[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Notices]
[Pages 59989-59992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29819]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6183-4]
Extension of the Policy on Enforcement of RCRA Section 3004(j)
Storage Prohibition at Facilities Generating Mixed Radioactive/
Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Policy statement.
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SUMMARY: EPA is announcing a limited extension of its policy (56 FR
42730, August 29, 1991) on the civil enforcement of the storage
prohibition in sec. 3004(j) of the Resource Conservation and Recovery
Act (RCRA) at facilities that generate ``mixed waste'' regulated under
both the RCRA subtitle C hazardous waste program and the Atomic Energy
Act of 1954, as amended (AEA). The policy affects only mixed wastes
that are prohibited from land disposal under the RCRA land disposal
restrictions (LDR) and for which there are no available options for
treatment or disposal. EPA has determined that for a few of these mixed
wastes, treatment technology and disposal capacity still is not
commercially available. Based on this determination, EPA is hereby
renewing for three years the August 1991 policy for those mixed wastes.
For purposes of this policy statement, ``available treatment technology
and disposal capacity'' means that a facility is commercially available
to treat or dispose of a particular waste and the facility has either
(1) a RCRA permit or interim status; (2) a research, development, and
demonstration permit under 40 CFR 270.65; or (3) a land treatment
permit under 40 CFR 270.63.
[[Page 59990]]
Pursuant to the terms of this policy, EPA will continue to treat
violations of RCRA sec. 3004(j) as reduced priorities among EPA's
potential civil enforcement actions. EPA's primary concerns are with
mixed waste facilities (1) that are storing wastes for which treatment
technology is commercially available, and (2) that are not managing
their stored mixed waste in an environmentally responsible manner.
Generators must regularly explore all treatment and disposal
alternatives during the extension because new technologies may come on
line at any time. If treatment technology or disposal capacity is
available or becomes available, the generator must use it. EPA will
employ RCRA enforcement authorities to ensure that this policy is not
abused, with particular focus on ensuring that emerging treatment
technologies are fully utilized and on confirming that those wastes for
which no treatment exists are stored safely.
EFFECTIVE DATE: October 31, 1998.
FOR FURTHER INFORMATION CONTACT: Leslie Bell, Federal, State and Tribal
Programs Branch, Office of Solid Waste; Telephone (703) 308-8888 or
Mary Andrews, RCRA Enforcement Division, Office of Regulatory
Enforcement; Telephone (202) 564-4011.
SUPPLEMENTARY INFORMATION:
I. Background
A. Mixed Waste and the LDR Storage Prohibition
``Mixed wastes'' are wastes that contain both a hazardous waste
component regulated under Subtitle C of RCRA and a radioactive
component consisting of source, special nuclear, or byproduct material
regulated under the AEA. On July 3, 1986, EPA clarified that RCRA
applies to the hazardous component of these wastes (51 FR 24504). The
hazardous component of mixed wastes is subject to the land disposal
restrictions in 40 CFR Part 268. The LDR requires generators to treat
hazardous wastes to specified treatment standards.
The aspect of the LDR affected by the policy extension set forth in
this notice is the ``storage prohibition'' enacted in the Hazardous and
Solid Waste Amendments (HSWA), RCRA section 3004(j), 42 U.S.C. 6924(j),
and 40 CFR 268.50. This provision prohibits any storage of a waste
prohibited from land disposal (including mixed waste) except ``for the
purpose of the accumulation of such quantities of hazardous waste as
are necessary to facilitate proper recovery, treatment, or disposal.''
EPA has concluded that storage of a waste pending development of
treatment technology does not constitute storage to accumulate
sufficient quantities to facilitate proper treatment or disposal. This
interpretation was upheld by the U.S. Court of Appeals for the District
of Columbia Circuit in Edison Electric Institute v. EPA, 996 F.2d 326
(D.C. Cir. 1993).
However, treatment and disposal options are limited for some mixed
wastes, both currently generated and generated in the past. Therefore,
commercial generators may have no option but to store those wastes for
which treatment technology or disposal capacity is not yet available.
B. Mixed Waste Treatment Technology and Disposal Capacity
In the past year, EPA has visited hospitals, laboratories, nuclear
power plants, universities, and treatment and disposal facilities. The
Agency has also conducted research on emerging mixed waste treatment
technologies, and has employed RCRA information gathering authority to
collect information from several facilities regarding the treatment and
disposal of their mixed wastes. The purpose of these efforts was to
determine the extent to which generators have utilized available
treatment and disposal alternatives, to ascertain whether there are
mixed wastes that can not be treated, and to confirm that those wastes
for which no treatment exists are stored safely and in compliance with
interim status or a RCRA storage permit. As a result of its
investigation, EPA believes that (1) currently treatment is available
for most low level mixed wastes, but treatment continues to be
unavailable for a few wastes, such as mixed wastes containing dioxins,
PCBs, and lead based paint solids, and wastes with very high levels of
radioactivity; and (2) where treatment technology is available, there
is excess capacity at the commercial mixed waste treatment facilities.
