Federal Register / Vol. 51, No. 128 / Thursday, July 3, 1986 / Notices

ENVIRONMENTAL PROTECTION AGENCY

[FRL-3041-3]

State Authorization To Regulate the Hazardous Components of Radioactive Mixed Wastes Under the Resource Conservation and Recovery Act

AGENCY: Environmental Protection Agency.

ACTION: Notice.

SUMMARY: The Environmental Protection Agency (EPA) is today publishing a notice that in order to obtain and maintain authorization to administer and enforce a hazardous waste program pursuant to Subtitle C of the Resource Conservation and Recovery Act (RCRA), States must have authority to regulate the hazardous components of "radioactive mixed wastes." "Radioactive mixed wastes" are wastes that contain hazardous wastes subject to RCRA and radioactive wastes subject to the Atomic Energy Act (AEA).

DATE: States which have received EPA authorization prior to the publicity date of this Notice must, within one year of the publication date of this notice (two years if a State statutory amendment is required) (i.e., by July 3, 1987 and July 5, 1988), demonstrate authority to regulate the hazardous components of radioactive mixed wastes. States initially applying for final authorization after July 3, 1987 must incorporate this provision in their application for final authorization.

FOR FURTHER INFORMATION CONTACT: Denise Hawkins, Office of Solid Waste (WH-563-B), U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. (202) 382-2210.

SUPPLEMENTARY INFORMATION:

A. Authorization of State Hazardous Waste Programs

Section 3006(b) of RCRA provides that States may apply to EPA for authorization to administer and enforce a hazardous waste program pursuant to Subtitle C of RCRA. Authorized State programs are carried out in lieu of the Federal program. However, EPA is authorized to implement the Hazardous and Solid Waste Amendments to RCRA (HSWA) (Pub. L 98-816) in authorized States until those States revise their programs to incorporate the HSWA requirements and receive EPA authorization to implement HSWA. Requirements for obtaining authorization are set forth in 40 CFR Part 271. To date, 41 States have received final authorization (not including HSWA).

B. Regulation of Radioactive Wastes

Section 1004(27) of RCRA excludes from the definition of "solid waste," "source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, as amended (AEA) (06 Stat. 923)." Since "hazardous waste" is defined by section 1004(5) as a subset of "solid waste," "source, special nuclear and byproduct material" are exempt from the definition of hazardous waste and thus from the Subtitle C program.

While source, special nuclear and byproduct material are clearly exempt from RCRA, the extent of the statute's applicability to wastes containing both hazardous waste and source, special nuclear or byproduct material has been less evident. The question of which wastes are encompassed by the term "byproduct material" has also been the subject of some controversy. We note that the definition of byproduct material is currently the subject of rulemaking by the Department of Energy (DOE). (50 FR 45736, November 1, 1985).

Given the lack of clarity on this issue, EPA did not previously require as a condition of State authorization that the State have regulatory authority over the hazardous components of radioactive mixed wastes. In authorizing States, EPA did not inquire into State authority over the hazardous components of radioactive mixed wastes and made no determination of whether States had authority over such wastes. Accordingly, the Agency has taken the position that currently authorized State programs do not apply to radioactive mixed wastes.

Thus, radioactive mixed wastes are not currently subject to Subtitle C regulations in authorized States.⁽¹⁾ EPA has now determined that wastes containing both hazardous waste and radioactive waste are subject to the RCRA regulation.

Today, we are hereby publishing notice that, pursuant to 40 CFR 271.9 (which requires State programs to regulate all wastes controlled under 40 CFR Part 261), radioactive mixed wastes are to be part of authorized State programs. States that already have authorized programs must revise their programs (if necessary) and must apply for authorization for hazardous components of radioactive mixed wastes. States must demonstrate to the appropriate EPA Regional Administrator that their program applies to all hazardous waste even if mixed with radioactive waste. This demonstration must be made within one year of the publication date of this notice.⁽²⁾ States initially applying for final authorization one year after the publication date of this notice must make this demonstration in their initial application.

