530-2-^ CO/
Monday
March 1, 1999
Part II
Environmental
Protection Agency
40 CFR Chapter I
Apprpach to Reinventing Regulations of
Storing Mixed Low-Level Radioactive
Waste; Proposed Rule
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Federal Register/Vol. 64, No. 39, Monday, March 1, 1999/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Chapter I
; FRL.-6305-1]
RIN 2050-AE45
Approach to Reinventing Regulations
on Storing Mixed Low-Level
Radioactive Waste
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Advance notice of proposed
rulemaklng (ANPR).
SUMMARY: This ANPR describes several
options EPA Is considering to make our
regulations more flexible for generators
of mixed low-level radioactive waste
(MLLW) who are storing wastes that we
and the Nuclear Regulatory Commission
(NRC or Commission) oversee. In this
ANPR, we are requesting: comments on
options for storing mixed waste; other
suggestions on providing regulatory
flexibility to manage mixed waste: and
from generators of MLLW, Information
about generating such wastes and your
operating procedures and costs for
storing, treating, and disposing of these
wastes.
DATES: To make sure we consider your
comments they must be received by
April 15, 1999.
ADDRESSES: You can send an original
and two copies of your comments
re/erencing Docket Number F-99-
MLLP-FFFFF to (1) if using regular US
Postal Service mail: RCRA Docket
Information Center, Office of Solid
Waste (5305W), U.S. Environmental
Protection Agency Headquarters (EPA,
HQ). 401 M Street, SW.. Washington,
DC 20460. or (2) if using special
delivery, such as overnight express
service: RCRA Docket Information
Center (RIC). Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor,
Arlington. VA 22202. To reduce paper,
we are asking you to send one paper
copy, and an electronic copy by diskette
or Internet email. In this case, send your
comments to the RCRA Information
Center on labeled personal computer
diskettes in ASCII (TEXT) format or a
word processing format we can convert
to ASCn (TEXT). Please Include on the
disk label the name, version, and
edition of your word processing
software as well as your name. Protect
your diskette by putting It in a
protective mailing envelope. To send a
copy by Internet email, address It to:
rcra-docket0epamatl.epa.gov. Make
sure this copy is in ASCII format that
doesn't use special characters on
encryption. Cite the docket number F-
99-MLLP-FFFFF in your electronic file.
The RCRA Information Center is at
Crystal Gateway One. 1235 Jefferson
Davis Highway, First Floor, Arlington
Virginia. You may look at and copy
supporting information for RCRA rules
from 9 AM to 4 PM Monday through
Friday, except for Federal holidays. But
you must make an appointment to
review docket materials by calling (703)
603-9230. You may copy up to 100
pages from any regulatory document at
no cost. Additional copies cost $0.15
per page.
FOR FURTHER INFORMATION CONTACT: Fdr
general information, call the RCRA •
Hotline at 1-800-424-9346 or TDD 1-
800-553-7672 (hearing impaired).
Callers within the Washington
Metropolitan Area must dial 703-412-
9810 or TDD 703-412-3323 (hearing
impaired). The RCRA Hotline is open
Monday-Friday, 9 a.m. to 6 p.m..
Eastern Standard Time. For more
information on specific aspects of this
ANPR, telephone Nancy Hunt at (703)
308-8762, or Chris Rhyne at (703) 308-
8658, or write them at the Office of
Solid Waste (5303W), U.S.
Environmental Protection Agency, 401
M Street, SW, Washington. DC 20460.
SUPPLEMENTARY INFORMATION : The index
and electronically obtainable supporting
materials are available on the Internet.
Follow these instructions to access the
information electronically:
WWW: http://www.epa.gov/epaoswer/
hazwaste/radio.
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epasower
The official record for the action will be
kept in the paper form. Accordingly,
EPA will transfer all comments received
electronically into paper form and place
them in the official record which will
also include all comments submitted
directly in writing. The official record Is
the paper record maintained at the
ADDRESSES at the beginning of this
document.
EPA responses to comments, whether
the comments are written or electronic,
will be placed in the official record,
EPA will not immediately reply to
commenters electronically other than to
seek clarification of electronic
comments that may be garbled in
transmission or during conversion to
paper form, as discussed above.
Outline
I. Why Are We Publishing Today's ANPR?
H. What Approaches Can Simplify Dual
Regulation?
A. Conditional Exemption for Storage
1. Military Munitions Rule Precedent for
Conditional Exemptions
2. Court of Appeals Decision
3. Rationale for Conditional Exemption
4. Key Factors in Decision
5. Possible Conditions
6. What Facilities Might Be Eligible?
7. Would DOE Mixed Waste Be Eligible for
a Conditional Exemption?
B. Conditional Exemption for Decal-in-
Storage
C. Can I Treat Waste During Storage?
HI. Implementation
A. Enforcement and Notification
B. Future Amendments to NRC Regulations
C. Request of Public Comment
IV. Information Needs
V. Facts and Historical Background
A. What Is Mixed Waste?
B. Where Is Mixed Waste Generated?
C. Applicability of NRC Regulations
D. EPA Receipt of Rulemaking Petition
E. Policy of Lower Enforcement Priority for
Mixed Waste
VI. What Regulatory Efforts Affecting Mixed
Waste Are Underway at EPA?
A. April 1997 Consent Decree and Mixed
Waste Rulemaking Commitment
B. Summary of Approach for Mixed Waste
Disposal
C. Hazardous Waste Identification
Rulemaking (HWIR)
D. Waste Management Proposal by EPA's
Office of Radiation and Indoor Air
(ORIA)
VII. Regulatory Assessment Requirements
A: Executive Order (E.O.) 12866
B. Executive Order (E.O.) 12875,
Enhancing the Intergovernmental
Partnership
C. Executive Order (E.O.) 13084:
Consultation and Coordination with
Indian Tribal Governments
D. Executive Order (E.O.) 13045 Children's
Health Protection
E. The Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996
F. Unfunded Mandates Reform Act
G. National Technology Transfer and
Advancement Act of 1995
H. Paperwork Reduction Act
I. Executive Order (E.O.) 12898
Environmental Justice.
I. Why Are We Publishing Today *
ANPR?
Today's ANPR introduces strategics
we're considering to make regulations
more flexible for commercial generators
of Mixed Low-Level Radioactive Waste
(MLLW), for storage and treatment of
mixed waste. We are doing this in
response to EPA's long-held v»ev* that
the joint regulation of mixed waste
under the Resource Conservation and
Recovery Act and the Atomic Energy
Act creates compliance difficult ws and
may be, at times, redundant We an? also
responding to the regulated
community's concerns regarding the
inefficiencies of dual regulation of
mixed waste, the perceived miwrwar h of
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10065
*1 the two regulatory systems, and concern
for radiation exposure of workers. This
,l| ANPR focuses on facilities regulated by
the NRC or NRC Agreement States, and
on strategies for reducing or eliminating
the burden of dual regulation. These"
facilities include nuclear power plants,
fuel cycle facilities, pharmaceutical
companies, medical/research
laboratories, universities and academic
institutions, and others.
Our ANPR requests comments on
ways for EPA to address the issue of
dual regulation of mixed waste storage
and treatment. We're also asking
generators of MLLW to tell us the
volumes and nature (waste codes,
radionuclides present, and curie level)
of mixed wastes you generate and your
legacy * wastes in storage.
n. What Approaches Can Simplify Dual
Regulation?
A. Conditional Exemption for Storage
EPA is exploring options for
providing regulatory flexibility in mixed
waste management to the regulated
community that generates, stores, and
conducts on-site treatment of mixed
low-level radioactive waste (MLLW)
which is subject to NRC and EPA
oversight. We are exploring an option
modeled on the conditional exemption
developed for non-chemical waste
military munitions in the Military
Munitions Rule (40 CFR part 266). (As
discussed later in this ANPR, EPA is
also developing approaches to address
the disposal of mixed waste, but we are
k not soliciting comments on this issue in
today's ANPR.)
• 1. Military Munitions Rule Precedent for
Conditional Exemptions
The Military Munitions Rule
identifies when conventional and
chemical military munitions become a,
hazardous waste subject to RCRA
Subtitle C. In the case of the Military .-.-,
Munitions Rule, EPA developed a; ' ", -
conditional exemption approach foe- ". /
providing regulatory flexibility to thefc.-'';-
military for storing and transporting S J
non-chemical waste munitions. Uridec" i
the conditional exemption, non~
chemical waste military munitions that
meet the definition of "hazardous
waste" are not regulated under RCRA
Subtitle C as a hazardous waste so long1
as the facilities storing or transporting
these munitions meet all of the
conditions for storing and transporting
non-chemical waste munitions listed in
the rule. (For a complete discussion of
1 Legacy MLLW Is stored waste for which no
treatment technology or disposal capacity is
available.
the Military Munitions,,Rule, see 62 FR
6621; February 12, 1997.) ]
2. Court of Appeals Decision
The-Court of Appeals upheld all
aspects of the rule in Military Toxics
Projectv. EPA, 146 F. 3rd 948 (D.C. Cir.
