Previous Corner.

LAST MONTH’S CONTENT FOR YOUR CONVENIENCE.

In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2019 Edition.

Learn more >   Buy >   Compliance Corner >

©2019 McCoy and Associates, Inc. All rights reserved.

Radioactive Materials and Mixed Waste

Historically, uncertainty has surrounded the issue of whether or not RCRA is applicable to mixed wastes—wastes that are both hazardous and radioactive [i.e., they contain source, special nuclear, or by-product material regulated by the Atomic Energy Act of 1954 (AEA)].

This article describes radioactive and mixed wastes, as well as the exclusion for source, special nuclear, and by-product materials. The effects of a May 16, 2001 rule [66 FR 27218] on the storage, treatment, transportation, and disposal of mixed waste are incorporated throughout this article and are summarized at the end.

Two types of radioactive materials

There are two categories of radioactive materials:

  1. Source, special nuclear, and by-product materials defined by the AEA; and
  2. Naturally occurring and/or accelerator-produced radioactive material (NARM).

Source, special nuclear, and by-product materials

Source, special nuclear, and by-product materials are excluded from the RCRA definition of solid waste in §261.4(a)(4). These materials are defined as follows:

  • Source material—Uranium, thorium, or any other material which is determined by the Atomic Energy Commission (AEC—the precursor agency to the NRC)…to be source material, or ores containing one or more of the foregoing materials, in such concentration as the AEC may by regulation determine from time to time. [AEA Section 11(z)]
  • Special nuclear material—Plutonium, uranium enriched in the isotope 233 or 235, and any other material that the AEC…determines to be special nuclear material, or any material artificially enriched by any of the foregoing (but does not include source material). [AEA Section 11(aa)]
  • By-product material—(1) Any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material; (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content; (3) any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or any material that—(i) has been made radioactive by use of a particle accelerator; and (ii) is produced, extracted, or converted after extraction, before, on, or after the date of enactment of this paragraph for use for a commercial, medical, or research activity; and 4) any discrete source of naturally occurring radioactive material, other than source material, that—(A) the Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and (B) before, on, or after August 8, 2005 is extracted or converted after extraction for use in a commercial, medical, or research activity. [AEA Section 11(e)]

The specific regulations for radioactive material management developed under the AEA are administered by DOE at DOE facilities and by the NRC at all other facilities.

NARM and TENORM

NARM is defined as radioactive materials that are naturally occurring or produced by an accelerator used in subatomic particle physics research. Technologically enhanced naturally occurring radioactive material (TENORM) is a subset of NARM and refers to materials whose radioactivity has been technologically enhanced by controllable practices, such as mineral extraction or processing activities. Such materials include exploration and production wastes from the oil and natural gas industry, water treatment sludges, and wastes from the mining industry. TENORM does not refer to the natural or background radioactivity of rocks and soils. [November 19, 1999; 64 FR 63466] (Before 1998, the term used for these materials was NORM; however, based on more current industry and regulatory practice, the term “TENORM” is considered more appropriate.)

TENORM is defined by the National Academy of Sciences as follows: “Technologically enhanced naturally occurring radioactive materials are any naturally occurring radioactive materials not subject to regulation under the Atomic Energy Act whose radionuclide concentrations or potential for human exposure have been increased above levels encountered in the natural state by human activities.” Total amounts of TENORM wastes produced in the United States may be in excess of 1 billion tons annually. [Evaluation of EPA’s Guidelines for Technologically Enhanced Naturally Occurring Radioactive Materials, EPA/402/R-00/001, June 2000, available at https://www.epa.gov/sites/production/files/2015-04/documents/402-r-00-001.pdf]

EPA has posted significant information about TENORM on its website at https://www.epa.gov/radiation/technologically-enhanced-naturally-occurring-radioactive-materials-tenorm.

