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
0 FINAL
D DRAFT
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               REFERENCE (other documents):
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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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                             -  2  -

      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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