v>EPA
             United States
             Environmental Protection
             Agency
          Office of
          Solid Waste and
          Emergency Response
DIRECTIVE NUMBER:  9541.08(84)
   ' Radioactive Waste Exemption In North and South Carolina

APPROVAL DATE: 9-13-84
EFFECTIVE DATE: 9-i3-84
ORIGINATING OFFICE:
0 FINAL
D DRAFT
 STATUS:

REFERENCE (other documents):
 OSWER     OSWER      OSWER
fE   DIRECTIVE   DIRECTIVE

-------
 PART 271  SUBPART A - FINAL AUTHORIZATION                     DOC:  9541.08(84)


 Key Words:    Radioactive Wastes, Equivalency

 Regulations:  40 CFR 261 Subparts C and D
              (
 Subject:      Radioactive Waste Exemption in North and South Carolina

 Addressee:    Charles R. Jeter, Regional Administrator, Region IV

 Originator:   Lee M. Thomas, Assistant Administrator

 Source Doc:   #9541.08(84)

 Date:         9-13-84

 Summary:

     Although State hazardous waste statutes exempt radioactive materials, the
 State can still receive final authorization based on the following:

     I)  There are three categories of radioactive wastes: source, special
 nucLear and by-product materials defined by the Atomic Energy Act (AEA) and
 excluded.from the definition of solid waste in RCRA and therefore not
 regulated by EPA or authorized States.

     2)  Mixed wastes — wastes which consist-of source, special nuclear, or
 by-product material and RCRA hazardous waste are regulated under RCRA.  EPA
 recently determined that RCRA authority extends to these mixed wastes and is
working with the Department of Energy to determine how best under RCRA and AEA
 to implement the authority.  States need not revise their programs to regulate
mixed wastes since EPA must resolve some definitional issues.  States, however,
may want to change their programs to obtain legal authority to regulate mixed
wastes.

     3)  Radioactive wastes outside of the source, special nuclear or by-product
universe such as naturally occurring radio-nuclides and accelerator-produced
 radioisotopes are hazardous if they are listed in 40 CFR Part 261, Subpart D, or
when they exhibit any characteristic identified in Part '261, Subpart C.   To
date, no such wastes are listed in Part 261 and no wastes are known to exist
 that exhibit a characteristic.  However, States should be advised to obtain
jurisdiction over this category in the event they become listed  or exhibit a
hazardous characteristic.

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     9541.08 (84)
                        WASHINGTON  D.C. 23460
                                                SCLiO WASTE A
 MEMORANDUM:

 SUBJECT:   Radioactive Waste  Sxemotion  in North and South
 FROM:    ^.ee  M.  Thomas
           Assistant  Administrator

 TO:        Charles R. Jeter
           Regional Adminstrator
           Region  IV.


     Thank you  foe your memorandum of July  11 regarding the
 exemption  of radioactive materials in North and South Carolina's
 hazardous  waste statutes.  You asked whether their programs
 could be authorized  with these exemptions.  The answer  is yes
 for  the reasons described below.

     On February  21  I wrote  to Regional Administrator Ernesta
 Barnes on  the  subject of State regulation of radioactive waste's.
 In that memorandum I explained that there are three categories
 of radioactive waste.  The first category - source, special
 nuclear and by-product materials defined by the Atomic  Energy
 Act  - is excluded from the definition of solid waste in RCRA;
 therefore, RCRA does not provide authority  for us to regulate
 these wastes as hazardous waste and we do not require authorized
 States to do so.  The second category is "mixed" waste; i.e.;
 those wastes which consist of source, special nuclear or by-
 product material  and RCRA hazardous waste.  At the time of my
 writing, we had not  determined the extent of E?A's authority
 over such wastes, and therefore did not require States  to have
 jurisdiction over or regulate "mixed" wastes.  The final category
 consists o£.radioactive wastes outside of the source, special
 nuclear or by-product universe such as naturally-occurring radio-
 nuclides and accelerator-produced radioisotopes.  Such  wastes are
 also hazardous if they are listed in 40 CFR Part 251, Subpart D,
or when they exhibit any characteristic identified in Part 261,
 Subpart C.

