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ENVIRONMENTAL PROTECTION AGENCY

Veterans Affairs Department

CFR Citation: 40 CFR Chapter 1

RIN ID: RIN 2060-AL71

FRL ID: [FRL-7585-6]

NOTICE: Part II

DOCUMENT ACTION: Advance notice of proposed rulemaking (ANPR).

SUBJECT CATEGORY: Approaches to an Integrated Framework for Management and Disposal of Low-Activity Radioactive Waste: Request for Comment

DATES: To ensure that your comments will be considered in future actions related to this document, please submit your comments no later than March 17, 2004.

DOCUMENT SUMMARY: This Advance Notice of Proposed Rulemaking (ANPR) requests public comment regarding options to promote a more consistent framework for the disposal of radioactive waste with low concentrations of radioactivity (``lowactivity''). Of immediate interest is lowactivity mixed waste (LAMW). This waste is both chemically hazardous according to the Resource Conservation and Recovery Act (RCRA) and is radioactive with low radionuclide concentrations under the purview of the Atomic Energy Act of 1954 (AEA). Such waste is regulated and managed under both authorities but under certain conditions, one authority may be sufficient to provide public health and environmental protection. In particular, given appropriate limits on radionuclide concentrations in LAMW, disposal of LAMW in RCRA Subtitle C hazardous waste landfills, with their prescribed engineering design and associated RCRA requirements (e.g., waste treatment, waste form), may provide protection of public health and the environment. This document focuses on effective use of the RCRAC disposal technology for the disposal of LAMW. We (the Environmental Protection Agency) seek comment on standards that would codify this approach and provide greater flexibility for the safe disposal of LAMW.

Beyond LAMW, however, there is a wide variety of radioactive wastes with relatively low concentrations of radioactivity; these wastes are not considered mixed wastes because they are not regulated under both RCRA and the AEA. Examples of such lowactivity waste include certain AEA radioactive wastes, certain wastes from the extraction of uranium or thorium (such as those generated by the Formerly Utilized Sites Remedial Action Program (FUSRAP)), a variety of wastes that fall into the technologically enhanced naturally occurring radioactive materials (TENORM) category, and certain decommissioning wastes. Some AEA wastes are deferred from regulation, such as ``unimportant quantities'' of source material with less than 0.05 percent uranium or thorium, and would be characterized as another form of lowactivity radioactive waste (LARW, of which lowactivity mixed waste would be a subset). Some radioactive wastes are regulated strictly down to the last atom while other lowactivity wastes are regulated primarily for their chemically hazardous constituents. Some of these wastes may be unregulated or regulated under a framework lacking clarity and consistency. We seek comment on possible regulatory and nonregulatory options to provide a more coherent framework to manage LARW, and information to improve the scientific characterization of such wastes.

We envision that any standards promulgated to address the use of the RCRAC disposal technology for LAMW (or, more broadly, LARW) would offer a new disposal option for these wastes. This would provide the flexibility to allow States, disposal facility operators, and waste generators to account for specific State or local regulatory constraints and economic considerations in determining whether they would choose to implement this disposal option for protective management and disposal of these wastes.

SUMMARY: Environmental Protection Agency,

SUPPLEMENTAL INFORMATION

I. General Information

A. How Can I Get Copies of Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. OAR20030095. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 5661744, and the telephone number for the Air and Radiation Docket is (202) 5661742.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/. It will also be available, along with general information relevant to this ANPR, such as Frequently Asked Questions (FAQ), through EPA's Radiation Program Home Page at http://www.epa.gov/radiation/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select ``search,'' then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public
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docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.A.1.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

B. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments, but will do so at its discretion.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket , and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select ``search,'' and then key in Docket ID No. OAR 20030095. The system is an ``anonymous access'' system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment.

ii. Email. Comments may be sent by electronic mail (email) to aandrDocket@epa.gov, Attention Docket ID No. OAR20030095. In contrast to EPA's electronic public docket, EPA's email system is not an ``anonymous access'' system. If you send an email comment directly to the Docket without going through EPA's electronic public docket, EPA's email system automatically captures your email address. Email addresses that are automatically captured by EPA's email system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.B.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Air and Radiation Docket, Environmental Protection Agency, EPA West Room B108, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR20030095.

3. By Hand Delivery or Courier. Deliver your comments to: Air and Radiation Docket in the EPA Docket Center, EPA West Room B108, 1301 Constitution Ave., NW., Washington, DC, 20004, Attention Docket ID No. OAR20030095. Such deliveries are only accepted during the Docket's normal hours of operation as identified in Unit I.B.