1998). The court agreed 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 95S. The court agreed
that "Congress has not spoken directly
to the issue of conditional exemption,"
and upheld as reasonable EPA's '
interpretation that Section 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 conditional exemptions. Id.
3. Rationale for Conditional Exemption
In the munitions rule, EPA
conditionally exempted munitions
stored on site and transported1 off site to
DOD or commercial facilities. [However,
off-site storage and treatment remained
subject to RCRA. A comparable
approach for commercial MLLW would
be for EPA to provide a conditional
exemption for commercial generators of
MLLW who store mixed waste on site.
EPA would base the approach on the
NRC or the NRC Agreement State
licensing process and regulatory
requirements, and their adequacy in
addressing risks from RCRA hazardous
constituents. By a conditional
exemption, EPA could eliminate
redundant or dual requirements where:
wastes are managed safely and
mismanagement is unlikely; appropriate
safeguards, recordkeeping, and
monitoring are in place; and penalties or
other consequences may be imposed if
the governing regulatory framework is
'not followed.
4. Key Factors in Decision
' In studying a conditional exemption
from RCRA regulation for commercial
storage of MLLW, EPA will be ;
evaluating certain key factors. First, EPA
will evaluate whether NRC regulation of
stored commercial low-level waste
(LLW) adequately protects against
possible risks from RCRA hazardous
constituents in mixed waste. Although
NRC regulation and oversight is
designed primarily for radiation risks,
NRC, the regulated industry, and others
have argued that these standards largely
duplicate RCRA requirements and thus
will protect against chemical risks. In
this rulemaking, EPA will revieW the
licensing requirements and NRC
standards for the management of LLW
as compared to RCRA standards. EPA
will also complete a study comparing
NRC and EPA mixed waste storage
requirements. This study will
independently review the conclusions
reached in studies by USWAG. the
Electric Power Research Institute, and
the Nuclear Management and Resources
Council, Inc. (who represent members of
the power generation industry)
regarding applicable NRC .standards.
These parties concluded that the
technical design and operating
standards of the NRC meet or exceed
RCRA standards in virtually all respects,
though there were differences in certain
procedural requirements.
Second, as described below, EPA is
reviewing documentation of incidents
involving the management and on-site
treatment of radioactive wastes at
nuclear power facilities. The
preliminary information suggests that
these facilities generally have an
excellent low-level waste management
safety record. Thus, regulating mixed
wastes stored at these facilities under
RCRA Subtitle C may not provide
additional protection to human health
and the environment.
If these key factors demonstrate that
the NRC regulatory and licensing
program will adequately control risks
from hazardous constituents as well as
radioactive material, we might rely on
the safeguards of the NRC regulatory
framework during MLLW storage via a
conditional exemption. We are
interested in your suggestions for other
key factors needed to evaluate a
conditional exemption.
EPA Study of NRC Nuclear Power
Licenses
EPA is studying the regulatory and
licensing framework under which low-
level waste (LLW), and therefore MLLW.
is stored by waste generators. EPA is
also looking into provisions in low-level
waste generator licenses, in particular
nuclear power plan licenses, concerning
the on-site treatment of LLW prior to
shipment off-site for disposal to assess
whether these requirements are
protective of human health and the
environment. Though NRC
requirements concerning the generation,
storage, and treatment of LLW are more
performance based (for example, no
releases/leaks), rather than prescriptive
as in RCRA (where'types of drums and
waste management are specified to
prevent leaks), the protection from
exposure to radioactive waste may serve
as well to protect human health arid the
environment from exposure to
hazardous wastes during storage, EPA
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Federal Register/Vol. 64, No. 39, Monday, March 1. 1999/Proposed Rules
will also be reviewing the licensing
system of NRC and Agreement States for
other generators of mixed waste (e.g.,
hospitals, pharmaceutical companies,
and research laboratories).
EPA Compliance Review
EPA is reviewing compliance records
related to NRC radiation controls for
nuclear power plants and other
licensees, to determine if there are
releases or mismanagement of LLW. If
this review finds that these facilities are
managing LLW safely (that is avoiding
releases by complying with regulatory,
licensing provisions and tie-down
conditions2) such findings may support
the protective nature of NRC's
regulatory and licensing framework
concerning the generation, storage, and
treatment of LLW. This review will be
available in the RCRA docket with the
Federal Register publication of the
proposed rulemaking planned for
October 1999.
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 2120 L
Street, NW, Lower Level, Washington,
DC 20037 (202-634-3273 or 800-397-
4209. Monday through Friday, 8:30 am
to 4:15 pm) or by visiting NRC's Internet
web page at http://www.nrc.gov.
5. Possible Conditions
EPA would base any conditional
exemption for commercial MLLW on a
finding that mismanagement of the
hazardous constituents in the waste
would be improbable, given compliance
With NRC standards. In connection with
this finding, EPA might impose specific
conditions under RCRA authority to
insure protectiveness and enforceability
of the exemption. This was the
approach EPA took in the military
munitions rule. Examples of possible,;.
conditions include:
(1) The facility generating MLLW has
a valid NRC or NRC Agreement State
license,
(2) The waste is stored in a tank,
container, or containment building.
(3) The facility stores its MLLW on-
site in accordance with the NRC license
requirements.
(4) The facility is subject to periodic
NRC or NRC Agreement State
inspections.
(5) Chemically incompatible wastes
are not stored near each other..
^Tie-down conditions Include guidance
documents and policies concerning storage and
treatment of LLW which become part of the license
by reference.
(6) The facility notifies EPA of any
storage unit for which it claims a
conditional exemption (discussed later
in this ANPR).
(7) The owner/operator reports any
violation of the conditions for the
exemption (discussed later in this
ANPR).
If a facility met these conditions
under a conditional exemption
approach, the wastes it generated would
be exempt from RCRA hazardous waste
requirements, such as RCRA permitting
and technical storage standards.
However, if the facility (or waste it
generated) fell out of compliance witty
one of the exemption conditions, its
waste would be regulated as hazardous.
(This approach is discussed more fully
later in the ANPR.)
The basic conditions for an exemption
would presumably apply to all options '
for regulatory flexibility covered in this
ANPR. In other words, the basic
conditions would apply to the
conditional exemption for stored mixed
waste described in section HA., the
approach for decay-in-storage contained
in section D.B., and on-site treatment
during storage discussed in section E.G.
EPA seeks comments on these or other
possible conditions. Commenters are
encouraged to address the
appropriateness of these conditions, and
other conditions that might be
appropriate. Commenters should also
provide their views on whether
conditions are needed at this level of
specificity, given adequate NRC
controls.
6. What Facilities Might Be Eligible?
EPA's focus in preparing this ANPR
has been on commercial MLLW
generated by the nuclear power
industry, based upon the April 1997
consent decree (described under section
VI.A.). EPA, however, encourages
comment on whether a conditional
exemption or similar approach should
apply to all generators of mixed waste
or be limited to specific industries, such
as nuclear power plants. EPA recognizes
that NRC exerts greater direct regulatory
control over nuclear power plants than
other sources. For example, NRC has a
Radiation Safety Officer and on-site
Resident Inspector at each operating
nuclear power plant. However, it may
be appropriate for a conditional
exemption to include all mixed low-
level waste generators because similar
safeguards may be imposed by their
NRC or NRC Agreement State licenses.
In addition, the decay-in-storage option
responds to specific problems ' ,
encountered by facilities that use short-
lived radionuclides and store this waste
on-site. (See ILB. below.)
EPA seeks comment on whether a
conditional exemption or other relief
should apply to commercial mixed
wastes stored at facilities that provide
storage services to mixed waste
generators with whom they contract and
by whom they are paid. Also, should an
exemption apply to mixed waste
generated at RCRA mixed waste
treatment facilities due to maintenance
operations or residues from treatment?