In an effort to help generators locate mixed waste treatment,
storage, and disposal facilities, EPA has developed an Internet
HomePage that lists some commercially available mixed waste treatment,
storage, and disposal facilities based on information received from
vendors. The EPA Mixed Waste HomePage can be found at ``http://
www.epa.gov/radiation/mixed-waste.'' This list should not be seen as
complete or as a recommendation or endorsement of any of these
facilities. This list only represents those companies that have
expressed an interest in participating in EPA's Mixed Waste Internet
HomePage. EPA does not endorse or promote technologies or companies
that provide treatment, storage, or disposal capacity for any waste,
including mixed waste. Companies that wish to participate should
contact EPA's Office of Solid Waste at the number listed for this
Federal Register notice.
II. Summary of Policy
A. Storage Prohibition Policy Extension
In this notice, EPA is announcing a limited extension of its policy
(56 FR 42730, August 29, 1991) on civil enforcement of the storage
prohibition in RCRA section 3004(j) at facilities that generate mixed
wastes. This policy extension is limited to three years from October
31, 1998. Note that this extended policy applies only to those waste
streams for which no treatment technology or disposal capacity is
available. If treatment technology and disposal capacity are available,
the generator must use it. This policy is not a final agency action,
but is intended solely as guidance. This policy is not intended, nor
can it be relied upon, to create any rights enforceable by any party in
litigation with the United States. EPA officials may decide to follow
the policy provided in this extension or to act at variance with the
policy, based on an analysis of specific site circumstances. The Agency
also reserves the right to change this policy at any time.
The intent of this policy is to explain how RCRA section 3004(j)
storage violations involving mixed wastes fit within the Agency's civil
enforcement priorities. For generators that are storing mixed wastes
for which no viable treatment technology or disposal capacity exists,
EPA considers the violations of RCRA section 3004(j) to be a relatively
low priority among EPA's potential civil enforcement actions so long as
the wastes are stored in accordance with a RCRA permit or interim
status and are stored in an environmentally responsible manner. Any
enforcement activity arising from violations of RCRA section 3004(j)
will generally focus on those facilities that store mixed wastes for
which treatment technology is commercially available or fail to manage
any mixed waste in an environmentally responsible manner.
In addition, generators of the affected mixed waste must be
following prudent waste management practices to store their mixed
wastes in a manner that minimizes risk to public health and the
environment. In determining the civil enforcement priority of RCRA
section 3004(j) storage violations at particular mixed waste generator
facilities, the Agency recognizes a variety of indicators of
environmentally responsible operation. These factors are
[[Page 59991]]
described in Section IV of this document.
EPA is currently developing an Advance Notice of Proposed
Rulemaking that will request comment on several strategies to address
overlapping regulatory requirements for mixed waste with low levels of
radioactivity that is subject to both Nuclear Regulatory Commission and
EPA oversight. The Agency expects to request comments on options for
mixed waste storage and treatment, including storage for decay, and
alternative suggestions for providing regulatory flexibility for mixed
waste management.
B. Limitations on Scope
This policy affects only the priority placed on potential civil
judicial and administrative enforcement actions that would arise from
storing mixed wastes subject to the LDR in contravention of RCRA
section 3004(j). This policy does not limit the Agency's enforcement
authority, including its authority under RCRA section 7003 relating to
imminent and substantial endangerment. The policy also is limited to
those mixed waste streams for which treatment technology or disposal
capacity is not commercially available. The mixed wastes covered by
this policy must be mixed wastes when generated; a generator may not
commingle radioactive waste streams with hazardous waste in order to
come within the scope of this policy.
EPA intends that this policy apply both to mixed wastes generated
during the term of the policy, and to existing inventories of mixed
wastes already in storage. The policy does not cover other violations
of RCRA storage requirements, such as the storage facility standards of
Subparts I through L and DD of 40 CFR Parts 264 (permitted facility
standards) or 265 (interim status facility standards), or their state
equivalents. EPA emphasizes that this policy does not affect any
requirement under RCRA to obtain a storage permit, which is generally
required if mixed wastes are stored for greater than 90 days. The
policy does not extend to potential criminal violations of RCRA, for
which prosecutorial discretion rests solely with the United States
Attorney General.
EPA intends to apply this policy to executive branch federal
facilities, except facilities owned or operated by the Department of
Energy (DOE) or by the joint Navy/DOE Naval Nuclear Propulsion Program
(NNPP). The Federal Facilities Compliance Act of 1992 (FFCA), 42 U.S.C.
6912, 6939c and 6961, section 102(c)(3)(B) requires DOE and NNPP to be
in compliance with (1) an approved plan to develop capacities and
technologies to treat a facility's mixed waste; and (2) any order
requiring compliance with such plan issued in accordance with RCRA
section 3021(b), 42 U.S.C. 6939c. With respect to DOE and NNPP, EPA
enforcement of RCRA section 3004(j) will be based on the terms
contained in the plans and orders developed pursuant to RCRA section
3021, and not on the terms of this policy.