4. By Facsimile. Fax your comments to (202) 5661741, Attention Docket ID. No. OAR20030095.

C. How Should I Submit CBI to the Agency?

Do not submit information that you consider to be Confidential Business Information electronically through EPA's electronic public docket or by email. Send or deliver information identified as CBI only to the following address: Dan Schultheisz, U.S. Environmental Protection Agency, Office of Radiation and Indoor Air, Mailcode: 6608J, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR20030095. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. [[Page 65122]]
D. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Acronyms and Abbreviations

We use many acronyms and abbreviations in this preamble. For your convenience and reference, they are:

AEAThe Atomic Energy Act

AECThe Atomic Energy Commission

ANPRAdvance notice of proposed rulemaking

CED(E)Committed effective dose (equivalent)

CERCLAComprehensive Environmental Response, Compensation, and Liability Act (also known as Superfund)

CFRCode of Federal Regulations

DOEThe United States Department of Energy

EPAThe United States Environmental Protection Agency

FRFederal Register

FUSRAPFormerly Utilized Sites Remedial Action Program

GTCCGreaterThanClass C lowlevel radioactive waste

HWIRHazardous Waste Identification Rule

LAMWLow activity mixed waste

LARWLow activity radioactive waste

LLRWLowlevel radioactive waste

MCLMaximum Contaminant Level

MLLWMixed lowlevel radioactive waste

MWMixed waste

NESHAPSNational emission standards for hazardous air pollutants

NRCThe United States Nuclear Regulatory Commission

OMBThe Office of Management and Budget

ORIAEPA's Office of Radiation and Indoor Air

OSWEPA's Office of Solid Waste

OSWEREPA's Office of Solid Waste and Emergency Response

RCRAThe Resource Conservation and Recovery Act

RCRACSubtitle C of RCRA

TEDETotal effective dose equivalent

TENORMTechnologically Enhanced Naturally Occurring Radioactive Materials

TRUTransuranic waste

TSCAToxic Substance Control Act

UMTRCAUranium Mill Tailings Radiation Control Act

USACEUnited States Army Corps of Engineers

UTSUniversal Treatment Standards

What Do We Mean by Certain Terms?

Throughout this ANPR, we refer to ``LowLevel Radioactive Waste,'' ``Mixed Waste,'' ``LowActivity LowLevel Radioactive Waste,'' ``Low Activity Mixed Waste,'' and ``LowActivity Radioactive Waste.'' Each of these terms has a distinct meaning within the context of this document (though not necessarily a regulatory or statutory definition). We want to avoid confusion wherever possible, so we offer these definitions to help you better understand the discussion.

When we say ``LowLevel Radioactive Waste'' (or LLRW), we always mean a specific kind of radioactive material defined at section 2(16) of the Nuclear Waste Policy Act as radioactive waste that is not spent nuclear fuel, highlevel waste, transuranic waste, or uranium and thorium mill tailings. Under 10 CFR part 61, ``Licensing Requirements for Land Disposal of Radioactive Waste,'' the NRC regulates disposal of LLRW in nearsurface disposal facilities. The NRC has defined three classes of LLRW in part 61 (classes A, B, and C) based on their radionuclide content and halflife. Under the part 61 waste classification and disposal site design, siting, and waste acceptance scheme, waste with radionuclide content that exceeds Class C still is regulated as LLRW, but generally is not acceptable for nearsurface disposal. The Department of Energy (DOE) regulates LLRW under its own AEA authority (see DOE Order 435.1).

When we say ``Mixed Waste'' (or MW), we always mean waste that is regulated under both the Resource Conservation and Recovery Act (RCRA) as hazardous waste and under the AEA as radioactive material. This document is concerned only with MW containing LLRW, socalled mixed lowlevel waste (MLLW). MLLW can include LLRW Classes A, B, and C, and greaterthanclass C. NonAEA radioactive wastes mixed with hazardous waste are not technically MW, although they may be managed in a similar way.

We are introducing today the term ``lowactivity'' to represent the idea that some radioactive wastes may contain radionuclides in small enough concentrations to allow them to be managed in ways that are fully protective of public health and the environment but do not require all of the radiation protection measures necessary to manage higheractivity radioactive material. As used in this document, ``low activity'' is a conceptual term that does not have a statutory or regulatory meaning. This document outlines and requests public comment on methods that could be used in future actions to define ``low activity'' wastes. ``Lowactivity'' wastes would be subsets of broader waste categories, such as those defined previously. This document discusses several types of ``lowactivity'' waste, including: [sbull] ``Lowactivity'' LLRW;
[sbull] ``Lowactivity'' MW (LAMW);
[sbull] ``Lowactivity'' radioactive waste (LARW)this is a broad category that includes lowactivity LLRW and LAMW, as well as other wastes such as those primarily regulated at the State level (e.g., TENORM wastes, where the term ``technologically enhanced'' means that human activity has concentrated the natural radioactivity or increased the potential for human exposure).

Finally, when we say ``byproduct material'' we are using the definition in section 11e of the AEA. The discussion in section III of this document focuses on ``preUMTRCA byproduct materials'' not regulated by the NRC. (``PreUMTRCA byproduct materials'' are tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content that NRC has concluded are outside its jurisdiction under section 11e.(2) of the AEA. This is discussed further in section III.B of this document. The FUSRAP cleanups address much of the preUMTRCA byproduct material.)