In summary, we encourage comment
on whether a conditional exemption or
similar approach should apply to: (1)
the nuclear power industry storing
waste on site, (2) other MLLW
generators such as hospitals,
laboratories, or pharmaceutical'
companies, (3) off-site facilities storing
commercial mixed waste, and (4) mixed
wastes generated during treatment or
maintenance activities at RCRA TSDFs
permitted to treat or dispose of mixed
waste. Later in this ANPR, EPA solicits
comments on extending RCRA relief to
treatment of mixed waste.
7. Would DOE Mixed Waste Be Eligible
for a Conditional Exemption?
Today's ANPR addresses only
commercial mixed waste regulated by
NRC or NRC Agreement states. It does
not cover DOE-managed mixed wastes.
EPA has limited the ANPR in this way
because it responds to a 1997 Consent
Decree (discussed later), in which EPA
promised to consider relief for facilities
managing commercial low-level mixed
wastes. DOE wastes lie outside the
scope of this decree.
B. Conditional Exemption for Decay-in-
Storage
The previous section of this ANPR
discussed the possibility of a RCRA
conditional exemption for mixed wastes
stored at generator sites under NRC
controls, including medical, research
and other facilities. Another approach
for these facilities might be based on
NRC's decay-in-storage requirements.
NRC generally allows research.
medical and other facilities to store low-
level wastes containing radionuclides
with half-lives of less1 than 65 days until
10 half-lives have elapsed and the
radiation emitted from the unshielded
surface of the waste (as measured vt ith
an appropriate survey instrumenc) is
indistinguishable from background
levels. This process is known as decay-
in-storage. Once the specified decay has
occurred, the waste may then be
disposed of as non-radioactive waste
after ensuring that all radioactive
material labels are rendered
unrecognizable (see 10 CFR 35 92)
Radioactive waste may also be deraved
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1
in storage under certain circumstances
in accordance with 10 CFR 20.2001.
Reduced Worker Exposure to Radiation
Decay-in-storage for LLW has a
limited storage time frame based on the
radionuclides (and half-lives) specified'
in the facility's NRC license. A RCRA
exemption for mixed wastes undergoing
decay-in-storage would address a major
concern of mixed waste generators
regarding overlapping RCRA and AEA
requirements for radionuclides of
relatively short duration. Such
management of LLW reduces or
eliminate worker exposures to
radionuclides in keeping with NRC's
ALARA (as low as reasonably
achievable) goal for worker radiation
exposures. EPA, at the request of several
universities and medical facilities, is
looking into decay-in-storage as a way of
reducing risk and regulatory • .-- •<
inefficiency in the management of
MLLW.
Matching License Requirements for
Storing Waste with Short Half-Lives
Under current RCRA requirements,
'persons generating hazardous waste
must obtain a RCRA permit if they store
wastes on site for more than 90 days.
The flexibility EPA is considering may
include RCRA requirements governing
time in storage and the necessity of
having a RCRA storage permit for
certain generators. The generators
include universities, hospitals,
laboratories, and research operations
who use short-lived radionuclides and
generate MLLW that is subject to NRC
and EPA oversight. We may allow these
generators to store MLLW on-site in
accordance with their NRC licenses, and
without a RCRA storage permit, for the
purpose of decay-in-storage where this
practice is approved for LLW under-the
facility's NRC or Agreement State
license. Such flexibility would allow:
storage of relative short-lived,;-; *•.-. <:..
radionuclides during,a decay period;? * v:
currently allowable underNRC-ji w#
regulations (see 10 CFR 35192 ahttlG^-'^-
CFR 20.2001) without a RCRA storage >
permit. • •""- .
How Long Might an Exemption B&VaUct
During Stored Decay?
EPA might allow an exemption for; ,
decay-in-storage to be valid as long as .
the mixed waste: (1) remains on-site and
(2) is subject to NRC regulation. EPA
notes that, under a decay-in-storage
conditional exemption, a MLLW is no
longer subject to NRC licensing
requirements when the radioactive
portion of the waste has decayed to the
level described in the NRC or NRC
Agreement State license. At that point
the waste no longer needs to be
managed as a radioactive waste under
the provisions of the license, and would
be subject to the applicable provisions
of Subtitle C of RCRA. Once the waste
is subject only to the RCRA regulations
(because the decayed waste still exhibits
a RCRA hazardous waste characteristic,
or is a listed hazardous waste), then
shipment off-site for treatment, if
needed, and disposal at a Subtitle C
facility would be required. Under this
exemption, RCRA time lines and other
requirements (found at 40 CFR part 262)
would begin when decay requirements
in the NRC or Agreement State license
are met. We seek general comment on,
this idea and on how to assure that *
waste is treated and/or disposed within
the time frames required by RCRA
following decay.
C. Can I Treat Waste During Storage?
EPA also is considering exempting the
on-site treatment of MLLW from
Subtitle C regulation under the
conditions listed above. An additional
condition might be that the waste is
treated on-site and is physically/
chemically treated in a tank, container,
or containment building in accordance
with the generator's NRC license
requirements. The logic behind this
approach would be, in part, that EPA's
regulations governing storage and
treatment in tanks, containers, and
containment buildings are generally the
same. Thus, if NRC controls were
sufficient for storage, it's likely they
would also be sufficient for treatment.
On the other hand, more specific control
might be appropriate for some, forms of
treatment, such as thermal treatment,
because of concerns for air emissions
and the specificity of RCRA i
requirements in this area.
We request comment on treatment of
mixed waste under a conditional
exemption, and while the mixed waste
. is subject to the specific NRC licensing
requirements for the management of
LLW. EPA requests comment on the
degree to which NRC regulation of the
treatment of LLW will protect against
risks from hazardous waste treatment,
and the added necessity of RCRA
Subtitle C regulation for treatment of
MLLW. :
ffl. Implementation
A. Enforcement and Notification
The NRC has in place a "General
Statement of Policy and Procedure for
NRC Enforcement Actions" (NUREG—
1600) which states the Commission's
policy regarding enforcement. This
policy provides significant
consequences for violating NRC or
license requirements and takes into
consideration the specific circumstances
of a particular case. If a nuclear power
plant is found to have violated the NRC
license, or tie-down conditions of the
license, the license (and responsible
person) may be subject to substantial
civil and criminal penalties. Based on
these provisions, licensed facilities have
incentives to manage stored waste
safely.
If we adopt a conditional exemption
approach for mixed waste as we did in
the Munitions Rule, we might adopt a
similar enforcement approach. In this
case, we would consider non-compliant
facilities to be subject to RCRA Subtitle
C from the time of non-compliance.
Utilities or other mixed waste generators
that claimed the conditional exemption,
but failed to store and/or treat the
MLLW in compliance with the
provisions of the exemption, would no
longer be exempt from the applicable
provisions of RCRA. The facility could
then be subject to enforcement action
(or citizen suit) for violations of RCRA
storage or treatment requirements.
Alternatively, EPA might consider a less
detailed approach, which didn't tie the
conditional exemption to compliance
with NRC standards. Instead, the
exemption might be restricted to
commercial MLLW regulated by NRC or
Agreement States, and managed under
basic conditions (e.g.. managed in tanks
or containers). In this case, releases or
storage in non-tanks or containers
would be enforceable under RCRA. but
EPA would rely on NRC and the
Agreement State for direct enforcement
of the licenses. This approach would
significantly simplify implementation.
but would provide less direct EPA
enforcement. EPA might choose an
approach along these lines if it is
convinced that NRC oversight of the
low-level radioactive waste is sufficient
to ensure against'mismanagement of
hazardous constituents in mixed wastes.
without independent EPA oversight,
We are seeking comment on both of
these approaches as well as alternative
implementation and enforcement
approaches.
Reporting Requirement
To determine if a unit used to wore
MLLW is in compliance with the terms
of the exemption, we are coraidertnjj
including a reporting requirement 43 a
condition of the exemption, if we were
to adopt an approach comparable to that
in the Military Munitions Rule «,«•
might require the owner or operator to
provide oral notice to EPA within 24
hours of the time when he or *n*
becomes aware of a failure to meet a
condition of the NRC license *» a rrUtes
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to the on-site storage and/or treatment of
MLLW that may endanger human health
or the environment with respect to the
hazardous components of the waste.
The owner/operator would provide a
written notice of any failure to meet a
condition for the exemption within 5
days of such failure. The owner/
operator would be required to provide a •
written report to NRC, with a copy to
EPA. pursuant to the reporting
requirements outlined in 10 CFR part 20
Subpart M. As in the munitions rule, we
could allow the owner or operator to
request in writing that EPA reestablish
the conditional exemption once the
facility's waste management practices
return to compliance with all conditions
of the exemption. Under the munitions
rule, reinstatement is automatic if EPA
does not respond negatively. EPA
. requests comment on this approach,
including whether reinstatement should
be automatic.