Mixed waste

“Mixed waste” is defined as “waste that contains both hazardous waste and source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954.” [RCRA Section 1004(41)] It is typically generated by DOE, certain military facilities, nuclear power plants, industrial facilities, research laboratories, and medical institutions. Mixed waste generated by commercial and non-DOE federal facilities is regulated by the NRC, while DOE regulates mixed waste generated at its own facilities. Such mixed waste is subject to both RCRA hazardous waste and AEA radioactive waste regulations. [RO 13004] Mixed waste may include any AEA-regulated radionuclide, regardless of whether that radionuclide is classified as high-level, transuranic, or low-level waste, as discussed further below. [RO 12935]

Commercially generated (non-DOE) mixed waste

Almost all commercially generated (non-DOE) mixed waste is made up of low-level mixed waste (LLMW) generated at nuclear power, industrial, research, and medical facilities. A large percentage of this non-DOE LLMW is liquid scintillation cocktails that contain small amounts of radioactivity in organic solvents. Other types of LLMW that may be generated at non-DOE facilities include spent solvents containing radionuclides; radioactive spent freon, acetone, or other solvents used to clean protective garments and equipment; filters used during radioactive solvent reclamation; still bottoms from the distillation of radioactive solvents; spent ion-exchange resins; adsorbents; residues from spill cleanups; lead shielding; lead-lined containers; welding rods; and batteries.

Spent fuel from nuclear power plants is categorized as high-level radioactive waste. Some elements of these wastes will remain radioactive for thousands of years. However, EPA does not believe that spent nuclear reactor fuels generally will be RCRA hazardous wastes. [RO 13641]

DOE mixed waste

Three main types of mixed wastes are generated or stored at DOE facilities:

  • High-level mixed wastes (HLMW)—HLMW generated at DOE facilities includes waste from reprocessing spent nuclear fuel and other radioactive materials. Due to their high radioactivity, these wastes are very dangerous to handle. In addition, they contain highly corrosive components, organics, or heavy metals that make them RCRA hazardous. DOE currently stores its HLMW in large tanks at the Hanford Reservation in Washington, the Idaho National Laboratory in Idaho, the Savannah River Site in South Carolina, and the West Valley Demonstration Project in upstate New York. DOE plans to treat HLMW using vitrification, which would convert the waste into a solid, glass-like substance that will greatly limit the dispersion of hazardous and radioactive components into the environment.
  • Transuranic (TRU) mixed wastes—TRU mixed wastes contain greater than 100 nanocuries per gram of radioactivity from elements with atomic numbers greater than 92 (the atomic number for uranium). These wastes typically pose greater radioactivity hazards than LLMW because they contain long-lived alpha radiation emitters. TRU mixed wastes are generated during nuclear weapons production, plutonium-bearing reactor fuel fabrication, and spent fuel processing. DOE is disposing its TRU mixed wastes at the Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico.
  • Low-level mixed wastes (LLMW)—LLMW (radioactive mixed waste that is not classified as high-level or TRU waste) is generated or stored at 37 DOE sites in 22 states as a result of research, development, and nuclear weapons production. Typical LLMWs are 1) cleaning and degreasing solvents and scintillation liquids (which typically contain toluene or xylene); 2) oil mixtures used in operation and maintenance activities (including used oil from radiologically contaminated equipment); 3) heavy metal-contaminated wastes such as shielding, ion-exchange resins, corrosion inhibitors, and decontamination resins; and 4) aqueous corrosive liquids.

Hazardous NARM is not mixed waste

NARM is not regulated under the AEA. That fact, combined with Congress’ definition of “mixed waste” in RCRA Section 1004(41), leads EPA to the conclusion that a NARM waste that is also RCRA hazardous does not meet the definition of a mixed waste. [June 1, 1990; 55 FR 22645] Such a waste would therefore only be regulated as a hazardous waste under RCRA and not a mixed waste subject to both RCRA and the AEA. [RO 14310] The radioactive portion of NARM, however, may be subject to state regulatory programs, and can limit your disposal options.

Specifically for TENORM, disposal is subject to the RCRA regulations if it is hazardous; this would include compliance with the land disposal restrictions (LDR) treatment standards. For the radioactive hazard, however, there are no federal waste disposal regulations specifically for TENORM wastes. Instead, numerous states have developed state regulations covering the disposal of this material. Some of these regulations are based on the suggested state regulations developed by the Conference of Radiation Control Program Directors. [Incidental TENORM: A Guidance for State Solid Waste Managers, APRIL 2011, available at http://astswmo.org/files/policies/Federal_Facilities/2011.04_FINAL_ASTSWMO_TENORM_Paper.pdf] Table 1 lists disposal options for TENORM waste.