Questions for Public Comment

Consistent with the purpose of an Advance Notice of Proposed Rulemaking, we are asking many questions about the concepts described in this document. Because this document covers a broad variety of topics and possibilities, we note throughout the text the issues on which we would like public comment. We
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have also collected questions at the end of sections II, III, and IV, and additional questions may be found in the ``Request for Information'' sections (see the ``Outline of Today's Action''). The questions at the end of each section are focused on the material presented in those sections; however, commenters may feel that information in a later section is relevant to a question in an earlier section, or vice versa. We encourage commenters to address the questions as they believe most appropriate. Further, we welcome comments on any aspect of the text, not just on those points for which we specifically request comment. However, to facilitate our evaluation of and response to public comment, we ask that commenters clearly identify which issue(s) they are addressing and refer to relevant portions of the text in their comment.
Outline of Today's Action
I. Why Are We Publishing Today's ANPR?

II. How Can the Disposal of LAMW be Simplified?

A. What Needs to be Done to Allow Protective Disposal of LAMW?

1. Assess Characteristics of LAMW

2. Assess Alternative Disposal Methods

a. RCRA Subtitle C Land Disposal

b. Establish a Risk or Dose Basis for Allowable Concentrations

3. Coordination with Nuclear Regulatory Commission

B. Why is There a Need to Simplify Disposal of LAMW?

1. Dual Regulatory Structure

2. Recent EPA Mixed Waste Actions

C. How Would the RCRA Regulatory Framework Support a Viable Disposal Concept?

1. Technological Basis for Disposal (RCRA Hazardous Waste Landfill Criteria)

2. RCRA Treatment Standards

3. RCRA Disposal Facility Operating Standards

4. How does AEA Licensing Compare to RCRA Permitting?

D. What Methods Could be Used to Assess the Risk of Disposing of LAMW?

1. Modeling as a Basis for Establishing Risk or Dose Basis

2. Comparison of Risks from Radioactive and Hazardous Waste Disposal

3. Modeling Scenarios

a. Situations to be Addressed

b. Longterm Disposal Cell Performance

i. General Discussion

ii. ``Wet'' and ``Dry'' Sites

iii. Modeling Timeframe

c. ``OffNormal'' Events

d. Disposal Facility Worker

e. Transportation Worker

f. PostClosure Site Use

4. Other Considerations Affecting Risk Analysis

a. Use of Part 61 Classification System

b. Waste Form and Packaging

c. Activity Caps

d. Unity Rule

5. Risk or Dose Basis for a LAMW Standard

E. What Legal Authority Does EPA Have Under the AEA?

F. What Regulatory Approaches Could NRC Take With Respect to LAMW?

1. Regulatory Approaches That Could Apply to RCRA Facilities

2. Regulation of LAMW Generators

G. How Might DOE Implement a LAMW Standard?

1. DOE's ``Authorized Limits'' System

2. DOE's Radiological Control Criteria

H. How Would States Implement the Standard?

1. Would States be Required to Implement the Standard?

2. State Programs

a. Facility Permitting/Public Participation

b. Implementation at the Disposal Facility

c. Agreement States d. NonAgreement States

3. Regional LowLevel Radioactive Waste Compacts

I. Request for Information: LAMW

J. Background Information Regarding LAMW

1. Commercial LAMW

2. DOE LAMW

K. Questions for Public Comment: Disposal Concept for LAMW III. Is it Feasible to Dispose Other LowActivity Radioactive Wastes (LARW) in Hazardous Waste Landfills?

A. How Would the Proposed Disposal Concept Apply to Other Low Activity Radioactive Wastes?

1. From a Technological Perspective

2. PreUMTRCA Byproduct Material

3. TENORM

4. LowActivity LLRW/Source Material Exempted by NRC

B. What Legal and Regulatory Issues Might Affect Applying the RCRAC Disposal Concept to Other LowActivity Radioactive Wastes?

1. Lack of Federal Regulation

2. How They are Regulated Now

a. PreUMTRCA Byproduct Material (FUSRAP)

b. TENORM

3. Existing Federal Regulation (LowActivity LLRW)

4. Potential for a New ``Class'' of Disposal Facilities

C. Request for Information: Other LARW

D. Background Information Regarding Other LARW

1. PreUMTRCA Byproduct Material (and FUSRAP)

2. TENORM

3. LowActivity LLRW/Source Material Exempted by NRC

4. Decommissioning Wastes

E. Questions for Public Comment: Disposal of Other LARW in Hazardous Waste Landfills
IV. What NonRegulatory Approaches Might be Effective in Managing LAMW and Other LowActivity Radioactive Wastes?