In most cases, this will require only an interpretive statement by the State Attorney General, since most States have the same exception to the definition of "solid waste" as that contained in section 1004(27) of RCRA. Some States, however, may require statutory amendments in order to regulate the hazardous components of radioactive mixed wastes. Such States, if already authorized, must revise their programs within two years of the publication date of this notice. States initially applying that need a statutory amendment will have to obtain the amendment before submitting an application for final authorization.

In order to demonstrate regulation of the hazardous components of radioactive mixed wastes, States should submit to the appropriate Regional Administrator a copy of all applicable statutory and regulatory provisions, plus a statement by the State Attorney General to the effect that the State's hazardous waste program applies to wastes containing both hazardous waste and radioactive waste as defined by the AEA. If an agency other than the authorized hazardous waste agency will implement the radioactive mixed wastes program, the authorization application must include a description of the agency's functions (see 40 CFR 271.6(b)) and a Memorandum of Understanding between that agency and the authorized hazardous waste agency, describing the roles and responsibilities of each.

The DOE has proposed an interpretive definition of the term "byproduct material" (50 FR 45736, November 1, 1985), and is now evaluating public comment. Pending clarification of this issue, this matter will be addressed on a case-by-case basis.

We also note that section 1006 of RCRA precludes any regulation by EPA or a State which is inconsistent with the requirements of the Atomic Energy Act. EPA and the State may, therefore, on a case-by-case basis use the authority of § 1006 to modify hazardous waste requirements to address radioactive mixed wastes activities, pending issuance of EPA's regulation which will set forth procedures for addressing the inconsistency issue. In addition, EPA, the Nuclear Regulatory Commission (NRC), and DOE will be working together to develop guidance.

Notwithstanding any other provision of law, all requirements of the AEA and all Executive Orders concerning the handling of restricted data and national security information, including "need-to-know" requirements, shall be applicable to any grant of access to classified information under the provisions of RCRA.

Dated: June 30, 1980
J. Winston Porter,
Assistant Administrator for Solid Waste and Emergency Response.
[FR Doc. 86--15250 Filed 7-2-86; 12:16 pm
BILLING CODE 6560-50-M

1. The exception to this is in the use of EPA's HSWA authorities in authorized States. EPA can use its HSWA authorities to supplement an authorized State's authority over RCRA-regulated units. Under §3004(u). EPA can jointly Issue a permit with the State and impose corrective action requirements on hazardous waste management units and solid waste management units (swmu's) at facilities that contain units subject to RCRA. Although hazardous components of radioactive mixed wastes are not RCRA-regulated under authorized State RCRA programs, radioactive mixed waste will be considered to be a "solid waste" for purposes of corrective action at solid waste management units. The Federal definition of "solid waste" is to be used in determining what units are swmu's, because State definitions were not scrutinized. Therefore, in order to obtain authorization for corrective action, States must obtain authorization for their definition of solid waste, which may not exclude hazardous components of radioactive mixed wastes. Because radioactive mixed waste is considered a solid waste under the Federal RCRA program, units containing radioactive mixed waste are swmu's and are subject to corrective action if there is another unit requiring a RCRA permit at the facility. RCRA enforcement activities also apply. Return to Document

2. EPA is not promulgating a regulation today. However, in light of the Agency's previous policy, we believe it is appropriate to provide the time allowed by 40 CFR 271.22(e)(2) for State program modifications to conform to regulatory changes. Note that EPA has proposed to amend 40 CFR 271.21 to allow States until July 1 of each year to incorporate changes to the Federal program that occurred in the preceding 12 months. Where statutory changes are necessary, an additional year would be allowed (51 FR 496-504, January 6, 1988). EPA will allow States to use this "clustering" approach for radioactive mixed wastes if and when the revisions to § 271.21 are finally promulgated. Return to Document