     North and South Carolina's laws do hot extend the  full range
 of RCRA controls  over this last category of radioactive hazardous
wastes.   A question  has arisen about whether any of these wastes
 in fact exist.   Since no wastes currently listed in Part 261,

-------
 Subpart  D,  are  radioactive,  we  focused on whether there are any
 naturally-occurring or  accelerator-produced wastes that exhibit a
 Subpart  C  characteristic.  After checking with the Office of
 Radiation  Programs, which has consulted with the regulated corrunu-
 nity  and research organ.izatio.ns, . we have determined that no such
 wastes are  known to exist-{copy -of memorandum attached).  From
 this  determination we now conclude that it  is inappropriate to
 require  States  to demonstrate control over  this hypothetical
 category of wastes' to obtain final authorization.  Accordingly,
 North and  South Carolina need not amend their statutes to obtain
 final authorization.
                                •

      I also wish to apprise  you of recent developments in the area
 of those mixed  wastes which  consist of source, special nuclear, or
 by-product  material and RCRA hazardous waste.  Since  issuance of
 the February 21 memorandum,  we have determined that RCRA authority
 does  extend to  these mixed wastes.  We are  now working with the""
 Department  of Energy to determine how best, under RCRA and the
 Atomic Energy Act, to implement this authority.  States need
 yet revise  their programs to regulate mixed wastes since EPA must
 still resolve some definitional issues.  However, you may wish to
 advise them of  this development, should they wish to  initiate
changes  in  their programs to obtain legal authority to regulate
mixed wastes.  At that  time  we would also advise States to obtain
 jurisdiction over the third category of non-excluded  radioactive
 and hazardous waste in  the future event that a non-excluded radio-
active waste  is listed or we discover that  such a waste exhibits a
hazardous characteristic.  Once we have defined our implementation
program, we  will work with the Regional Administrators to guide
States in revising their programs as required by 40 CFR §271.21.
 In the meantime, EPA is responsible for implementing  the RCRA    v
program with respect to mixed wastes.

     I appreciate you bringing this situation to my attention.
Please let  me know if you have further questions.

Attachment

cc:  Regional,Administrator, Regions I-III  and V-X
     Reg ional-'Hazardous Waste Division Director, Regions  I-X
     Regional Counsel, Regions I-X

-------
                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     AUG1   1884
    Existence of Hazardous  Non-Excluded  Radioactive Wastes
  *  Waste Management Standards  Branch
    Criteria & Standards Division  (ANR-450)

TO  John H. Skinner, Director
    Office of Solid Waste (WH-562B)

    THRU:   Richard J.  Guiaond,  Director..
           Criteria, and Standards  Division (
-------
               Federal  Register / Vol. 49. No.  208 / Thursday. October 23. 1984  /  Proposed  Rulea       42959
  ,0 CF« Part 271

  lOSWER-*-fBU-270 2-4 J

  South Carolina; Final Authorization of
  Stata Hazardous Waat» Management
  Program

  AGENCY: En vironrnenttf Protection
  Agency.             ''•
  ACTION: Notice of tentative
  determination on application of South
  Carolina for final authorization, public :.
  hearing, and public comment period.

