs. Facility owners and 
operators should track the authorization status of their State programs 
in order to ascertain whether they are covered by this policy, or 
whether other restrictions based on State law might apply to mixed 
waste storage.

IV. Highlights of Extended Enforcement Policy

    In order to demonstrate that they are pursuing environmentally 
responsible management of their mixed wastes (and therefore should be 
accorded a reduced civil enforcement priority for sec. 3004(j) 
violations), facility owner/operators generating mixed wastes should be 
undertaking at least the following steps.

A. Inventory and Compliance Assessment of Storage Areas

    Records should be maintained identifying each physical location or 
unit where mixed waste is stored, and identifying the method of storage 
[i.e., container or tank, see 40 CFR 264.73(b) or 265.73(b)]. An 
inspection of these storage areas for compliance with applicable RCRA 
standards for storage methods, including an assessment of compliance 
with the storage facility standards of 40 CFR Part 264 or Part 265 
(interim status), Subparts I-J and DD, or the State counterparts to 
these standards should be performed regularly (see 40 CFR 264.15 or 
265.15). The facility records should contain the results of the 
inspections as required by 40 CFR 264.73(b)(5) or 265.73(b)(5). EPA 
encourages facility owner/operators to take action promptly to correct 
any deficiencies, since EPA expects to focus its enforcement efforts 
regarding section 3004(j) violations on those situations where an 
inspection or other information reveals significant RCRA violation(s), 
or a pattern of violations that indicate a disregard for compliance 
with the RCRA Subtitle C requirements.

B. Identification of Mixed Wastes

    Facility owner/operators should maintain sufficient information to 
identify their mixed wastes. The identification should include the RCRA 
waste codes for the hazardous components, the source of the hazardous 
constituents and discussion of how the waste was generated (if known), 
the generation rate and volumes of mixed wastes in storage, and any 
process information relied upon to identify mixed wastes or make 
determinations that wastes are prohibited by the LDRs (See 40 CFR 
264.73 or 265.73).

C. Waste Minimization Plans

    EPA understands that many mixed waste generators and facility 
owner/operators are undertaking active measures to avoid the generation 
of mixed wastes. Each mixed waste generator and facility owner/operator 
should develop a waste minimization plan (See 58 FR 31114, May 28, 
1993, for guidance), and retain the plan at the facility. The plan 
should address process changes that can be made to reduce or eliminate 
mixed wastes, methods to minimize the volume of regulated wastes 
through better segregation of materials, and substitution of non-
hazardous materials. The plan should include a schedule for 
implementation, projections of volume reductions to be achieved, and 
assumptions that are critical to the accomplishment of the projected 
reductions.

D. Good Faith Efforts

    This policy is limited in scope to those LDR-prohibited mixed 
wastes for which no treatment technology or disposal capacity is 
available. As stated earlier, EPA recognizes that commercial treatment 
technology and disposal capacity do not exist for some types of mixed 
waste. However, since additional treatment technology or disposal 
capacity may become available in the future, facility owner/operators 
should be prepared to demonstrate that good faith efforts have been 
undertaken to ascertain whether treatment technology and disposal 
capacity is available for each of their mixed wastes and to utilize 
such treatment technology and disposal capacity.

    Dated: April 19, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.

Michael M. Stahl,
Acting Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 96-10380 Filed 4-25-96; 8:45 am]
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