&EPA
Unrl*0
Environment*! Protection
Solid W««i» and
DIRECTIVE NUMBER: 9^.00-2
: Applicability of RCRA to Department of Energy
Facilities
APPROVAL DATE: 05-01-85
EFFECTIVE DATE: 05-01-85
ORIGINATING OFFICE:
Q FINAL
D DRAFT
STATUS: [ ]
[ 3
Office of Solid Waste
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
[ ] D- In development or circulating
REFERENCE (other documents):
headquarters
'
£ DIRECTIVE DIRECTIVE D
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United States nvironmental rotection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Number
91*3!;. 00-2
2. Originator Information
Name of Contact Person
George Garland
Mail Code
WH-563
Office
osw
Telephone Code
(202) 302-2210
3. Title
Applicability of RCRA to Department of Energy Facilities
4. Summary of Directive (include brief statement of purpose)
Provides information and guidance on the applicability of RCRA to the
regulation mixed wastes at DOE facilities.
5. Keywords
Mixed Waste/Federal Agency/Federal Facility
5a. Does This Directive Supersede Previous uirective(s).'
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes . What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
Yes
X
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
10. Name and Title of Approving Official
John H. Skinner, Director, OSW
Date
Date
05-01-85
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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. 00-
MEMORANDUM
SUbJECTr
FROM:
TO:
MAT i
Applicability of RCRA to Department of
Energy Facilities
John P. Skinner
Director
Office of Solid Waste (WH-562)
Directors, Hazardous waste Division
Regions I-X
This memorandum will provide you with information on three
issues related to the applicability of RCRA to Department of
Energy (DOE) facilities. First-, I want to update you on the
status of our negotiations with DOR. Second, I want to provide
guidance as to how the Agency will treat DOE facilities,
for the present and in the future. Last, I want to
some information and guidance on what we will be expectf
the States and how we will be judging their programs, rel
to DOE, for purposes of authorization.
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We are continuing to negotiate and define with DOE
the legal and technical parameters under which the two
cies will operate. As a result of the U.S. District CouiCfe,
decision regarding DOE's Y-12 facility in Tennessee and the
subsequent acceptance by DOE that the Court's decision would
apply to all DOE's facilities, both agencies have agreed that
RCRA applies to DOE facilities for both hazardous wastes and
certain radioactive mixed wastes, vie are currently developing
policy and drafting regulations and guidance that will formal-
ize our operations.
Three joint EPA-DOE committees have been formed to establish
this policy. The first committee is a policy committee to
write and interpret regulations, including the legal definition
of source, special nuclear, and byproduct wastes. The second
committee is looking at the technical application of the regula-
tions. The third committee is discussing security issues,
required to inspect handlers and to review
that are developed as a result of these
will be incorporated in revisions
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to 40 CFR Farts 124, 260-265, 271 and 10 CFR Part 692. The
revision* should include a working definition ot "byproduct
material," procedures for review and approval of variances
(e.g., exemption from reporting certain w^ste analyses),
procedures for the handling of classified information, and
requirements for State programs.
In addition to establishing regulatory requirements for
State authorization, EPA may assume a limited role in medi-
ating disputes between DOR and an authorized State. Upon the
request of either DOE or an authorized State, FPA might issue
an advisory opinion as to whether the application of partic-
ular State hazardous waste regulations is inconsistent with
the Atonic Energy Act. The opinion would not bind either
party. However, if TX>E and the State are unable to resolve
their differences and must seek a legal remedy, a court cotild
consider EPA's opinion in rendering a decision, whether that
opinion favored the State or DOE.
Let me turn to the second point of this memorandum-- -~ \
treatment of DOB facilities. Both DOE and EPA consider tlMT-
February 22, 1984, Memorandum of Agreement to be no longer in.
effect. No Hazardous waste Compliance Plans will be issued* .-
All DOB facilities are required to obtain a RCRA permit for
certain RCRA regulated mixed wastes as well as for their
hazardous wastes. Hntil we promulgate new regulations defining
mixed wastes and establishing the standards for DOB handlers,
we recommend that permits be issued for all wastes which exhibit
a characteristic or are listed, and those mixed wastes which
are clearly RCRA wastes, i.e., where Doe agrees that a particular
nixed waste is subject to PCHA. Thus, where FPA ts the permitting
authority, we can add conditions at a later date for handling
any subsequently defined nixed wastes. The Agency need not
d«f-?r all action on DOE permits pending promulgation of t^o
regulations.