A. General Discussion

1. Advantages and Disadvantages of NonRegulatory Approaches

2. Examples of Existing EPA NonRegulatory Programs

3. National Academy of Sciences Studies

B. NonRegulatory Approaches for LAMW and Other LowActivity Radioactive Wastes

1. Develop Guidance

2. Partner with Selected Stakeholders to Develop WasteSpecific ``Best Practices'

C. Request for Information: NonRegulatory Alternatives to Our Disposal Concept

D. Questions for Public Comment: NonRegulatory Alternatives to Our Disposal Concept

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review I. Why Are We Publishing Today's ANPR?

Today's ANPR introduces a variety of approaches that might be applicable to certain lowactivity radioactive waste categories (LARW).\1\ We (the Environmental Protection Agency) seek public comment on the appropriateness of these approaches towards a coherent framework assuring appropriate management and disposal of such a diverse set of LARW. As discussed below, our intent is to develop a regulatory framework applicable to all LARW, which could include disposal of LARW at RCRA facilities, whether radioactive material addressed by the Atomic Energy Act under the jurisdiction of NRC or not. Our more immediate focus regards a simpler but protective approach to the present dual regulatory system applicable to lowactivity mixed waste (LAMW). We seek comment on approaches that would reduce the burden of the dual regulatory framework for LAMW. One possibility would be to establish a regulatory framework to allow, under certain conditions, the disposal of LAMW at hazardous waste landfills under the purview of Subtitle C of RCRA. Under this approach, we and NRC could reach agreement on the appropriate conditions under which such disposal could take place. Ideally, the conditions that would apply to disposal of lowactivity waste would be much simplified over those requirements that now apply to lowlevel waste disposal facilities which allow the disposal of higher concentrations of radioactive material. Upon such agreement, NRC would need to take regulatory action to allow AEA material under its jurisdiction to be sent to Subtitle C landfills. This would, in
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effect, expand the disposal options available for LAMW.
\1\ It is important to understand that the term ``lowactivity'' does not have a precise statutory or regulatory definition. We use the term throughout today's action to refer to wastes in which the radioactivity is low enough to potentially allow management alternatives that do not incorporate the entire range of radiation control practices, such as disposal at RCRA Subtitle C landfills. The situations and conditions that would define ``lowactivity'' waste are the subject of today's action and potentially future rulemakings.

We recently took a similar approach to minimize dual regulation for mixed waste. Recognizing the compliance difficulties associated with the dual regulatory framework applicable to mixed waste, we promulgated subpart N to 40 CFR part 266 (``Conditional Exemption for LowLevel Mixed Waste Storage, Treatment, Transportation and Disposal''). (See 66 FR 27218, May 16, 2001.) This conditional exemption provides for a reduced regulatory burden for facilities that store, treat, transport, or dispose of mixed lowlevel waste (MLLW). Under certain conditions, certain mixed wastes are exempt from RCRA regulation, leaving only the requirements of the AEA to govern their storage, treatment, transportation.

In addition to LAMW, there are a variety of wastes with relatively low concentrations of radioactivity such as certain TENORM waste, certain AEA materials and certain decommissioning wastes for which the present institutional framework is less than clear. Some wastes are tightly regulated from origin through final disposal while others are presently unregulated. These wastes present a variety of radiological risks and, ideally, wastes with similar risks should be managed proportionately to the risk they represent. In this regard, there are a variety of tools that may achieve acceptable risk levels, with regulatory controls being one such tool. However, we recognize that other tools, such as voluntary guidance, ``best practices,'' industry standards, and the like have the potential to result in acceptable risk levels. In section III of this document, we seek comment on the use of these nonregulatory approaches for assuring and achieving acceptable risk levels from the disposal of these various wastes and what role EPA should play in creating a consistent and protective framework for limiting risk. Just as importantly, our ANPR seeks information regarding the characterization of wastes that fall in these categories, or information on other wastes that might be considered in conjunction with those named in this ANPR. Such information can only help to better characterize the risk inherent in these waste categories and lead to a more consistent, protective institutional framework.

We believe that the approach presented in today's action could provide the necessary flexibility for the safe disposal of LAMW and other LARW and might facilitate site cleanups. Informal discussions with various stakeholders (commercial mixed waste generators, DOE, disposal facility operators, State regulators, public interest groups) suggest a broad level of interest in the potential advantages of this approach. Today's document offers an opportunity for stakeholders to provide detailed comment on a variety of concepts and possibilities that could be used in a future rulemaking. If affected entities demonstrate support for such a rulemaking and provide information needed to develop technical and economic analyses, we would have a strong basis to pursue this effort beyond the ANPR stage. Similarly, NRC could use the approach described in this document to develop regulations addressing the disposal of LAMW or other low activity radioactive wastes from its (or Agreement State) licensees. In an effort that may affect the disposal of LARW, NRC held a workshop on May 2122, 2003, to discuss alternatives for safely controlling solid materials that have no, or very small amounts of, radioactivity. One alternative for that material is placement in a RCRA Subtitle C (hazardous waste) or Subtitle D (solid waste) disposal facility. Therefore, some of the issues discussed in that workshop may be similar to some of the approaches discussed in this ANPR. Background materials (including the information collection efforts conducted by NRC) and current activities (including recent documents issued and plans for stakeholder input), as well as transcripts of the workshop, can be found at http://ruleforum.llnl.gov/cgibin/rulemake?source=SM_RFC&st=ipcr .

