vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: ?503.02(85)
TITLE: Regulation of "Mixed Wastes" at DOE Facilities
APPROVAL DATE: 8-30-85
EFFECTIVE DATE: 8-30-85
ORIGINATING OFFICE: office of solid waste
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SPECIAL PERMITTING UNIVERSE
DOC: 9503.02(35)
Key Words: -
Regulations:
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
"Mixed Wastes, Federal Facilities, Authorized States
Regulation of "Mixed Wastes" at DOE Facilities
James H. Scarbrough, Chief, Residuals Management Branch,
Waste Management Division, Region IV
John H. Skinner, Director, Office of Solid Waste
#9503.02(85)
8-30-85
This memo indicates that States are not authorized under RCRA to handle
mixed wastes because EPA has no interpretation on the radioactive waste exemp-
tion and therefore has no way to review State programs for equivalence.
The memo also explains which permitting authority DOE should submit its Part
Bs to, based on whether the facility handles mixed or RCRA only wastes.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG 3 0 7985
OFFICE OF —
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulation of "Mixed Wastes" at DOE Facilities
FROM: '_ John H. Skinner///'
Director //1 ; V.
Office of Solid Waste
TO: James H. Scarbrough
Chief, Residuals Management Branch
Waste Management Division, Region IV
The purpose of this memorandum is to respond to your
request for guidance on the ability of States and Regional
Offices to regulate "mixed wastes" (those wastes which have
both radioactive and hazardous characteristics, but which
are not "by-product" material) at DOE facilities.
The first issue is whether States are authorized to
handle mixed wastes. The answer is that they are not. A
State may of course regulate mixed waste pursuant to State
law, however, such regulation is not part of the authorized
State RCRA program. When a State applies for authoriza-
tion to operate its RCRA program, EPA reviews each portion
of its program to ensure that it is equivalent to the
Federa-1 requirement. Because EPA'had no interpretation or:
the radioactive waste exemption, there is no way that EPA
could have reviewed the State programs for equivalence.
When EPA publishes a Federal Register notice explaining •
its interpretation of the mixed waste issue, States will be
required to develop equivalent authority, or, if such
authority is already part of their hazardous waste program,
they will be required to certify (through the Attorney
General) that they are interpreting the radioactive waste
exemption in the same manner as EPA. I refer you back to
my May 1, 1985, memorandum on the applicability of RCRA to
DOE facilities for a more detailed discussion of this issue
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The next issue which you raise is whether DOE should
be sending Part B applications to various authorities
based on whether the facility handles mixed or RCRA-only
wastes. I understand your confusion on this issue and will
try to clarify it here.
For purposes of the wastes that are clearly under RCRA, the
answer here is no different than it is for any facility at this
stage of the RCRA program. Where a State is authorized for the
RCRA program, EPA and the States are currently involved in issuing
RCRA permits because of joint permitting under the Hazardous
and Solid Waste'Amendments of 1984 (HSWA). Therefore, a complete
RCRA permit application should be sent to both authorities.
For a discussion of this joint permitting process, see RCRA
Statutory Interpretation #5, dated July 1, 1985. Where EPA
operates the hazardous waste program, DOE should submit only
one application directly to EPA.
Both EPA and DOE have agreed that RCRA also applies to DOE
facilities handling certain mixed wastes. Permitting these
facilities is a bit more complicated. Where a State is authorized
it can issue RCRA permits only for RCRA wastes. If a State
also has authority under its own laws to regulate mixed waste,
the State portion of the permit will address that mixed waste
although this portion of the permit will not be part of the
RCRA permit. We recognize the limitations of this approach,
however, we simply do not have the authority to do otherwise;
the State's authorized program operates in Lieu of EPA's which
means that EPA cannot issue a RCRA permit covering those wastes
either. EPA has authority to directly conduct permit activities
in an authorized State only when the regulations governing that
activity derive from HSWA. ' The addition of mixed wastes to the
Federal universe of RCRA-regulated wastes is not pursuant to
HSWA. Therefore, EPA has no authority to permit such activity
in an authorized State. Until such time as the State is
specifically authorized for mixed wastes, EPA cannot enforce
any State permit conditions relating to such wastes.
Where the State is not authorized, EPA will be issuing
the permits for mixed waste and these permits will be RCRA
permits. The only remaining question, therefore, is how
to define mixed waste. Although we do not yet have a final
definition of mixed waste (due to remaining questions over
"by-product" material), we recommend that permits be issued
for those mixed wastes which DOE acknowledges are subject to
RCRA, based on waste stream analyses that were generated by
DOE at individual plants. They were reviewed by the EPA
technical workgroup addressing DOE issues and were determined
acceptable for use in permitting. You should be requesting
those documents from the specific DOE facilities which you
will be regulating. You should make sure that the documents
are the original studies that have not been revised since
EPA's review. Headquarters policy is that where you suspect a
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DOE facility is handling nonradioactive hazardous waste, you
should proceed with the Part B application unless and until you
are notified by the f-acility that it does not handle such wastes.
In additionf DOE controlled mixed waste as indicated in the waste
stream analyses j.£ subject to RCRA if such wastes are mixed with
RCRA waste after generation, e.g., where the waste is placed in
a RCRA site.
I have also included a copy of the staff level definition
of by-product material referred to in my May 10, 198^, memorandum
as per your request, however, please realize that it is still in
draft form. If you have any additional questions on this matter,
please feel free to call Andrea Pearl of our State Programs Branch
at FTS 382-2210.
Attachment
cc: Thomas W. Devine, Director, Waste Management Division,
Region IV .
RCRA Branch Chiefs, Regions I-X
State Programs Branch, OSW
Permits Branch, OSW
Fred Lindsey, OSW
Jon Perry, OSW
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