If EPA takes a broad approach to a
conditional exemption, as described in
II-A. reporting requirements as well as
notification requirements discussed
below might be simplified.
Notification of Conditional Exemption
for a Unit
Finally, to enable us to know which
wastes and which storage units are
subject to oversight under a conditional
exemption, we are considering requiring
the owner or operator to notify us
within the first 90 days when a storage
and/or treatment unit is used to store or
treat MLLW and a conditional
exemption is claimed for that unit. (See
list of conditions under n.A.5.) This
notification is similar to the provisions
of the munitions rule (see 40 CFR
266.205).
B. Future Amendments to NRC
Regulations
NRC has extensive experience
regulating radiation safety hazards,
which directly affect not only, the public'
but also workers stationed at every
nuclear power facility. EPA Is working
closely with NRC In developing the-
approaches discussed In today's ANPR.
EPA recognizes that NRC license
requirements or regulations may change
over time. EPA will continue to
coordinate with NRC to implement
these approaches, and NRC can notify
EPA as changes to the storage and
treatment requirements are considered,
so that the EPA can make any
modifications to the conditional
exemption necessary to ensure the
continued protection of human health
and the envirqnment. We are interested
In your views on what impacts future
amendments to NRC regulations may
have on any conditional exemption EPA
may propose.
C. Request for Public Comment
We are requesting public comments
regarding the suitability of the above
approaches for providing regulatory
flexibility under RCRA to the nuclear
power industry and other facilities
which generate, store, and/or treat
MLLW on site in accordance with their
NRC licenses. We are also seeking
comment regarding the ramifications of
the options on (1) the protection of
human health and the environment and
(2) the degree to which the options are
useful to the regulated community. ERA
also requests comment on alternative "
ideas regarding managing mixed waste
under RCRA.
IV. Information Needs
In preparation for conducting the
technical analyses and associated
regulatory analyses (such as the
required analyses of economic costs and
benefits and of impacts on small
businesses and government entities) for
the upcoming mixed waste management
rule, we are requesting data from NRC
Agreement States and licensed
commercial mixed waste generators
other than nuclear power plants. We are
interested in obtaining data on mixed
waste generation and management
practices for the following:
• Industrial—manufacturing facilities
(both small quantity and large quantity
generators);
• Industrial—research and
development facilities;
• Industrial sealed source users;
• Other industrial facilities;
• Academic institutions (both large
and small quantity generators);
• Medical facilities (colleges and
hospitals);
• Medical research facilities;
• Federal research and development
facilities (other than' DOE. which has
been providing data as a part of the
rulemaking effort); and
• Other non-defense, non-nuclear
power plant facilities.
We are requesting data from facilities
other than nuclear power plants, in
order to address gaps in the available
data. However. EPA also encourages
nuclear power plants to provide data
and comments that will inform the
regulatory process.
We have been reviewing information
on the generation and management of
MLLW in the commercial sector under
current regulations using two primary
sources of data on commercial
generation and management practices.
The first is a database developed by the
Edison Electric Institute from a survey
of nuclear power plants in 1997. The
second is a database developed for the
National Profile on Commercially
Generated Low-Level Radioactive Mixed
Waste (NUREG/CR 5938), a survey of
commercial generators jointly sponsored
by NRC and EPA that was published in
December 1992. Both of these data
sources contain valuable information
concerning the generation and
management of MLLW. They are
available in the docket.
To supplement currently available
data, we are requesting generators of
mixed waste to provide the following
types of information:
• MLLW Generation and
Management: The Agency requests
information for individual waste types
or categories of waste on current MLLW
generation rates and storage, treatment,
and disposal practices that can be used
to update the data from the 1992
National Profile. Data on types of mixed
waste generated, RCRA codes,
hazardous constituents and
concentrations, storage and treatment
techniques, and disposal practices
associated with individual waste
streams or waste categories would be
particularly useful, as would data on
waste volumes at the point of generation
and after treatment.
• MLLW Cost Data: The agency
requests information on the costs
associated with the management of
MLLW, including storage costs; costs of
sampling and analysis for compliance
with RCRA requirements, including the
universal treatment standards (UTS);
pre-treatment and treatment costs (by
method); packaging and transport costs;
disposal costs; and reporting and
recordkeeping costs. Because under an
RCRA exemption, generators could
manage MLLW in the same manner as
LLW, the Agency seeks data on LLW
management costs as well.
• Impacts of Exemption: The Agency
requests comments and/or data on the
potential effects of RCRA exemptions
for MLLW (e.g., impacts on future waste
management capacity, waste
management practices, and waste
minimization) that are important to
parties potentially affected by the mixed
waste rule.
We request that you indicate the units
of reference for all data (including time).
We would appreciate the reporting of
liquid volume in gallons; the mass of
solids in kilograms; the radioactivity of
individual radioisotopes in millicunes;
the concentration of RCRA hazardous
constituents in milligrams/kilogram (for
solids) and milligrams/liter (for liquids):
and the concentration of radionuclides
in picocuries/gram (for solids) and
picocuries/liter (for liquids)
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1QQ69
Lastly, we request information on the
effect of a conditional exemption for
commercial MLLW generators who
qualify as "small entities" (i.e.,
businesses, governments, or
organizations) for purposes of the
Regulatory Flexibility and Small
Business Regulatory Enforcement
Fairness Acts. The Small Business
Administration's definition of small
business, which varies by Standard
Industrial Classification code, can be
found at 13 CFR 121.201 or on the
Internet (http://www.sbaonline.sba.gov/
gopher/Financial-Assistance/Size-
Standards). A small government is
defined as a government of a city,
county, town, school district, or special
district with a population of less than
50,000. A small organization is defined
as any not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field. Generators
of MLLW are encouraged to comment
on potential impacts specific to small
entities that may result from increased
RCRA flexibility for MLLW
management.
V. Facts and Historical Background
A. What Is Mixed Waste?
Mixed waste is radioactive hazardous
waste. In 1976, the Resource
Conservation and Recovery Act (RCRA)
authorized EPA to regulate hazardous
waste from "cradle to grave." This
includes the minimization, generation,
transportation, treatment, storage, and
disposal of hazardous waste. The
definition of solid waste in the RCRA
legislation specifically excludes source,
special nuclear, or byproduct material
as defined by the Atomic Energy Act of
1954, as amended. In the 1984
Hazardous Solid Waste Amendments to
RCRA (HSWA). Congress established
land disposal restrictions (LDR) for
hazardous waste and directed EPA'tev-fc
establish treatment standards for- -: ;H
hazardous waste. Hazardous waste was::*
prohibited from land disposal unless
treated to EPA established standards. In
1986. EPA published a notice clarifying
RCRA jurisdiction for mixed waste and
indicated that States must include
mixed waste in RCRA base
authorization (51 FR 24504; July 3,
1986). EPA also published a notice (53
FR 37045; September 23, 1988)
clarifying that existing facilities that
treat, store or dispose of mixed waste
had to obtain interim status pursuant ta
Subtitle C of RCRA and that generators
of mixed waste were to notify EPA,
Congress provided further clarification
of mixed waste in the Federal Facilities
Compliance Act.3 Information on mixed
waste can be found at the website
address: http://www.epa.gov/radiation/
mixed-waste.
Mixed waste is regulated under
multiple authorities: by RCRA, as
implemented by EPA or authorized
states for the hazardous waste
components; and by the Atomic Energy
Act of 1954, as amended (AEA), for
radiological components as
implemented by either the Department
of Energy4 (for radioactive waste
generated by DOE), or the Nuclear
Regulatory Commission (NRC) or its
Agreement States (for all other mixed,
waste). ,
Commercial mixed waste generators;
particularly nuclear power plants, have
raised the concern that AEA and RCRA
requirements for mixed waste overlap,
and compliance with both is overly
burdensome. The nuclear power
industry has provided information
which supports their view that
radioactive waste disposal facilities
designed and licensed according to the
AEA offer human health and ;
environmental protection similar to that
required by RCRA.