  SUMMARY: South Carolina ha* applied
  for Final Authorization under the
  Resource Conservation and Recovery
  Act (RCRA). The Environmental
  Protection Agency (EPA) hai reviewed
  South Carolina's application and has
 made the tentative decision that South
 Carolina's hazardous waste program
 satisfies all of the requirements
 necessary to qualify for Final
 Authorization. Thus. EPA intends to
 grant Final Authorization to the State to
 operate its program in lieu of the federal
 program. South Carolina's application .
 for final  authorization is available  for
 public review and comment  and a
 public hearing will be held to solicit
 comments on the application if
 significant public interest is expressed.
 OArc: If significant public interest is
 expressed in.holding a hearing, a public
 hearing is scheduled for 7:00 p.m..
 Tuesday. November 27.1984. EPA  •
 reserves  the right to cancel the public
 hearing if significant public interest in
 holding a hearing it not communicated
 (o EPA by telephone or in writing by
 November 22.1964. EPA will  determine
 by November 23.1984. whether there is
 significant interest to hold the public
 hearing. South Carolina-will participate
 in the public hearing held by  EPA on
 this subject if a hearing is to be held. All
 written comments on the South Carolina
 Final Authorization application must be
 received  by the close of business on
 November 22.1984.
 AOOMKSSCS: Copies of South Carolina's
 Final Authorization application are
 available from 8:00 a.m. to 4:30 pjn. at
 the following addresses for inspection
 and copying:
Bureau of Solid and Hazardous Waste
  Managment Branch, Snth Carolina
  Department of Health and
  Environmental Control 2800 Bull
  Street.  Columbia. South Carolina
  29201. Contact: Robert E> Maipasa,
  (803) 758-5681:
Environmental Protection Agency.
  Regional Office Library. Room 121.
  345 Courtland Street N.£~ Atlanta.
  Georgia 30383. Contact Carolyn
  Mitchell (404) 881-4218:
 U.S. Environmental Protection Agency.
   Headquarters Library, PM-211A. 401
   M Street. S.W.. Washington. DC
   204601 (202) 382-5928.
 Written comments on the application
 and written or telephoned
 communication of interest in EPA's
 holding a public hearing on the South
 Carolina application must be sent to:
 Allan E. Antley. Chief. Waste Planning
 Section. U.S. EPA. 34S Courtland Street
 N,L Atlanta. Georgia 303851. (404) 881-
 3018.
   If you wish to find out whether or not
 EPA will hold a public hearing on the
 South Carolina application based upon
 EPA's decision that there  was
 significant public interest  in such a
 hearing, write or telephone after
 November 23.1984, the EPA contact
 person listed below, or telephone Mr.
 Robert E. Malpass. Chief.  Bureau of
 Solid and Hazardous  Waste
 Management South Carolina
 Department of Health and
 Environmental Control  2600 Bull Street.
 Columbia. South Carolina 29201.
   If significant public interest is
 expressed. EPA will hold a public
 hearing on South Carolina's application
 for Final Authorization on Tuesday.
 November 27.1984. at 7:00 p.m. at
 Peoples Auditorium. Sims Building, 2800
 Bull Street Columbia. South Carolina.
 POM niftTHCM INFORMATION CONTACT:
 Allan E. Antley. Chief. Waste Planning
 Section. Environmental Protection
 Agency. 345 Courtland Street N.E~
 Atlanta. Georgia 30385, (404) 381-3018.
 SUPPUMINTAMY INFORMATION:

 A. Background
  Section 3008 of the Resource
 Conservation and Recovery Act (RCRA)
 allows EPA to authorize the State
 hazardous waste programs to operate in
 the Stata in lieu of the federal hazardous
 waste program. Two types of
 authorization may be granted. The first
 type, known as "Interim Authorization."
 is a temporary authorization which is
 granted if EPA determines that the State
 program ia "substantially equivalent" to
 the federal program (Section 3008(c). 42
 U.S.C. 8228(c)). EPA's implementing
 regulations at 40 CFR 271.121-271.137
 established a  phased approach to
 Interim Authorization: Phase L covering
 the EPA regulations in 40 CFR Parts 260-
283. and 285 (universe of hazardous
wastes,  generator standards, transporter
 standards, and standards  for interim
status facilities), and Phase Q. covering
the EPA regulations in 40 CFR Parts 124.
284. and 270 (procedures and standarda
for permitting hazardous waste
management facilities).
  Phase IL in turn, has three
components. Phase U A covers general
permitting procedures and technical
standards for contamen and tanks.
Phase Q B covert permitting of
incinerator facilities, and Phase Q C
addresses permitting of landfills, surface
impoundments, wastepiles. and land
treatment facilities. By statute, all
Interim Authorizations expire on
January 26.1985. Responsibility for the
hazardous waste program returns
(reverts) to EPA on that date if .the State
has not received Final Authorization, as
described below.
  The second type of authorization is a
"Final" (permanent) Authorization that
is granted by EPA if the Agency Bnds
that the State program (1) is
"equivalent" to the federal program. (2)
ia consistent with the federal program
and other State programs, and (3)
provides for adequate enforcement
(Section 3006(b). 42 U.S.C. 0228(b)).
States need not have obtained Interim
Authorization in order to qualify for
Final Authorization. EPA regulations for
Final Authorization appear at 40 CFR
271.1-271.23.
B. South Carolina
  The State received Interim
Authorization for Phase I on February 2.
1981. Interim Authorization for Phase 0.
Components A and B. on November 3,
1982. and Component C on December ft.
1983. On April 21.1984. the State
submitted a draft application for Final
Authorization. The complete application
for  Final Authorization was submitted
on July 23.1984. Prior to submission of
the application to EPA, South Carolina
solicited public comments and held a
public hearing on June ft. 1984. The State
received no written comments. There
also were no attendees at the hearing.
and consequently, one was not held.
EPA's comments on the final application
were forwarded to the State on August
28.1984.
  The comments requested South
Carolina demonstrate that naturally-
occurring and accelerator-produced
radioactive wastes are regulated under
the South Carolina Radiation Protection
Act in a manner equivalent to RCRA.
These wastes are hazardous if they are
listed in 40 CFR Part 281. Subpart D. or
when they exhibit any characteristic
identified in Part 281. Subpart C. The
Attorney General was asked to
demonstrate that the State baa the
authority to prosecute criminally any
person who makes a false statement or*
representation in any document used for
program compliance. The State was
asked to provide detailed information on
their compliance and enforcament