You should also be following the same protocol and schedule
for inflpMllMk-DOB handlers as you do now for all hazardous
in mind that starting in November 1985,
t be inspected by EPA on an annual basis
as rofEjfjJiJfcJLJ*' "' ''''"" and Solid Waste Amendments of 1984.
Securityefffcrantes may be needed for individuals performing
these inspections. If the inspection documents the presence of
one or more Class I violations, a Notice of Violation/Compliance
Demand (NOV/CD) should be developed, which recites for the record
~gH~gtei:gtlQna present at th« hanaitr, specifies lii uttail the
necessary remedies for each and establishes a reasonable imple-
mentation schedule. The NOV/CD should be accompanied by a cover
letter that advises the handler of its options for response and
specifically allows it to reach consensual settlement of th«
case. This would be accomplished by the handler agreeing Ln
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writing, within ten days of receipt of the Mcv/cr to r-iplcr-ent
the r*n«di«S as indicated in the schedule. The v.-ov/cr is
still effective upon receipt, notwithstanding *r»y efforts
to resolve the case through the consent nechar.isn. Thirty
days should be provided in the NOV/CD to reach a negotiated
settlement before moving ahead with an administrative orH^r.
Failing that, you should work with your Region's Federal
Facilities Coordinator and also notify us of your problems.
Headquarters involvement may not be appropriate, but we would
like to remain informed of any difficulties, where it is
appropriate, Tony Baney of the Office of Waste Programs
Enforcement should be informed, as well as OSW's Federal
Facilities Coordinator, Andrea Pearl who will work with
EPA's Office of Federal Activities and DOE Headquarters'
staff to try to facilitate a resolution. Tony's number is
FTS 475-6173 and Andrea's number is FTS 392-2210.
we will also continue, for the time being, to follow
the policy outlined in Lee Thomas' February 21, 1984, memorandflfei
to Ernesta Barnes (copy attached) regarding the applicability •;
of States' regulations to DOE facilities. That is, States T
do not have to regulate mixed waste at the present time as
an authorization requirement. A State nay indeed regulate
such wastes under State law? however, under RCRA, States
cannot yet receive authorization tr> do so. ^e intend to
publish a Federal Register notice describing our interpretation
of the radioactive waste exclusion. At such time, States
will be required to obtain authorisation for an equivalent
provision by anending their progrars, whore necessary.
•:-/here amendment is not necessary, # certification from the
Attorney General will be required. Thf ci^e traces contsinoH
in 40 CFR S271.21(e) will apply.
In the meantime, where a State has legal authority over
RCRA-exempted mixed wastes, such state is not authorized to
issue RCRA permits to facilities which handle those nixed
wastes, _f$$t«— imposed requirements which are beyond the
scop* ujnMjpT'F+d^ral program (such as the management of these
mix»d wajfK|, •• hasardous) are not part of the Federally
program. It should be noted that in an authorized
State, ETPA also cannot issue permits for handling such
wastes. Section 3006(c)(4) of the Hazardous and Solid Waste
Amendments of 1984 allows joint Federal-State perraits to be
issued where a State is not yet authorized for a particular
new requirement ot the Ajflenflfflentr; - However, — the mixed waste
issue is not addressed in the Amendments and, therefore,
that provision is inapplicable.
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I hope this discussion has been helpful. We will be
keeping you informed as we progress. In the meantime, I
would urge you to begin making the States aware of our plans,
Attachment
cc: Hazardous Waste Branch Chiefs, Regions I-X
Federal Facilities Coordinators, Regions I-X
Jack McGraw
Gene Lucero
Mike Cook
John Lehman
Eileen Claussen
Lisa Friedman
Lee Herwig
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