B. Where Is Mixed Waste Generated?
Mixed low-level radioactive waste
(MLLW) is generated in all 50 states and
the District of Columbia at nuclear
power plants, fuel cycle facilities,
pharmaceutical companies, medical and
research laboratories, universities and
academic institutions, and other
facilities. Wastes that are both1
radioactive and hazardous are generated
as a result of a number of processes such
as medical diagnostic testing and
research, pharmaceutical and
biotechnology development, and
generation of nuclear power. The
National Profile indicated
approximately 3,950 m3 of MLLW was
generated in the U.S. in 1990. Of this
amount, approximately 2,840 rn3 (nearly
• 72%) was liquid scintillation counting
fluid. Organic solvents,
3The Federal Facilities Compliance Act (FFCA)
of 1992, defined mixed waste as a waste that
contains both hazardous waste subject to the
requirements of the RCRA and source, special
nuclear, or byproduct material subject to the
requirements of the Atomic Energy Act of 1954, as
amended. In addition, the FFCA required that for
each facility at which DOE generates or stores
•mixed waste DOE was to develop a plan for
developing treatment capacities and technologies to
treat all of the facility's mixed wastes. Such plan
had to be submitted to and approved by khe State
or EPA regulator, and incorporated into an order
Issued by the regulator requiring compliance with
the approved plan.
4 The Department of Energy (DOE) referred to ih
this ANPR Includes DOE facilities and faculties
operated by the Naval Nuclear Propulsion Program
(NNPP), which is a joint program of DOE and the
Department of the Navy. i
chlorofluorocarbons, waste oil, and
aqueous corrosives, made up 17%, toxic
metals made up 3%, and "other" waste
made up 8%.
The Edison Electric Institute, based
on a 1997 survey of nuclear power
plants, reports that the volume of
MLLW currently being generated by the
nuclear utility industry has been
substantially reduced from 1990 levels
due to waste minimization practices
being followed by the generators. Legacy
MLLW has also been reduced due to
limited treatment technology
development: Based on the Mixed Waste
Treatment Study prepared for the
Electric Power Research Institute
(December 1995), EPA understands that
for nuclear utilities there are still a few
mixed wastes for which treatment
technologies or disposal facilities may
not be commercially available. Wastes.
such as freon still bottoms, lead paint
chips and sludge, are being indefinitely
stored due to the lack of treatment and
disposal facilities. A limited number of
EPA site visits to hospitals and
universities in 1998 found a small
number of mixed wastes that could not
be treated with technologies that are
commercially available at this time. In
addition, industry groups such as the
American Chemical Society, and the
International Isotope Society, have
discussed with EPA representatives on
several occasions their continued
difficulty finding suitable treatment
and/or disposal for some of the mixed
wastes they generate despite
considerable efforts to minimize waste
generation in general and mixed waste
generation in particular. They also cite
very high costs for the treatment and
disposal which is available. (See also
the discussion of our policy of lowered
enforcement priority for mixed waste
later in this ANPR.)
C. Applicability of NRC Regulations
NRC's mission, under the Atomic
Energy Act of 1954, as amended (AEA).
is to regulate the Nation's civilian use of
byproduct, source, and special nuclear
materials to ensure adequate protection
of public health and safety, to promote
the common defense'and security, and
to protect the environment. The NRC's
scope of responsibility includes
regulation of commercial nuclear power
plants; research, test, and training
reactors; fuel cycle facilities; medical.
academic, and industrial uses of nuclear
materials; and the transport (along with
the Department of Transportation).
storage, and disposal of nuclear
materials and wastes. NRC is authorized
by the AEA to issue licenses to
commercial users of source, special
nuclear and byproduct radioactiv*
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Federal Register/Vol. 64, No. 39, Monday, March 1, 1999 /Proposed Rules
materials and to regulate federal
facilities other than DOE and Naval
Nuclear Propulsion Program facilities.
Thirty states have signed agreements
with NRC enabling the various
Agreement States to regulate source,
byproduct, and small quantities of
special nuclear material within their
boundaries. Facilities located in
agreement States are subject to
regulatory requirements for radioactive
material that are authorized by state
law. This applies to all source, special
nuclear, and byproduct material except
that from utilization facilities and fuel
cycle facilities, which are subject to
NEC's requirements, and DOE facilities,
which are subject to DOE Orders. While
Agreement States are required to adopt
programs that are adequate to protect
public health and safety and compatible
with the NRC program, Agreement
States may also adopt some
requirements that are more stringent
than the comparable Federal NRC
requirements. NRC conducts periodic
reviews of Agreement State programs to
assure that those programs remain
adequate to protect public health and
safety and compatible with NRC's
program. NRC retains authority over
production and utilization facilities and
other activities in Agreement States
specified by section 274 (c) of the AEA.
A large portion of the radioactive
mixed waste generated by medical and
biomedical research institutions
contains radionuclides with relatively
short half-lives. These short-lived
radionuclides are especially prevalent
in the combustible dry wastes, and
aqueous wastes generated by medical
and academic institutions. Currently
NRC generally allows medical facilities
to store for decay. For example,
generators may store waste containing
radipnuclides with half-lives of less
than 65 days until the radiation emitted
from the unshielded surface of the
waste, as measured with an appropriate:
survey instrument meets the decay-
levels described in their NRC license
(typically 10 half-lives of decay and
radioactivity levels indistinguishable
from background levels). The waste may
then be disposed as a non-radioactive-
waste after ensuring that all radioactive
material labels are rendered
unrecognizable (10 CFR 35.92}.
Radioactive waste may also be stored for
d.ecay under certain other circumstances
in accordance with 10 CFR 20.2001.
Such management can reduce worker
exposure and potential risks to the
public during transportation of the
waste.
Generators of mixed waste are subject
to both RCRA and AEA requirements.
Generators of mixed waste must obtain
a license from NRC or an NRC
Agreement State for possession and use
of radioactive materials, and may need
a RCRA permit depending on the time
waste is stored and the volume of waste
generated. Some bf the mixed waste
generated by private entities and
govemment-for example, wastes with
radionuclide concentrations exceeding
the acceptance criteria of commercial
sector treatment and disposal facilities-
is (and has been) stored on-site
indefinitely.
D. EPA Receipt ofRulemaking Petition
Because there is limited treatment ,
technology and disposal capacity for
some mixed waste, NRC licensees who
generate mixed waste may be forced t6
store some of their mixed waste on site.
On-site storage of mixed waste can
subject the NRC licensees to RCRA
permit requirements for storage
facilities. In response to this, the Utility
Solid Waste Activities Group (USWAG),
a national organization of power
companies, petitioned the U.S. EPA on
January 13, 1992. USWAG requested
that EPA "(1) amend 40 CFR 261.5 to
establish a separate mixed waste small
quality generator exemption for Nuclear
Regulatory Commission ('NRC')
licensees, and to make such rule
immediately effective as an interim final
rule, and (2) amend 40 CFR 262.34 to
allow NRC licensees to accumulate such
waste on-site in qualified tanks or
containers until such time as adequate,
fully licensed and permitted off-site
treatment, storage or disposal capacity
becomes available; to clarify that such
on-site storage, which is compelled by
the current lack of licensed treatment or
disposal capacity, is legitimate storage
under the land disposal restriction
('LDR') storage prohibition at 40 CFR
268.50; and to make such rule
immediately effective as an interim final
rule." While the approach in the
petition differs from the approach in
this ANPR, EPA seeks comment on the
USWAG approach described above.
The Edison Electric Institute also
approached EPA requesting relief from
permit requirements for the storage of
mixed wastes. The nuclear power
industry maintains that NRC
management requirements for the
radioactive component of their mixed
waste streams provide complete
protection for human health and the
environment. NRC requirements for
radioactive waste storage areas include
security, frequent monitoring, primary
containment, secondary containment for
liquids, and cover for protection from
the elements. EPA is studying NRC
requirements for low-level radioactive
waste storage to determine whether the
mixed waste storage under NRC (or
Agreement State) regulations, license
provisions, and guidance may be as
protective of human health and the
environment as the RCRA requirements
for storage of hazardous waste.
E. Policy of Lower Enforcement Priority
for Mixed Waste
EPA LDR treatment standards exist for
the hazardous components of most
mixed wastes. However, adequate
treatment technology or disposal
capacity does not exist for some mixed
waste streams, necessitating storage in
violation of land disposal restrictions.
Recognizing this difficulty, EPA issued
a policy on the lower priority of
enforcement of the storage prohibition
contained in section 3004 (j) of RCRA
(see 56 FR 42730; August 29, 1991).