Table 1

EPA’s regulatory interpretation regarding NARM is in agreement with DOE policy contained in DOE Order 5820.2A. According to the order, DOE waste consisting of NARM that has been mixed with RCRA listed hazardous waste or which exhibits a characteristic must only be managed as RCRA hazardous waste; DOE radioactive requirements do not apply. See also RO 12309.

The RCRA exclusion for radioactive materials

The §261.4(a)(4) exclusion unmistakably excludes source, special nuclear, and by-product material regulated under the AEA from the definition of solid waste; thus, such materials are not subject to RCRA regulation. However, the applicability of the exclusion to wastes that contain these materials in addition to being RCRA hazardous wastes (i.e., mixed wastes) was far from clear in 1980. Initially, DOE determined that the §261.4(a)(4) exclusion also applied to mixed wastes and, in fact, that all wastes (radioactive as well as nonradioactive) generated in DOE defense-related activities authorized under the AEA were excluded from RCRA hazardous waste regulation. [OSWER Directive 9990.0, June 1983]

However, DOE’s interpretation of the exclusion became untenable in the mid-1980s as a result of a federal court ruling [LEAF vs. Hodel, 586 F. Supp. 1163 (E.D. Tenn. 1984)]. In its ruling, the court concluded that the §261.4(a)(4) exclusion applies only to the radionuclides themselves within mixed wastes. If nonradioactive components of the waste make the material a RCRA hazardous waste, then the waste is regulated by both the AEA and RCRA. [EPA/530/K-02/022I] Accordingly, the hazardous component of mixed wastes is subject to RCRA and the radioactive component is subject to the AEA. [July 3, 1986; 51 FR 24504, RO 13452] This position was reiterated when EPA and NRC jointly published Guidance on the Definition and Identification of Commercial Mixed Low-Level Radioactive and Hazardous Waste, October 4, 1989, available from https://nepis.epa.gov/EPA/html/Pubs/pubtitleOSWER.html by downloading the report numbered 530SW90016.

DOE acquiesces

Of the three types of radioactive materials (i.e., source, special nuclear, and by-product material), by-products are usually the materials that actually are wastes. Of particular concern at DOE facilities is the AEA Section 11(e)(1) portion of the “by-product” definition. After EPA made its 1986 determination that only the radionuclides in mixed wastes are excluded under §261.4(a)(4), controversy erupted over the regulatory status of AEA Section 11(e)(1) by-product materials.

To clear up the confusion, DOE finalized an interpretation of AEA Section 11(e)(1) by-product material on May 1, 1987 [52 FR 15937] in 10 CFR 962.1–3, adopting EPA’s position that only the actual radionuclides dispersed or suspended in DOE mixed wastes (not the entire waste stream) are considered by-product material and therefore are excluded from RCRA. These radionuclides in by-product material are regulated under the AEA; the nonradioactive components of DOE wastes are subject to RCRA regulation if they are listed RCRA hazardous wastes or exhibit a characteristic. In other words, any mixed waste that is a RCRA hazardous waste and a radioactive waste (except for NARM) is regulated under both RCRA and the AEA. DOE believes that this approach gives “RCRA and the AEA the greatest capacity to regulate effectively the special type of hazard that each statute was designed to control.” [May 1, 1987; 52 FR 15940]

Based on the above interpretation, which is jointly shared by EPA, NRC, and DOE and is still current today, application of the exclusion for source, special nuclear, and by-product material is very limited.

AEA takes precedence over RCRA if conflicts occur

If the RCRA and AEA regulatory schemes conflict, RCRA Section 1006(a) specifies that RCRA must yield. In other words, the AEA requirement would take precedence, and the inconsistent RCRA requirement would be inapplicable. For example, a conflict may occur if compliance with a specific RCRA requirement would violate national security interests. In such situations, the AEA would take precedence and the RCRA requirement would be waived. [RO 12992]

Examples

Tritium (a radioactive isotope of hydrogen) is produced by activities regulated by NRC under the AEA and is considered a by-product material. The isotope is contained in toluene as a scintillation liquid. Is the scintillation cocktail a mixed waste when disposed?