II. How Can the Disposal of LAMW Be Simplified?

As noted above, we have recently promulgated regulations that describe conditions under which RCRA defers to the NRC and Agreement State requirements under the AEA for the storage, treatment, transportation, and disposal of mixed lowlevel waste. We based this deferral on our determination that the AEA requirements as addressed by NRC's regulations for management of radioactive waste offered an adequate degree of human health and environmental protection when compared to that offered by RCRA for the hazardous components of MLLW. Our RCRA authority is much more comprehensive and wideranging than our AEA authority. Under RCRA, we define hazardous waste and regulate hazardous waste generation, transportation, treatment, and disposal, including the operation of facilities handling hazardous waste. However, RCRA specifically excludes certain AEA material from its jurisdiction (40 CFR 261.4(a)(4)). Under the AEA, for the protection of the general environment, we can establish generally applicable radiation protection standards that apply outside the boundaries of locations under the control of persons possessing or using radioactive material. NRC and DOE are responsible for establishing requirements for disposal of AEA material by such persons. For example, we have used this AEA authority to establish effluent release limits from facilities comprising the uranium fuel cycle in 40 CFR part 190. In the case of lowactivity mixed waste a dual regulatory framework already exists to address the storage, treatment, transportation, and disposal of such waste. With the promulgation of subpart N to 40 CFR part 266, some of these requirements are eased but widespread implementation of this rule awaits adoption by the States before it can be implemented. (See 66 FR 27257, May 16, 2001.)

In an effort to further reduce the burden of this dual regulatory framework for mixed waste, one option would be to promulgate a standard (such as regulatory limits for radionuclides in the waste) in coordination with the NRC allowing the disposal of LAMW in Subtitle C (hazardous waste) RCRA landfills. We believe an appropriate rulemaking by EPA and NRC of this nature will achieve the same level of protectiveness while at the same time significantly reducing the effort (and cost) otherwise required to comply with two separate regulatory regimes. We focus on disposal because we are aware of a few thousand small generators who store their mixed waste indefinitely because of the lack of disposal options, or the high costs of disposal. We are concerned that this situation may lead to mishandling, illegal dumping, or the elimination of research on, and use of, medical diagnostic techniques resulting in less than optimum health care. A protective regulatory framework that is less expensive and less burdensome would encourage prompt disposal of such waste, avoiding the risks of mishandling and illegal disposal, while improving options for health care. Some Subtitle C treatment standards for land disposal result in stabilized, solidified, or vitrified treatment residues that will immobilize radiological components, as well as hazardous constituents. Also, RCRA requires landfills to have certain engineered barriers to minimize infiltration and prevent releases. These factors make disposal of LAMW in RCRA hazardous waste landfills an
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attractive approach for a rulemaking. The key in this approach would be to determine what concentrations of radioactivity in LAMW are appropriate for disposal in a RCRA Subtitle C landfill. As the preamble to subpart N to 40 CFR part 266 noted, an evaluation of the requirements embodied in the respective regulatory frameworks for RCRA and AEA revealed that both offer significant protections to human health and the environment. (See 66 FR 27223, May 16, 2001.) In the following sections, we discuss more fully the option of pursuing a rulemaking allowing disposal of LAMW in a RCRA Subtitle C landfill. A. What Needs To Be Done To Allow Protective Disposal of LAMW?

Because mixed waste contains both a hazardous chemical component and a radioactive component, the safe disposal of lowactivity mixed waste must combine elements pertinent to both types of hazards. The RCRA regulatory standards and permitting process provide for control of the chemically hazardous waste components. If EPA pursues rulemaking for the disposal of LAMW, we would focus on the controls necessary to ensure protective disposal of the radioactive component of the waste. We do not propose to change, either directly or indirectly, any of the RCRA provisions regulating the disposal of the chemically hazardous components of the waste. For the radioactive component of the waste, limits on the concentration of radiological waste that can be disposed of in a RCRA Subtitle C landfill may be the most straightforward method to use. These limits would be protective of the public health and would take into account the waste forms derived from the RCRA treatment standards and the design and performance of engineered barriers associated with such landfills.

1. Assess Characteristics of LAMW

The characteristics of lowactivity mixed waste are important factors in determining whether a given disposal concept will be appropriate. By ``characteristics'' we mean the properties that will influence our technical analysis of LAMW disposal, because they affect the way the waste will behave in a Subtitle C disposal cell and potential radiation exposure to people. Properties of interest will include physical form and chemical composition of the wastes, and radionuclide content (specific radionuclides and their concentrations).

