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2001 Rule Reduces Dual Regulation of LLMW

Regulated entities long complained the dual regulation of low-level mixed waste (LLMW) under both RCRA and NRC/DOE requirements is burdensome, duplicative, and expensive. Such facilities also argued the dual regulatory scheme provides little or no additional protection of human health and the environment compared to what could be achieved under one program alone. Additionally, due to the limited treatment/disposal capacity for such wastes, many LLMW generators are forced to store their wastes onsite for long periods of time.

To address these concerns and meet the conditions of a consent decree concerning the hazardous waste identification rule, EPA promulgated a rule on May 16, 2001 [66 FR 27218] to reduce the dual regulation of LLMW. The final rule includes two significant exemptions from the RCRA regulations: 1) a conditional exemption for LLMW during storage and treatment; and 2) a conditional exemption for LLMW and hazardous naturally occurring and/or accelerator-produced radioactive material (NARM) waste during transportation and disposal. These requirements are codified in Part 266, Subpart N.

The storage and treatment exemption at non-DOE facilities

The LLMW storage and treatment exemption excludes LLMW from the definition of hazardous waste while it is in storage in tanks or containers at NRC-licensed facilities if it meets certain conditions. Treatment of conditionally exempt LLMW may also occur within the tanks and containers if it is in compliance with NRC license requirements. However, once the LLMW is removed from storage for further management, it becomes subject to full RCRA regulation unless it qualifies for the transportation and disposal exemption.

For LLMW to be eligible for the storage and treatment exemption from RCRA, it must be generated and managed under a single NRC or NRC agreement state license. Mixed waste generated at a DOE facility is not eligible for the exemption. Neither is LLMW generated at a commercial facility with an NRC license that is shipped to a second facility with a different license number. In addition, the exemption does not apply to NARM waste. To qualify for and maintain the exemption, the following conditions must be met [§§266.230, 266.235, 266.250]:

• LLMW must be stored in tanks or containers that are in compliance with the NRC or agreement state license requirements for the storage of low-level radioactive wastes (not including license requirements that pertain solely to recordkeeping). The tanks or containers must also be in compliance with RCRA chemical compatibility requirements in §264.177 or 265.177 (for containers) or §264.199 or 265.199 (for tanks).
• Treatment of exempt LLMW is limited to typical tank- or container-based waste treatment operations (e.g., stabilization, solidification, drying, neutralization) performed in accordance with the facility’s NRC license. Such treatment can be conducted without a RCRA permit or time constraints. Treatment that would normally require a permit under RCRA (e.g., incineration, molten-salt oxidation, supercritical water oxidation) is not allowed under this exemption.
• The owner/operator must certify that facility personnel who manage stored conditionally exempt LLMW have been properly trained to ensure safe management of the wastes, including training in chemical waste management and hazardous materials incident response that meets the §265.16(a)(3) RCRA personnel training standards.
• An inventory of the stored conditionally exempt LLMW must be conducted at least annually and an inspection must be performed at least quarterly. In addition, an emergency plan must be maintained and provided to all appropriate local authorities.
• The generator, treater, or handler of LLMW must notify EPA. The certified notification must include the facility’s name, address, EPA ID number, NRC or NRC agreement state license number, the waste code(s) and storage unit(s) for which the exemption is sought, and a statement that the conditions of the final rule are met. Notifications must be submitted within 90 days of when a storage unit is first used to store conditionally exempt LLMW.
• Records pertaining to inventories and inspections, notifications, personnel training, and emergency plans must be maintained for three years after the waste is sent for disposal or in accordance with NRC regulations in 10 CFR Part 20, whichever is longer.

If the storage and treatment exemption from RCRA is lost, the LLMW becomes immediately subject to all RCRA Subtitle C requirements. Additionally, the waste reenters RCRA regulation if 1) the radioactivity has decayed to the point that the waste can be disposed of as nonradioactive, or 2) the LLMW is removed from storage.

The transportation and disposal exemption for all facilities

The transportation and disposal exemption excludes LLMW and NARM from the definition of hazardous waste when certain conditions are met. It exempts the following wastes from RCRA manifesting, transportation, and disposal requirements: 1) LLMW that meets the acceptance criteria of a low-level radioactive waste disposal facility (LLRWDF), and 2) hazardous NARM waste that meets the acceptance criteria of, and is allowed to be disposed of in, a LLRWDF. Both DOE and commercial facilities can manage LLMW and hazardous NARM as solely radioactive wastes under this exemption.

The conditions that must be met for this second exemption to apply include [§§266.315, 266.330, 266.335, 266.340, 266.345, 266.350]:

• The waste must meet the applicable RCRA LDR treatment standards, including the alternative soil treatment standards.
• The waste must be packaged, labeled, manifested, and transported in compliance with NRC regulations. It is not necessary to package, label, or manifest the waste as RCRA hazardous waste when preparing the waste for transportation to the disposal facility.
• The waste has been placed on a transportation vehicle destined for the LLRWDF.
• The waste must be placed in containers before disposal. The containers must be one of the following: 1) a carbon steel drum, 2) an alternative container with containment performance equivalent to that of a carbon steel drum, or 3) a high-integrity container as defined by the NRC. [§266.340] Based on this regulatory language, it may be possible to ship a bulk load of LLMW/NARM (e.g., contaminated soil) in a tank or rail car and have the waste containerized at the LLRWDF.
• The waste must be disposed of at a designated LLRWDF that is regulated and licensed by the NRC under 10 CFR Part 61 or by an NRC agreement state. To qualify for the exemption, wastes may not be sent for disposal at a DOE radioactive waste disposal facility.
• The facility originating the waste shipment must notify EPA of the exemption claim before the first shipment of an exempted waste to a LLRWDF. The written notification must include the facility’s name, address, phone number, and EPA ID number. In addition to the EPA notification, before shipment of each exempted waste, the facility must notify the LLRWDF by certified delivery that they will be receiving the exempted waste. The wastes may only be shipped after a return receipt for the notification to the LLRWDF has been received.
• Copies of all notifications and return receipts must be kept for three years after the last exempted waste is sent for disposal. LDR program recordkeeping requirements specified in §§264.73, 265.73, and 268.7 must also be met. Finally, all other NRC documents related to tracking the transportation of the exempted waste must be maintained.

Since this transportation and disposal exemption may involve interstate transportation of conditionally exempt waste, the exemption must be adopted and authorized in both the state in which the generator is located and the state in which the LLRWDF is located. If the waste travels through any transit states between the shipping and receiving state that have not become authorized for the exemption, the shipment must be in compliance with RCRA manifest provisions. EPA recommends the generator note that the waste is subject to the Part 266, Subpart N transportation and disposal exemption in Block 14 of the uniform hazardous waste manifest.