Yes. Mixtures of tritium and toluene satisfy the definition of mixed waste because tritium is a low-level radioactive waste and the toluene is a hazardous spent solvent (F005) when the scintillation cocktail is discarded. [Guidance on the Definition and Identification of Commercial Mixed Low-Level Radioactive and Hazardous Waste, cited previously]

During operation of nuclear power plants, fission products, such as cesium-134 (Cs-134) and cesium-137 (Cs-137), build up in the cooling water systems. Potassium hexacyanocobalt(II)-ferrate(II), an insoluble granular chemical, is used as an ion-exchange media to remove Cs-134 and Cs-137 from the irradiated water before it can be released into the environment. Is unused potassium hexacyanocobalt(II)-ferrate(II) or the spent ion-exchange media subject to RCRA regulation?

The unused chemical is not currently listed as a P- or U-waste and does not appear to exhibit any hazardous characteristics. Therefore, discarded, unused potassium hexacyanocobalt(II)-ferrate(II) and any residues resulting from a spill of the chemical would not be RCRA hazardous wastes. However, the spent ion-exchange media may exhibit a hazardous characteristic (toxicity would be the most likely), depending on the composition of the water being treated. If the spent media exhibits such a characteristic, it would be a mixed waste and be subject to RCRA and the AEA. If the media does not exhibit a characteristic, it would be a radioactive waste subject only to AEA regulations. [RO 11965, 14016]

Chemicals are used in a production process at a DOE facility that are on the P- or U-lists of hazardous wastes or in the Part 261, Appendix VIII list of hazardous constituents. Should the facility assume that the low-level radioactive waste that is generated from this process is LLMW?

Low-level radioactive waste that contains hazardous constituents is not necessarily LLMW. In order for the low-level radioactive waste to be a mixed waste, the waste must contain a known listed waste or exhibit a characteristic. The intent of the P- and U-listings was to encompass only those materials that are being thrown away in their pure, unused form or as an off-specification variant; these listings do not apply to wastes which contain these materials as constituents. [May 19, 1980; 45 FR 33115] EPA lists wastes as hazardous if they contain significant quantities of the Part 261, Appendix VIII hazardous constituents and the agency determines that these constituents are persistent, mobile, and pose a substantial or potential threat to human health and the environment. [§261.11, RO 11144, 12014, 12296, 13290] The presence of one or more of these hazardous constituents within the low-level waste does not by itself render the waste hazardous. If the waste does not exhibit any characteristics, and generator knowledge shows that it does not contain an F-, K-, P-, or U-waste, the waste is not hazardous. [Guidance on the Definition and Identification of Commercial Mixed Low-Level Radioactive and Hazardous Waste, cited previously]

Mixed waste management under RCRA

Unless a facility can take advantage of the Part 266, Subpart N exemptions from RCRA for mixed waste, any facility that generates, stores, treats, or disposes mixed waste is subject to the full set of RCRA regulations. As discussed below, this includes RCRA storage, manifesting, land disposal restrictions, and corrective action requirements. However, a facility that generates less than or equal to 100 kg/mo of nonacute hazardous waste or 1 kg/mo of acute hazardous waste, including LLMW, is categorized as a very small quantity generator. As a result, most of the RCRA regulations do not apply to the management of that waste, and the LLMW can be disposed as low-level radioactive waste if the materials meet the disposal site’s waste acceptance criteria. [§262.14, August 7, 1995; 60 FR 40207] Case Study 1 evaluates the management of radioactive lead shielding under RCRA.

Case Study 1

Storage/accumulation

Facilities that store mixed waste are subject to the same RCRA hazardous waste storage rules as for any other hazardous waste. As such, a RCRA storage permit is necessary if mixed wastes generated onsite are stored for more than 90 days (for LQG facilities), 180 days (for SQG facilities), or 270 days (for SQGs that ship their waste over 200 miles to a TSD facility). If these time limits are not exceeded, the mixed waste may be accumulated in 90- or 180-day accumulation units subject to the §§262.16–17 requirements. In addition to accumulation, treatment of mixed wastes may occur in 90- or 180-day accumulation units to meet NRC disposal requirements and/or Department of Transportation (DOT) shipping rules. [RO 11598, 13297] Satellite accumulation units may be used for mixed waste accumulation if they comply with §262.15.

The daily and weekly inspection requirement for hazardous waste tanks and containers, respectively, remains in effect for accumulation of mixed waste. However, to minimize personnel exposure to radioactivity, such inspections may be made via remote monitoring devices, television monitors, etc. as opposed to walk-through inspections.