There is limited information available on mixed waste, particularly when compared to waste that is only lowlevel radioactive or RCRA hazardous. The most comprehensive survey of commercial mixed waste was conducted by NRC and EPA in 1992 (``National Profile on Commercially Generated LowLevel Radioactive Mixed Waste,'' NUREG/CR5938). A summary of this survey is available at http://www.epa.gov/radiation/mixedwaste/natprof.htm. NRC indicated that, based on 1990 practices,
commercial facilities generated about 3,950 cubic meters of mixed waste annually and held another 2,120 cubic meters in storage. The profile divides mixed waste properties and generation into five categories: medical facilities, academic institutions, government institutions, industrial facilities, and nuclear power plants. For various reasons, such as improved waste management practices and information collected by a few States, we believe the volumes of mixed waste being generated today may be significantly lower than those described in NRC's profile. For example, when developing our mixed waste rule of May 2001, our discussions with mixed waste generators suggested that the industry has recognized the limited progress in developing mixed waste treatment and disposal capacity and taken steps to reduce mixed waste generation in order to reduce the associated financial and regulatory burden.

Mixed waste (and therefore LAMW) is also generated by DOE. In fact, DOE has a legacy of environmental and process wastes requiring disposal and significant volumes are expected in the future as DOE sites undergo continued cleanup. As discussed in more detail later (see section II.J), DOE has indicated that tens of thousands of cubic meters of low level radioactive waste that is mixed waste (MLLW) may be considered for disposal in commercial disposal facilities. Some fraction of this waste may have concentrations low enough to qualify as LAMW. The approach presented in this ANPR may also facilitate the cleanup of contaminated DOE sites in a protective, expedited, and costeffective manner. We request comment on the application of a rulemaking based on this approach to DOE LAMW.

We encourage mixed waste generators to give us their perspective on the current status of mixed waste generation, storage, and disposal. In particular, we would like to know whether generators believe the 1992 EPA/NRC profile accurately describes the state of mixed waste generation today and how their mixed waste experience compares to that profile. Further, since an approach using radionuclide concentration limits to define LAMW for disposal at Subtitle C facilities may be the most workable, we would like generators to tell us which radionuclides are of most concern to them and the concentrations that would address a significant portion of their waste (e.g., what concentration of a particular radionuclide is found in 25%, 50%, 75% of a generator's waste).

2. Assess Alternative Disposal Methods

Because we are focusing on simplifying disposal of LAMW, we must assess the suitability of land disposal methods that have features that could contribute to containment and isolation of low concentrations of radionuclides or treated hazardous constituents. Disposal facilities meeting this description would include:
[sbull] Lowlevel radioactive waste facilities licensed under 10 CFR part 61;
[sbull] Hazardous waste disposal facilities permitted under RCRA Subtitle C;
[sbull] Uranium mill tailings facilities operating under 10 CFR part 40; and
[sbull] Solid waste disposal facilities permitted under RCRA Subtitle D.

Today's ANPR focuses on hazardous waste facilities permitted under RCRA Subtitle C. We do not see a need to address lowlevel waste facilities, which are licensed with conditions on acceptable radionuclides and concentrations (which may vary for each licensed facility). Further, the rule we issued in 2001 at 40 CFR part 266, subpart N established conditions under which mixed waste could be sent to an NRC or Agreement State licensed lowlevel waste facility without requiring a RCRA permit. Similarly, while NRC has explored the possibility of allowing mill tailings facilities to accept RCRA hazardous and lowlevel radioactive waste, those facilities are not generally able to accept either without sitespecific licensing. Finally, at this time, we do not expect to extend our disposal concept to RCRA Subtitle D (nonhazardous solid waste) landfills. However, the most recent EPA standards for such facilities (40 CFR part 258) require them to have engineered features that are similar in many ways to Subtitle C facilities. Further, our recent Hazardous Waste Identification Rule (HWIR) effort was intended to identify levels at which hazardous constituents pose a sufficiently low risk that they may be sent to Subtitle D facilities. (See 66 FR 27266, May 16, 2001.) We also note that NRC, in collaboration with the State of Michigan, has recently concluded that certain very lowactivity wastes from the decommissioning of the Big Rock Point nuclear facility may be sent to a [[Page 65126]]
Subtitle D landfill. (See 66 FR 6356763568, December 7, 2001.) Other States have also determined that Subtitle D facilities may offer sufficient protection for certain types of radioactive material.\2\ Therefore, we request comment on the suitability of Subtitle D facilities for low concentrations of radionuclides, under what conditions such disposal would be appropriate, and how comparable Subtitle D and Subtitle C facilities should be considered. We also request comment on the suitability of other types of disposal facilities not mentioned above.
\2\ The State of Texas allows certain radioactive material with halflife less than 300 days to be disposed in solid waste
landfills. (See Texas Administrative Code, Title 25, Chapter 289, Section 202(fff).) In 2001, the Radiation Focus Group of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) stated ``Currently, prohibitions against all radioactive materials are too broad'' and that ``the list of radioactive materials that should be excluded from landfills * * * should include only wastes that are longlived, and/or soluble, or otherwise pose a significant hazard.'' (``Detection and Response to Radioactive Materials at Municipal Solid Waste Landfills,'' Final Report, July 18, 2001.)