Section 3004 (j) prohibits storage of a
land disposal restricted waste
(Including mixed waste) except for the
purposes of the accumulation of such
quantities of hazardous waste as are
necessary to facilitate proper recovery.
treatment, or disposal. Because
treatment technology or disposal
capacity was still unavailable for some
mixed wastes, EPA extended this policy
on October 31, 1998. The policy stated
that violators who were faced with an
impossibility of complying with the
RCRA regulations and were storing their
wastes in an environmentally
responsible manner would be a low
enforcement priority for EPA. The
extension of the policy was published in
the Federal Register on November 6.
1998. (63 FR 59989)
The policy affects only mixed wastes
that are prohibited from land disposal
under the RCRA Land Disposal
Restrictions and for which there are no
available options for treatment or
disposal. For mixed waste generators
who are storing mixed wastes in an
environmentally responsible manner, as
described in the policy, and where no
viable treatment technology or disposal
capacity exists, or becomes available
during this extension, we consider
violations of RCRA section 30040)
involving relatively small volumes of
waste to be a low priority among our
potential civil enforcement actions. An
enforcement activity arising from
violations of section 3004 (j) as 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. EPA recently
extended the policy of lowered
enforcement priority to April 30. 2001.
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10071
VI. What Regulatory Efforts Affecting
Mixed Waste Are Underway at EPA?
We recognize that mixed waste
storage and disposal may be
significantly affected by other EPA
rulemakings, especially the Hazardous
Waste Identification Rule (HWIR). These
activities will be closely monitored for
impacts to a mixed waste storage and-
disposal rulemaking, for areas of
overlapping analysis, and for
opportunities to coordinate.
A. April 1997 Consent Decree and
Mixed Waste Rulemaking Commitment
Commercial nuclear power plants
through their trade organizations (i.e.,
the Edison Electric Institute, the Utility
Solid Waste Activity Group, and the
Nuclear Energy Institute) were parties to
the settlement discussions regarding the
deadline for the final Hazardous Waste _
Identification Rule (HWIR) Rulemaking, *
ETCv. Browner, CIV, No. 94-2119
(D.D.C.), During negotiations, they
expressed their interest in regulatory
flexibility to allow the disposal of mixed
waste in commercial low-level
radioactive waste disposal sites. There
discussions resulted in a final consent
decree which requires EPA to publish a
proposed rule that requests comment on
an exemption from hazardous waste
disposal regulation for mixed wastes
from nuclear power plants. The
proposal must also request comment on
other regulatory relief for these wastes.
if EPA finds that any other relief would
be appropriate. EPA is also committed
to make "best efforts" to describe the
exemptions In enough detail to allow it
to promulgate a final rule. The decree
requires EPA to issue the proposal by
OctoberSl, 1999.
EPA made several commitments to
the-litigants in a "sidebar" letter which
was not submitted to the Court. EPA
committed to issue a final rules
addressing relief for mixedlwastes front ^:
nuclear power plants by;April 30;; 20015!
EPA also agreed to recommendiirKa*-•?;..*>
writing to EPA Regions, and;RCR/&> £
authorized States tfiat;"they suspend the:
call-in or processing of final RGRAPiarti
B permits at power plants subject tov,
regulation under the AEA by NRG or -
NRC Agreement States where the only
reason fora Part B permit is the on-site
storage of mixed waste..." Such a letter
to States and Regions was signed on
May 21,1997. In the letter EPA's Office
of Solid Waste (OSW) recommended the
temporary suspension of call-in and:
processing of RCRA Part B applications,
and the issuance of RCRA permits for
facilities that have interim status only
for the purpose of on-site storage of
commercial and mixed wastes. This
permit suspension applies where the
facility is not otherwise subject to RCRA
permitting requirements. OSW did not
recommend any suspension for facilities
where Regions or States find a particular
environmental concern that merits the
call-in issuance of such a permit.
EPA also committed in the side-bar
letter to examining potential regulatory
change related to the disposal of mixed
waste in radioactive waste disposal
facilities subject to NRC regulation. (A
summary of disposal issues follows.)
EPA is considering regulatory flexibility
by examining opportunities related to
mixed waste permitting and storage. In
today's ANPR we are seeking comment
from interested parties on mixed waste
storage options. The Octoberl999 f
Proposed Rulemaking on mixed waste
will address disposal and storage issues.
B. Summary or Approach for Mixed
Waste Disposal
We are considering a regulatory
exemption from the RCRA hazardous
waste disposal requirements for low-
level radioactive mixed wastes
containing low concentrations of RCRA
hazardous constituents which may be
disposed at low-level radioactive waste
disposal facilities. We will determine
whether the disposal of mixed waste in
facilities designed to address
radiological hazards under the AEA and
regulated by NRC will provide adequate
protection of human health and the
environment from chemical hazards. We
may propose that these mixed wastes
would not be regulated as hazardous
waste if disposed at radioactive waste
disposal facilities subject to NRC or
NRC Agreement State requirements. We
are formulating the scope and form of •
such a proposal.
C. Hazardous Waste Identification
Rulemaking (HWIR) '.
The goal of HWIR is to develop a set
of chemical concentration levels ("exit
L levels") below which a list waste would
no longer be regulated as a hazardous
waste. In addition to the proposed exit
levels, the HWIR reproposal will seek
comment on a variety of
implementation requirements, including
testing, notification, record keeping and
reporting and public participation.
RCRA s hazardous waste program
sometimes regulates comparatively low
risk waste at the same stringent
standards as higher risk waste. This
system leaves companies little incentive
to detoxify there list hazardous wastes,
since the wastes continue to be
regulated as hazardous, unless formally
delisted. WHIR relies on an innovative
risk assessment to identify the levels of
hazardous chemicals in waste that can
be safely disposed in a non-hazardous
unit. HWIR will propose exit levels
which allow waste management based
on the risks posed by the waste. Thus
the HWIR proposed focuses resources
.on risk reduction and encourages
pollution prevention and development
of treatment technologies. HWIR is
scheduled to be proposed by October
31, 1999 and finalized by April 30
2001.
D. Waste Management Proposal by
EPA's Office of Radiation'and Indoor
AirfORIA)
Under the AEA, EPA has authority to
establish generally applicable radiation
standards. ORIA is developing a
proposal under the AEA that would
apply to disposal of mixed wastes with
very low concentrations of
radionuclides in RCRA Subtitle C
hazardous waste landfills. Under this
approach, EPA would establish
maximum concentration limits for
radionuclides in mixed waste allowed
for disposal in such facilities.
Radionuclides would continue to be
regulated under the AEA; EPA would
seek to have the Nuclear Regulatory
Commission regulate mixed waste in
RCRA facilities through a simplified
license based on the requirements for
low-level radioactive waste disposal
facilities in 10 CFR part 61. RCRA
disposal facilities that wish to accept
mixed waste under this rule would need
to obtain such a license from the NRC.
This proposed rulemaking is planned
for publication in the Federal Register
in 1999.
VII. Regulatory Assessment
Requirements
A. Executive Order (E.O.) 12866
Under Executive Order 12866. |58 FR
51735 (October 4, 1993)] the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule tiiat may: (1) have an
annual effect on the economy of $ 100
million or more or adversely affect In a
material way the economy, a sector of
the economy, productivity, competition.
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities. (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency: (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or die rights and obligations of
recipients thereof; or (4) raise novel
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legal or policy issues arising out of legal
mandates, the President's priorities, or
the principles set forth in the Executive
Order.
While this advance notice of proposed
rulemaking establishes no regulatory
requirements it could ultimately result
in a rule that would satisfy one or more
of the above criteria. Therefore, this
action is a "significant regulatory
action" under the terms of Executive
Order (E.Q.) 12866. As such, this action
was submitted to OMB for review.
Changes made in response to OMB
suggestions or recommendations will be
documented in the public record.
Under the terms of E.O. 12866, EPA
is to prepare for any significant
regulatory action an assessment of its
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. Because the
purpose of this ANPR is to initiate a
structured national debate on a broad
set of Issues rather than to proposed
specific regulatory changes, it is not
feasible to quantify the costs and
benefits or any resulting regulations at
this time. The Agency is aware,
however, that his ANPR could lead to
regulatory action for which the
preparation of a quantitative assessment
of costs and benefits would be
appropriate. The Agency is thus
requesting comment on the costs and
benefits of any of the possible regulatory
changes discussed in this ANPR, as well
aspn appropriate methodologies for
assessing them. The Agency would be
interested in hearing from States and
Tribes. Members of the public and the
regulated community are also
encouraged to submit any data they may ,
have on the costs and benefits of ,- • .
activities described in this ANPR. ,, r; "
B. Executive Order (E.O.) I2875i{ '•£•
Enhancing the Intergovernmental ' -
Partnership
Under Executive Order 12875, EPA
may not issue a regulation that is not
required by statute and that creates a
mandate upon a State, local or tribal
government, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by those governments. If
EPA complies by consulting. Executive
Order 12875 requires EPA to provide to
the Office of Management and Budget a
description of the extent of EPA's prior
consultation with representatives of
affected State, local and tribal
governments, the nature of their
concerns, copies of any written
communications from the governments,
and a statement supporting the need to
issue the regulation. In addition.