-------
                                                                                   /  rroposea nuies
  prtv- .-dures in the Program Description
  and 10 alter tha MOA to conform to
  guidelines on permitting.
    South Carolina law was amended to
  extend the full range of RCRA control
  over naturally-occurring and
  accelerator-produced radioactive
  wastes.(in addition EPA ••• determined.
  through'consultation with Deregulated
  community and research offuizationa.
  that no such wastes are known to exist
  By letter dated September 13.1964. the
  Attorney General satisfactorily
  demonstrated the State possessed
  authority to prosecute criminally any
  person who makes a false
  representation  in any document used for
  program compliance. The Stale also
  provided revision* in the Program
  Description and the MOA. respectively.
  regarding compliance/enforcement
  procedures and permitting
  commitments.
   The Bureau of Solid and Hazardous
  Waste Management of the South
 Carolina Department of Health and
 Environmental  Control has been
 evaluated to determine its capability to
 conduct a quality hazardous waste
 program. The State has experienced
 difficulty in meeting its grant
 commitments for issuing permits and in
 compliance and enforcement actions.
 The State has agreed to improve
 processing practices and procedures for
 the work load increase projected for
 permitting for the  next several years.
 They have adopted EPA's enforcement •
 policy on late and deficient Part B's.
 They are instituting enforcement
 practices that will be equivalent to
 EPA's Enforcement Response Policy.
   EPA's final determination on granting
 authorization will be based on the
 State's ability to meet the above   '
 commitments and correct other program
 deficiencies which are delineated in the
 Letter of Intent
   FIM h.n reviewed South Carolina's
 app!>.:.-if: -i. and has tentatively
 determined that the State's program   ^
 meets ail of the  requirements necessary*
 to qualify for Final Authorization.
 Consequently. EPA intends to grant
 Final Authorization to South Carolina.
 Copies of South Carolina's application
 *re available for inspection and copying
 ?'. the locations  indicated fas the
 AGGRESSES section of this nolle*.
  EPA will consider all pubUe comments
 on its tentative determination. Issues
 raised by those comments may be the
 basis for a decision to deny Final
 Authorization to South Carolina. EPA
 expects to make a final  decision on
 whether or not to approve South
Carolina's program by January 22.1984,
 and will give notice of it in the Federal
Register. The notice will include a
 summary of the reasons for th« final
 determination and a response to all  .
 major comments.

 Regulatory Flexibility Act
   Pursuant to the provisions of 5 U.S.C.
 60S(B). I hereby certify that this
 authorization will not have significant
 economic impact on a substantial
 number of small entities. The
 authorization suspends the applicability
 of certain Federal regulations in favor of.
•the State program, thereby eliminating
 duplicative requirements for handlers of
 hazardous wastes in the State. It does
 not impose any new burdens on small
 entities. This rule, therefore, does not
 require a regulatory flexibility analysis.