III. Applicability
Mixed waste is regulated by EPA in states that are not authorized
for the RCRA base program. As of June 30, 1998, three states and four
territories have not received RCRA base authorization. These states and
territories are Alaska, American Samoa, Hawaii, Iowa, Northern Mariana
Islands, Puerto Rico, and Virgin Islands. In these states and
territories, EPA alone administers the RCRA program and therefore this
policy applies in these states.
This policy is not applicable in states that are authorized for the
RCRA ``base'' program but are not authorized for mixed waste because in
these states, mixed waste is not subject to RCRA jurisdiction. As of
June 30, 1998, those states are the District of Columbia, Maryland,
Massachusetts, New Jersey, Pennsylvania, Rhode Island, Virginia, and
West Virginia.
Mixed waste is regulated by EPA and the state in those states that
are authorized for both the base program and for mixed waste. In states
authorized for mixed waste that are not authorized to implement any or
all of the LDR regulations, EPA implements the LDR provisions for all
waste codes which the state has not yet been authorized. As of June 30,
1998, Indiana, Kentucky, Louisiana, Montana, Nebraska, New Hampshire,
South Dakota, and Washington do not have authorization for a
significant portion of the LDR program and thus this policy is
applicable to many wastes generated in these states.
In states that are authorized for both mixed waste and portions of
the LDR program, the state, as well as EPA, has authority to enforce
those portions of the LDR program for which the state is authorized.
This policy affects only the EPA enforcement programs. States that are
authorized for both mixed waste and the LDR may choose to follow this
federal policy, however, it is not binding on them. Therefore,
generators should consult with their states for clarification of the
state's policy with respect to storage of LDR prohibited mixed waste.
During the term of this policy, additional states may receive
authorization for mixed waste or portions of the LDR program. Facility
owners and operators should track the authorization status of their
state programs in order to ascertain whether they are covered by this
policy, or whether other restrictions based on state law might apply to
mixed waste storage. Information on a state's authorization status for
mixed waste can be found on the EPA Mixed Waste HomePage previously
cited. EPA's State Authorization HomePage at ``http://www.epa.gov/
epaoswer/hazwaste/state/index.htm'' also provides information on the
status of authorization for mixed waste and LDR.
IV. Responsible Management of Mixed Waste
In order to demonstrate that they are pursuing environmentally
responsible management of their mixed wastes (and therefore should be
accorded a reduced civil enforcement priority for RCRA section 3004(j)
violations), owners and operators of facilities generating and storing
mixed wastes should undertake at least the following steps.
A. Inventory and Compliance Assessment of Storage Areas
RCRA regulations applicable to hazardous waste storage require
facilities to maintain a record identifying each physical location or
unit where mixed waste is stored and the method of storage, i.e.,
container or tank, see 40 CFR 264.73(b) or 265.73(b). The regulations
also require regular inspection of these storage areas for compliance
with applicable RCRA standards and permit requirements, including an
assessment of compliance with the storage facility standards of 40 CFR
Part 264 or Part 265, Subparts I-J and DD, or the state counterparts to
these standards (see 40 CFR 264.15 or 265.15). Facilities must maintain
records containing the results of the inspections as required by 40 CFR
264.73(b)(5) or 265.73(b)(5). EPA encourages facility owner/operators
to take action promptly to correct any deficiencies, since EPA expects
to focus its enforcement efforts regarding RCRA section 3004(j)
violations on situations that indicate a disregard for compliance with
the RCRA Subtitle C requirements.
B. Identification of Mixed Wastes
Facility owner/operators should maintain sufficient information to
identify their mixed wastes. The identification should include the RCRA
[[Page 59992]]
waste codes for the hazardous components, the source of the hazardous
constituents and discussion of how the waste was generated (if known),
the generation rate and volumes of mixed wastes in storage, and any
process information relied upon to identify mixed wastes or make
determinations that wastes are subject to the LDR (see 40 CFR 264.73 or
265.73).
C. Waste Minimization Plans
EPA understands that many mixed waste generators have undertaken
active measures to avoid the generation of mixed wastes. EPA continues
to encourage mixed waste generators to develop a waste minimization
plan (see 58 FR 31114, May 28, 1993, for guidance) to reduce or
eliminate mixed wastes, to minimize the volume of regulated wastes
generated, and to substitute non-hazardous materials.
D. Good Faith Efforts
This policy is limited in scope to those LDR-prohibited mixed
wastes for which no treatment technology or disposal capacity is
commercially available. Because additional treatment technology or
disposal capacity may become available at any time in the future,
facility owner/operators should be prepared to demonstrate ongoing good
faith efforts to locate treatment technology and disposal capacity for
each of their mixed wastes and to utilize any and all such treatment
technology and disposal capacity.
Dated: October 31, 1998.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
Sylvia Lowrance,
Acting Assistant Administrator, Office of Enforcement and Compliance
Assurance.
[FR Doc. 98-29819 Filed 11-5-98; 8:45 am]
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