a. RCRA Subtitle C Land Disposal. The design requirements for RCRA Subtitle C hazardous waste landfills include engineered barriers (e.g., liners, see 40 CFR part 264, subpart N) while the hazardous waste itself must be treated to meet the land disposal restriction (LDRs) requirements. (See 40 CFR part 268.) Determining when disposal of LAMW at Subtitle C landfills is appropriate could involve deriving limiting radionuclide concentrations in the waste through modeling the performance of these disposal cells. We would consider the effectiveness of the RCRApermitted landfill disposal cells under a variety of performance and release scenarios. These performance scenarios would take these design and waste treatment requirements into account and would anticipate the range of sitespecific conditions at disposal sites that may occur in practice. The scenarios could assess performance of the RCRA Subtitle C design with respect to groundwater contamination under various climatic and hydrogeological conditions.

Scenarios could also evaluate worker exposure situations, including both the worker at the disposal site and the transportation worker. RCRA facilities are highly regulated and implement measures to protect workers against associated hazards. The personal protective equipment provided to RCRA workers might be expected to offer some protection against radiological constituents. Presuming low concentrations of radionuclides (which we would expect would keep exposures well below those allowable for workers at AEAlicensed disposal facilities), these workers might not need to be considered as occupational workers for the purposes of a radiation protection program under NRC regulations. Indeed, if the benchmark for exposure is low enough, from a radiological perspective, these workers would be more like members of the general public in the exposures they would be likely to receive (requirements related to RCRA hazardous waste would still apply). Other scenarios could also be considered as appropriate to assure the protection of the public health and the environment. Consequently, this approach would establish concentration limits appropriate for RCRA Subtitle C landfills accepting LAMW without requiring sitespecific performance assessments. As a point of reference, consistent with the concept of LAMW (and ``lowactivity'' waste in general), radionuclide concentration limits would not exceed the values NRC has established for Class A radioactive waste, as described in 10 CFR 61.55. (See 47 FR 57473, December 27, 1982.) See section II.D for a more detailed discussion of our concept for modeling.

b. Establish a Risk or Dose Basis for Allowable Concentrations. The basic modeling scenarios provide a method for identifying appropriate riskor dosebased concentration limits on radionuclides in LAMW.\3\ However, we still must consider the appropriate level of risk or dose on which the concentrations would be based. We are considering a number of factors in selecting an appropriate level, including other risk management decisions for radiation protection. In this regard, we are also working with NRC to understand how risk considerations will be incorporated into NRC's selection of a regulatory approach. We give more detail on these factors in section II.D.4.
\3\ A ``riskbased'' limit would consider the probability that a person being exposed to radiation would develop a health effect. A ``dosebased'' limit would consider the amount of radiation exposure that person could receive. The correlation between risk and dose is not the same for every radionuclide.

3. Coordination With the Nuclear Regulatory Commission

Because a significant purpose of our proposed approach is to address lowactivity mixed waste generated by NRC licensees, we and NRC will work closely together in modifying the existing regulatory structure to encourage more flexibility in LAMW disposal. The lack of facilities to treat and dispose of mixed waste has been the subject of Congressional hearings and EPA and NRC were encouraged to devote resources to develop a strategy to address these issues.\4\ Concern was also expressed to the Council on Environmental Quality about this problem, which ``has persisted for over 11 years [with] no resolution in sight.'' \5\ The Council was asked what action was being taken to create alternatives for dealing with these waste streams.\6\ We and NRC have worked together in the past to develop guidance and regulatory solutions for certain broad mixed waste issues.\7\
\4\ Hearing Before the Subcommittee on Energy and Power of the Committee on Commerce, House of Representatives, 104th Cong., 2d Sess., Sept. 5, 1996, Serial Number 104114.
\5\ Hearing Before the Subcommittee on Oversight and
Investigations, of the Committee on Energy and Natural Resources, United States Senate, 104th Cong., 2d Sess., Sept. 26, 1996, Serial Number 104775, at 71.
\6\ Id.
\7\ EPA and NRC have issued joint guidance on mixed waste testing (``Joint EPA/NRC Guidance on Testing Requirements for Mixed Radioactive and Hazardous Waste,'' 62 FR 62079, November 20, 1997) and disposal (``NRC/EPA Siting Guidelines for Disposal of LLMW,'' OSWER Directive 9480.0014, June 1987; ``Joint NRC/EPA Guidance on a Conceptual Design Approach for Commercial LLMW Disposal
Facilities,'' OSWER Directive 9487.008, August 3, 1987). These documents are available at http://www.epa.gov/radiation/mixedwaste.