 Executive Order 12291
   The Office of Management and Budget
 (OMB) has  exempted this rule from the
 requirements of Section 3 Executive
 Or -it 12291.

 List 01 5ubj'- -j in 40 CFR Part 271
   Hazardous materials. Indian-lands,
 Reporting and record keeping
 requirements. Waste treatment and
 disposal. Water pollution control. Water
 supply. Intergovernmental relations.
 Penalties. Confidential business
 information.
  Authority: This notice ia issued under the
 authority of Sections 2002(4). 3008. and
 70041 b| of the Solid W«at» OiipoMl Act ••
 amended by iht Resource Conierverton and
 Recovery Act of 1970. la amended. 42 U.S.C
 a912(a). 6028. and 6874(61. EPA Delegation 0-
 7.
  Dated: September 24 1984.
 Ch*rU« R. Jatar.
 Regional Administrator.
 ;n One. M>IUOI r<\»t i*-z*-«4. au ••)
 SILUM COOC IMO-tt-M
40 CFR Part 721
(OPTS-S031* TSH-f m.-2620-JJ

((OfnUrapnenyOAzoH2.4>OUmino-5>
Metric ry benzene] Derivative*;
Proposed Determination of. Significant
New Uses

ACCNCV: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.

SUMUAMY: EPA is proposing a significant
new use rule (SNUR) under section
S(a)(2) of the Toxic Substances Control
Act (TSCA) for substances which were
the subject of premanufacture notices
(PMN) P-83-817 and P-83-818.
DATES: Written comments should ba  '
submitted by December 24.1984.
Aooflcsas Since some comments are
expected to contain confidential
business information, all comments
should be sent in triplicate to: Document
Control Officer (TS-r93). Office of Toxic
Substances. Environmental Protection
Agency. Rm. E-W9, 401 M St. SW,
Washington. D.C. 20460.
  Comments should include the dockat
control number OPTS-50519. Non-
confidential versions of comment*
received on this proposal will be
available for reviewing and copying
from 8:00 a.m. to 4:00 p.m,  Monday
through Friday, excluding holidays, in
Rm. E-107. at the address given above.
For further information regarding the
submission of comments containing
confidential business information see
unit XI of tha preamble. .
POM •UMTMCII INFOftMATIOM CONTACT:
Edward A. Klein. Director. TSCA
Assistance Office (TS-799). Office of
Toxic Substances, Environmental
Protection Agency, Rm. E-643. 401 M St.
SW_ Washington. O.C 20460, ToQ free:
(800-424-9086}'. In Washington. D.C:
(554-1404). Outside the USA: (Operator-
202-654-14041
»us*uiif IMTAJIY MFOKMATIOIC OMB
Control Number 2070-0012.
                        f   . •
L Authority'

  Section 5(a)(2) of TSCA  authorizes
EPA to determine that a use of a
chemical substance is a "significant new
use." EPA must make this  determination
by rule, after considering all relevant
factors, including those listed in lection
5(a)(2). Once a use is determined to be a
significant new use. persons must, under
section S(a)(l](B). submit a notice to.
EPA at least 90 days before they
manufacture, import, or process the
substance for that use. Such a notice is
subject to the same requirements and
procedures as a PMN submitted under
section 5(a)(l)(A) of TSCA which are
interpreted at 40,CFR Part 720 published
in the Federal Register of May 13.1983
(48 FR 21722). In particular, these
include the information submission
requirements of section 5{b)
certain exemptions authorized by
section 5(h), and the regulatory
authorities of section 5 (e) and (f). If EPA
does not take regulatory action under
section 5. 8, or 7 to control activities on
which It has received a SNUR notice.
section J(gJ requires the Agency to
explain in the Federal Register its
reasons for not taking action.
  Substances covered by proposed or
final SNURS are subject to tha export .
reporting requirements of TSCA section
12(b). EPA regulations interpreting > •
section 12(b) requirements appear at 40
CFR Part 707. Substances  subject to
final SNURs are subject to TSCA

-------