Executive Order 12875 requires EPA to
develop an effective process permitting
elected officials and other
representatives of State, local and tribal
governments "to provide meaningful
and timely input in the development of
regulatory proposals containing
significant unfunded mandates."
Today's ANPR does not create a
mandate on State, local or tribal '
governments. This ANPR does not :
impose any enforceable duties on these
entities. It solicits comments on
potential approaches to regulatory
flexibility. Accordingly, the
requirements of section 1 (a) of
Executive Order 12875 do not apply to
this ANPR.
C. Executive Order (E.O.) 13084:
Consultation with Indian Tribal
Governments
Under Executive Order 13084, EPA
may not issue a regulation that is not
required by statute, that significantiy 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. If EPA complies by
consulting. Executive Order 13084
requires EPA to provide to the Office of
Management and Budget, 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 permitting
elected 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." Today's-
ANPR does not significantly or uniquely
affect the communities of Indian tribal
governments because it does not impose
any enforceable duties on these entities.
This ANPR solicits voluntary comments
on potential approaches to regulatory
flexibility. Accordingly, the
requirements of section 3(b) of
Executive Order 13084 do not apply to
this ANPR.
D. Executive Order (E.O.) 13045:
Children's Health Protection
Executive Order 13045 applies to any
rule that EPA determines is (1)
"economically significant" as defined
under Executive Order 12866, and (2)
concerns an environmental health or
safety risk addressed by the rule has 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.
E.O. 13045 applies to notices of
proposed and final rulemakings,
therefore, it does not apply to this
advance notice of proposed rulemaking.
Should this advance notice of proposed
rulemaking result in a rulemaking
proposal, the Agency will evaluate the
proposal to determine if E.O. 13045
applies.
E. The Regulatory Flexibility Act (RFA)
as Amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996
Under the RFA, (5 U.S.C. 601 etseq.),
as amended by SBREFA, whenever an
agency is required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis (RFA) that describes
the effect of the regulatory action on
small entities. However, no regulatory
flexibility analysis is required if the
head of an Agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
SBREFA amended the RFA to require
Federal agencies to provide a statement
of the factual bases for certifying that a
rule will not have a significant
economic impact on a substantial
number of small entities. However,
since this requirement applies to
proposed rules only, and as this
Document is an ANPR, these
requirements do not apply.
F. Unfunded Mandates Reform Act
Tide n of the Unfunded Mandates
Reform Act of 1995 (UMRA), Pub.L.
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 generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
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Federal Register/Vol. 64, No. 39. Monday, March 1, 1999/Proposed Rules
10073
result in expenditures to State, local,
and tribal governments, in the aggregate?
or 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 section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 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 section 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 with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements. Today's
ANPR contains no Federal mandates
(under the regulatory provisions of Title
H of UMRA) for State, local, or tribal
governments or the private sector. The
ANPR also imposes no" enforceable duty
on any State, local or tribal governments
or the private sector.
G. National Technology Transfer and
Advancement Act of 1995
Section 12 (d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"); Pufck. 10-fc-i
113, section 12(d) (15 IJ.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 (e.g.,
material 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,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This ,
ANPR does not involve technical
standards. Therefore, EPA is not . :
considering the use of any voluntary •'
consensus standards. :
H. Paperwork Reduction Act
-• Under the implementing regulations
for the Paperwork Reduction Act, an
agency is required to certify that any
agency-sponsored collection of
information from the public is necessary
for the proper performance of its
functions, has practical utility, is not
unnecessarily duplicative of
information otherwise reasonably
accessible to the agency, and reduces to
the extent practicable and appropriate
the burden on those required {o 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 for approval
before it goes into effect.
Some of the approaches for regulatory
flexibility discussed in the ANPR could
entail new reporting and recordkeeping
requirements for States and Tribes and/.
or members of the regulated public if
such change is proposed. EPA is
interested in comments on any and all
aspects of potential paperwork
requirements, and in particular on how
they should be structured to fulfill the
requirements that they have practical
utility, are not unnecessarily duplicative
of other available information, and are
the least burdensome necessary to
ensure that the storage and treatment of
mixed waste is safely managed.
/. 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,
and all people live in clean and
sustainable communities. To address
this goal, EPA considered the impacts of
this final rule on low-income
populations and minority populations
and concluded that this ANPR will have
no impact whatsoever on low-income or
minority populations because it only
solicits voluntary comments on
potential approaches to regulatory
flexibility.
Dated: February 22, 1999.
Carol M. Browner,
Administrator, Environmental Protection
Agency.
[FR Doc. 99-4829 Filed 2-26-99: 8 45 am)
BILLING CODE 6S60-SO-M
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Federal J»«rict»r/Vr.I. 64. No. 10/Friday. January' 15. 1999/Notices
742Z99001
more information to ensure that
antidegradation requirements for water
quality will be met, to discuss project
impact to health ecosystem, and to
further address cumulative impacts of
this and other projects in the area.
ERP No. D-COE-L03008-AK Rating
EO2. Beaufort Sea Oil and Gas
Development Northstar Project,
'Implementation, NPDES Permit, Sea
Island. Alaskan Beaufort Sea, Offshore
Marine Environment and Onshore
Northslope of Alaskan Coastal Plain,
AK.
Summary: EPA expressed
environmental objections to the
proposed Northstar project which were
related to the risks of leaks and spills
associated with the use of undersea
pipelines in the Beaufort Sea, the
technological/logistical difficulties in
responding to oil spills, and the extent
to which issues and concerns of the
Inupiats Eskimoes have been addressed
in the development of the project and
the EIS. EPA believes that further
evaluation of double-walled undersea
pipeline option and the Northstar Oil
Discharges Prevention and Contingency
Plan is necessary, and that further
development of the project and EIS
should be conducted in consultation
with the Inupiats to ensure that their
issues are addressed in a manner
consistent with Executive Orders 12898
and 13084.
ERP No. D-FHW-G40151-TX Rating
LO, US-190 Corridor from FM2657 to
the East City Limits of Copperas Cove,
Transportation Improvements, Major
Investment Study, Coryell and
Lampasas Counties, TX.
Summary: EPA had no objection to
the selection of the preferred alternative,
Alternative G, as described in the draft
EIS.
ERP No. DA-COE-K32023-HI Rating
EO2, Ma'aLaea Harbor Improvements
for Light-Draft-Vessels, Entrance
Channel Realignment and Breakwater
Modification, Additional Information,
Island of Maui, Maui County, HI.
Summary: EPA expressed
environmental objections related to
water quality and Clean Water Act
Section 404 issues. The SDEIS showed
exceedances in water quality standards
for turbidity during construction and
'project operation due to increased
" turbulence caused by additional vessel
traffic from the 130 new berths. EPA
believes that the Corps should ensure
that there are mechanisms in place to
maintain EPA-approved Water Quality
Standards. EPA asked that the Corps'
final report to Congress on fiscal
authorization not proceed until there are
satisfactory assurances from the State
that onshore sewage improvements
would be put into place.
Final EISs
ERP No. F-AFS-K65272-CA, Chico
Genetic Resource Center for Pest
Management Program. Implementation,
Mendocino National Forest, Willow,
Butte County, CA.
Summary: Review of the Final EIS
was not deemed necessary. No formal ,
comment letter was sent to the
preparing agency.
ERP No. F-AFS-L65160-ID, North
Round Valley Timber Sales and Road
Construction, Implementation. Payette :
National Forest. New Meadows Ranger
District, Adams County, ID.
Summary: Review of the Final EIS
was not deemed necessary. No formal ,
comment letter was sent to the
preparing agency.
ERP No. F-FHW-E40761-NC, US 64 :
Bypass Transportation Improvements
Project, from 1-440 to US 64 west of
Wendell and Eastern Wake Expressway
from existing US 64 to NC-1007 fPoole
Road), Funding and COE Section 404
Permit, Wake County, NC.
Summary: EPA found the document ,
generally addressed the agency's
comments on the draft EIS. However,
lack of coordinated multi-modal
transportation planning was noted.
Dated: January 12,1999.