Draft guidance designed to help parties that store mixed waste comply with the RCRA and AEA requirements was issued in August 1995 by EPA and NRC (Joint Guidance on the Storage of Mixed Low-Level Radioactive and Hazardous Waste, August 7, 1995; 60 FR 40205).

RCRA storage provisions may be inapplicable

If certain conditions are met, storage and treatment of mixed waste at non-DOE facilities will not have to comply with the RCRA requirements noted above. Instead, such mixed waste storage/treatment will be subject only to NRC regulations.

Transportation

Mixed waste shipments must meet RCRA manifest requirements, unless shipping facilities are taking advantage of the Part 266, Subpart N conditional exemption from RCRA for mixed wastes. [§266.325] In that case, only NRC manifest and transportation regulations would apply. Of course, specific DOT provisions must be met for such radioactive mixed waste shipments, regardless of the applicability of RCRA manifesting requirements.

A medical research facility plans to send scintillation vials containing radioactive D001 waste offsite for treatment at a hazardous waste management facility operating under interim status. What are the manifesting requirements? Does the receiving facility need to amend its RCRA Part A permit application in order to receive the mixed waste?

The mixed waste must be manifested in compliance with both RCRA and AEA requirements. (The conditional exemption from RCRA manifesting applies only if the waste already meets the LDR treatment standards.) The receiving facility does not need to modify its Part A permit application as long as the facility already manages D001 waste and the units or processes in which the D001 wastes are handled will not change. However, the facility must comply with any applicable NRC licensing requirements if it begins storing radioactive mixed waste. [RO 12710]

Land disposal restrictions

Because mixed waste is hazardous waste, it is subject to the LDR program regardless of its radioactivity. As such, mixed waste must meet the appropriate LDR treatment standards for all applicable waste codes prior to land disposal. (The LDR treatment standards are listed in §268.40.) This poses two problems: 1) it may be technically difficult to achieve the treatment standards due to the nature of the mixed waste, and 2) it may be hard to consistently achieve the treatment standards given the requirements imposed under the AEA. To minimize these concerns, EPA has established specific treatment standards for certain mixed wastes, such as D008 radioactive lead solids and D009 elemental mercury contaminated with radioactive materials. If no special standards are listed in the §268.40 table, the normal treatment standards for the particular waste code apply. [June 1, 1990; 55 FR 22626, RO 14079]

If the treatment technologies used to develop the LDR treatment standard for a specific hazardous waste code are inappropriate due to the radioactive hazard posed by the mixed waste (i.e., a different treatment technology is required), a site-specific variance from the treatment standard may be sought under §268.44. In such a case, site-specific alternative treatment standards would be established if a variance is granted. [55 FR 22626]

Radioactive zirconium fines (that are pyrophoric) are generated at a DOE facility. What level of treatment would be required before land disposal of these wastes?

The material is both ignitable [under §261.21(a)(2)] and radioactive, making it a mixed waste. The LDR designation would be low-TOC D001 nonwastewater, with a treatment standard of deactivate and meet §268.48 standards for underlying hazardous constituents. Such wastes would have to be deactivated (e.g., stabilized) to remove the characteristic of ignitability and treated to reduce all underlying hazardous constituent concentrations to below universal treatment standards. Once this standard was achieved, the wastes could be legally land disposed, probably in an AEA landfill. [55 FR 22627]

LDR storage prohibition

RCRA Section 3004(j) prohibits the storage of any “prohibited” hazardous waste, including mixed waste, unless the waste is being stored to accumulate quantities necessary to facilitate proper waste recovery, treatment, or disposal. Section 268.50 implements this statutory requirement. A “prohibited” hazardous waste is a waste that will be land disposed but does not yet meet the LDR treatment standards. EPA has determined that when no viable treatment or disposal capacity for a hazardous waste exists, storage of the waste pending development of treatment/disposal capacity does not constitute storage to accumulate sufficient quantities to facilitate proper treatment or disposal. [August 29, 1991; 56 FR 42732] Therefore, the §268.50 storage prohibition applies to storage of mixed waste, even though treatment/disposal capacity for some of these wastes may not yet exist. The Federal Facilities Compliance Act of 1992 exempted certain DOE facilities storing mixed waste from §268.50; however, it did not exclude non-DOE and commercial facilities. [RO 14171] An example of the LDR storage prohibition is given in Case Study 2.