William D. Dickerson,
Director, NEPA Compliance Division, Office
of Federal Activities.
[FR Doc. 99-1017 Filed 1-14-99; 8:45 am]
BILLING CODE 6MO-SO-P
ENVIRONMENTAL PROTECTION
AGENCY
[OPPTS-00254; FRL-6041-61
Development of Voluntary Consensus
Standards for Environmentally
Preferable Goods and Services
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: In association with its efforts
to implement Presidential Executive
Order 12873, "Federal Acquisition,
Recycling and Waste Prevention," and
Executive Order 13101, "Greening the
Government Through Waste Prevention
Recycling and Federal Acquisition,"
EPA is .interested in working with non-
governmental standards developers to
promote the development of voluntary
consensus standards for
environmentally preferable goods and
services. EPA is seeking opinions and
comments on the availability of using
voluntary consensus standards to
implement the President's Order. The
purpose of this notice is to help EPA
determine the level of interest among
standards developers in the
development of environmental
attributes and associated voluntary
standards for specific product
categories. EPA is seeking comments
about what types of markets are most
suited to incorporation of
environmentally preferable products.
EPA also seeks to gather information on
the level of activity and expertise
already available through standard
setting" organizations for determining
environmental preferability in specific
product categories and comment on .
whether EPA should adopt those
standards.
DATES: Comments must be postmarked
by March 31,1999.
ADDRESSES: Each comment must bear
the docket control number "OPPTS-
00254." All comments should be sent in
triplicate to: OPPT Document Control
Officer (7407), Office of Pollution
Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW., Rm.
G-099, East Tower, Washington, DC
20460.
Comments and data may also be
submitted electronically to: oppt
ncic@epamail.epa.gov. Follow the
instructions under Unit n. of this
document. No Confidential Business
Information (CBI) should be submitted
through e-mail.
All comments which contain
information claimed as CBI must be
clearly marked as such. Three sanitized
copies of any comments containing
information claimed as CBI must also be
submitted and will be placed in the
public record for this action. Persons
submitting information on any portion
of which they believe is entitled to
treatment as CBI by EPA must assert a
business confidentiality claim in
accordance with 40 CFR 2.203(b) for
each such portion. This claim must be
made at the time that the information is
submitted to EPA. If a submitter does
not assert a confidentiality claim at the
time of submission, EPA will consider
this as a waiver of any confidentiality
claim and the information may be made
available to the public by EPA without
further notice to the submitter.
FOR FURTHER INFORMATION CONTACT:
Lena Ferris, Pollution Prevention
Division (7409), Office of Pollution
Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW..
Washington, DC 20450, Telephone:
(202) 260-2237, ore-mail:
ferris.lena@epa.gov
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Federal Register Vol. 64, No. 10/Friday. January 15. 1999.'Notices'
2641
SUPPLEMENTARY INFORMATION:
I. Background
EPA 1$ seeking general comments on
the issues mentioned In the
"SUMMARY" statement above. EPA is
particularly interested in comments
from persons who are already actively
involved in voluntary standards
development or if you are considering
establishing a program for developing
voluntary standards incorporating
environmental attributes for products or
services, please respond to the questions
addressed and send all information,
postmarked no later then March 31,
1999, to the docket listed under the
"ADDRESSES" section above. All
comments will be accepted and
considered.
To help EPA determine the level of
interest among standards developers in
the development of environmental
attributes and associated voluntary
standards for specific product categories
and services, please provide responses
to the following questions.
1, The name, address, and contact
information for the organization.
2. Does the organization develop
stuid&rds for specific business or
industry sectors, e.g., automotive,
telecommunications, etc., or does it
develop standards in all areas?
3, Does the organization operate
under procedures set forth by the
American National Standards Institute
(ANSI) or do you have other written
procedures that you use for standards
development? If available, please
provide a copy.
4. Does the organization currently
have, or plan to nave, standards
development activities focusing on, or
specifically integrating, environmental
attributes as part of the scope of the
standard(s)?
5, Does the organization do product
certification?
6. Does the organization typically
ongnge in product attribute development
as well as standards development? If so,
wh*t kinds of products are generally
involved?
7, Do members of government
departments or agencies participate in
your standards development activities?
If so, are there any members from
regulatory agencies or departments?
8, Has the organization done any
assessment of the market needs for
environmentally preferable products? If
so, and the information is available,
what is your assessment of product
categories and/or market sectors where
the interest is likely to be high for
environmentally related standards? .
II. Public Record and Electronic
Submissions
The official record for this action, as
well as the public version, has been
established for this action under docket
control number "OPPTS-00254 "
(including comments and data
submitted electronically as described
below). A public version of this record,
including printed, paper versions of
electronic comments, which does not
include any information claimed as CBI,
is available for inspection from 12 noon
to 4 p.m., Monday through Friday,
excluding legal holidays. The official
record is located in the TSCA
Nonconfidential Information Center,
Rm. NE-B607, 401 M St., SW.,
Washington. DC.
Electronic comments can be sent
directly to EPA at
oppt.ncic@epamaiLepa.gov
Electronic commeats must be
submitted as an ASCII file avoiding the
use of special characters and any form
of encryption. Comments and data will
also be accepted on disks in
WordPerfect 5,1/6.1 or ASCE file
format. All comments and data in
electronic form must be identified by
the docket control number "OPPTS-^
00254." Electronic comments on this
action may be filed online at many
Federal Depository Libraries.
List of Subjects
Environmental protection.
Dated: December 23,1998.
William H. Sanders, m
Director. Office of Pollution Prevention and
Toxics.
[FR Doc. 99-1027 Filed 1-14-99; 8:45 am)
MLUNQ CODE M60-SO-F
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-6220-7]
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) or Superfund, Section
104; Announcement of Proposal
Deadline for the Competition for the
1999 Browntlelds Cleanup Revolving
Loan Fund Pilots
AGENCY: Environmental Protection
Agency.
ACTION: Notice of proposal deadlines,
revised guidelines.
"SUMMARY: The United States
Environmental Protection Agency (EPA)
will begin to accept proposals for the
1999 Brownfields Cleanup Revolving
Loan Fund Pilots on January 15, 1999.
The brownfields cleanup revolving loan
fund pilots (each funded up to
5500,000) test cleanup and
redevelopment planning models, direct
special efforts toward removing
regulatory barriers without sacrificing
protectiveness. and facilitate
coordinated environmental cleanup and
redevelopment efforts at the federal.
state, and local levels. EPA expects to
select up to 63' additional brownfields
cleanup revolving loan fund pilots by
May 1999. The deadline for new
proposals for the 1999 brownfields
revolving loan fund pilots is March 8,
1999. Proposals must be postmarked by
March 8,1999, and sent to U.S. EPA
Headquarters. In addition, duplicate
copies of the proposal must also be
submitted to file appropriate U.S. EPA
Regional Office, ATTN: Brownfields
Coordinator.
The Brownfields Cleanup Revolving
Loan Fund pilot proposals are selected
on a competitive basis. To ensure a fair
selection process, evaluation panels
consisting of EPA Regional and
Headquarters staff and other federal
agency representatives will assess how
well the proposals meet the selection
criteria outlined in the newly revised
application booklet The Browrifields
Economic Redevelopment Initiative:
Proposal Guidelines for Brownfields
Cleanup Revolving Loan Fund 'January
1999).
DATES: This action is effective as of
January 15,1999. All proposals must be
postmarked or sent to U.S. EPA
Headquarters and a duplicate copy sent
to the appropriate U.S. EPA Regional
Office via registered or tracked mail no
later than March 8, 1999.
ADDRESSES: BCRLF guidelines can be
obtained by Calling the Superfund
Hotline at the following numbers:
Washington, DC Metro Area at 703-
412-9810, Outside Washington, DC
Metro at 1-800-424-9346, TDD for the
Hearing Impaired at 1-800-553-7672.
Copies of the Proposal Guidelines for
Brownfields Cleanup Revolving Loan
Fund are available via the Internet:
http://www.epa.gov/brownfields/ .
FOR FURTHER INFORMATION CONTACT: The
U.S. EPA's Office of Solid Waste and
Emergency Response, Outreach and
Special Projects Staff, Barbara Bassuener
(202) 260-9347 or Jennifer Millett (202)
260-6454.
SUPPLEMENTARY INFORMATION: The
Environmental Protection Agency's
(EPA) Brownfields Economic
Redevelopment Initiative is designed tc
empower states, local governments.
communities, and other stakeholders
involved in economic redevelopment to
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