Case Study 2

On August 29, 1991 [56 FR 42730], EPA issued an enforcement policy stating that facilities storing mixed waste in violation of §268.50 due to a lack of available treatment or disposal capacity would be considered a low enforcement priority (except where risk to public health or the environment was involved). The enforcement policy applied to facilities that generated less than 1,000 ft3/yr of prohibited mixed waste. Although extended a number of times, EPA decided to let the policy expire on October 31, 2001. This date coincides (approximately) with the November 13, 2001 effective date of the conditional exemption from RCRA requirements for mixed waste managed at NRC-licensed commercial facilities. [May 16, 2001; 66 FR 27239]

Corrective action

Mixed waste is considered a solid waste for purposes of corrective action at solid waste management units (SWMUs). Therefore, units containing mixed wastes are SWMUs and subject to corrective action if there is a unit requiring a RCRA permit at the facility. [RO 12662, 12766, 12992]

2001 rule reduces dual regulation of LLMW

Regulated entities have long complained that the dual regulation of LLMW under both RCRA and NRC/DOE requirements is burdensome, duplicative, and expensive. Such facilities have also argued that 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 final rule on May 16, 2001 [66 FR 27218] that reduces 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 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 (summarized below).

In order 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, or 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 as nonradioactive, or 2) the LLMW is removed from storage.

Prior to storing LLMW under the storage and treatment exemption from RCRA, does the generator have to count the waste as hazardous? Does it have to be included on the biennial report?

Yes to both. “Prior to storage and/or treatment, all relevant regulations related to hazardous waste generators in Part 262 apply.” [May 16, 2001; 66 FR 27225]

A commercial facility is storing LLMW under the storage and treatment exemption from RCRA, but a quarterly inspection is missed, causing the exemption to be lost. Can the facility reclaim the exemption? What is the regulatory status of the waste while the exemption is lost?

A lost exemption can be reclaimed by once again meeting the exemption conditions and by notifying EPA that the exemption has been reclaimed. [§266.245] While the exemption is not in effect, the waste is subject to both RCRA and NRC requirements. However, EPA anticipates “that most generators will be able to correct a failure to meet the conditions within a 90-day period and reclaim the exemption, thus avoiding any practical effect of losing the storage and treatment exemption and becoming subject to RCRA Subtitle C regulations.” [May 16, 2001; 66 FR 27238]

A facility has a RCRA permit for a tank that has been storing the same LLMW since 1998. The facility begins taking advantage of the storage and treatment exemption from RCRA for that waste stream in first quarter 2002 but subsequently changes its operations, such that generation of the waste is discontinued. Does the facility have to close the tank under the RCRA-permitted closure plan?

No. Permitted storage units that have stored only LLMW before November 13, 2001, and which store conditionally exempt LLMW after that date, are not subject to RCRA closure requirements in Part 264. They would be subject only to NRC decommissioning requirements. [§266.260, May 16, 2001; 66 FR 27239] To effect this change, the facility should modify its RCRA permit via §270.42 at the time the LLMW becomes conditionally exempt.

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 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 in order 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 our conversations with EPA, 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 at a designated LLRWDF that is regulated and licensed by the NRC under 10 CFR Part 61 or by an NRC agreement state. In order 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 that 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.

A DOE facility treats the LLMW that it generates to meet LDR treatment standards. The treated waste is periodically analyzed per the facility’s waste analysis plan (WAP). Will the facility remain subject to the WAP if it successfully claims the transportation and disposal exemption?

Yes. Generators or owners/operators of permitted TSD facilities that plan to claim the transportation and disposal exemption remain subject to the waste analysis and WAP requirements of Part 268. [May 16, 2001; 66 FR 27258]

Mixed waste resources

A wealth of information on mixed wastes can be accessed via EPA’s mixed waste website at https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed-radiological-wastes#mixed. Available information includes mixed waste guidance, mixed waste treatment options, pollution prevention information, the effect of the LDR program on mixed waste, mixed waste shipping guidance, and much more.


COMPLIANCE
CORNER
 

Topic: De Minimis Wastewater Exemptions


©2019 McCoy and Associates, Inc. All rights reserved.

McCoy and Associates has provided in-depth information to assist environmental professionals with complex compliance issues since 1982. Our seminars and publications are widely trusted by environmental professionals for their consistent quality, clarity, and comprehensiveness.

 

Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.