In that vein, EPA and NRC view the disposal of LAMW in a Subtitle C RCRA landfill as a viable approach deserving further examination through a public notice and comment process. EPA and NRC believe this approach has the potential to offer needed flexibility in the regulation of mixed waste and be fully protective of the public health and the environment. This approach would also be consistent with actions taken by both agencies to address specific situations. Note that the NRC, in consultation with us, has issued guidance such that, under certain conditions, radioactively contaminated electric arc furnace dust containing cesium137 below specified levelsthe result of accidental melting of sealed sources by steel millsappropriately may be disposed of in commercially operated RCRA hazardous waste facilities (62 FR 13176, March 19, 1997).

We anticipate that implementing the disposal option discussed in today's action for all lowactivity radioactive waste, including those waste streams discussed in section III, will require regulatory action by both agencies (although our respective responsibilities clearly vary for the different waste streams). We invite commenters to provide their perspective on the appropriate roles of the two agencies in developing regulatory standards and implementing them for waste generators [[Page 65127]]
and disposal facilities, including the appropriate level of Federal and/or State oversight. What regulatory arrangement, including division of responsibilities between EPA and NRC, would be most likely to facilitate the safe management and disposal of these wastes? We would also welcome suggestions as to the most effective ways to minimize the effects of dual regulation.

In our discussions, NRC has identified several regulatory options that it might apply to LAMW. We discuss these potential NRC regulatory approaches to LAMW in section II.F, and have included some questions to elicit public comment on those approaches. However, NRC will discuss issues specific to NRC's regulatory system in greater detail as it proceeds through its own rulemaking process. Our action today focuses more on technical and policy questions surrounding the use of RCRAC technology and regulatory framework for disposal of LAMW, the applicability of the RCRAC technology to other lowactivity radioactive wastes, and nonregulatory approaches that might prove effective in managing and disposing of lowactivity wastes. We encourage commenters to respond to all questions in today's action. B. Why Is There a Need To Simplify Disposal of LAMW?

1. Dual Regulatory Structure

Mixed waste is regulated under both RCRA and the AEA. The need to comply with two separate regulatory systems, each of which is targeted to a different component of the waste, creates a certain regulatory and economic burden on mixed waste generators. While many of the requirements of the two systems have similar purposes (e.g., inspections), they can have the effect of creating two distinct regulatory compliance infrastructures. Generators (as well as treatment and disposal facilities) must achieve compliance with both systems. In some cases, these requirements may appear to be duplicative.

Approximately 3000 small volume generators store mixed wastes, in part because disposal options are extremely limited. Some estimates are that the number of individual sites storing mixed waste could be significantly higher, though there is greater uncertainty in these estimates. The lack of disposal options for these generators causes increased management costs. It also can result in mishandling and perhaps illegal dumping of the waste. Some mixed waste has been in storage for over a decade. These concerns are not limited to small generators. The EPA rule discussed in section II.B.2 was largely driven by power companies' concern over dual regulation of mixed waste. We believe, in general, that treatment and permanent disposal of waste, when available, is preferable to storage.

Also, we are concerned that the high costs and difficulty of disposing of mixed waste will cause doctors, hospitals, and diagnostic laboratories to suspend certain procedures, which could result in the provision of less than optimum health care.\8\ There are reports that the inability to store and dispose of radioactive waste has caused researchers to avoid scientific procedures that are known to be effective and to develop less effective alternatives.\9\ We also are concerned that such problems indirectly may be hampering medical research.
\8\ Kaye, Gordon J, ``The Crisis in LLRW Disposal Short and Long Term Effects on the Biomedical Community,'' Newsletter for Appalachian Compact Users of Radioactive Isotopes, June 1991. \9\ Isaac, Peter G, et al., ``Nonradioactive Probes,'' Molecular Biology, p 259160, vol. 3, June 1995.

We believe it is possible to alleviate the problem if more of the facilities that can accommodate hazardous waste safely were allowed, under certain conditions, to dispose of LAMW. Of the commercial facilities currently permitted to dispose of hazardous waste under RCRA, only one is also licensed to dispose of AEA radioactive waste (and mixed waste). (This facility and one other that we are aware of that has applied for a license to dispose of AEA radioactive waste are special cases, as their original plans involved accepting radioactive waste.) This situation may be due, in part, to the additional burden faced by the RCRA disposal facility operators in applying for a site specific license under 10 CFR part 61 or its equivalent to establish a fullfledged lowlevel radioactive waste (LLRW) disposal facility. Both 10 CFR part 61 and RCRA Subtitle C describe fairly lengthy, data intensive, and costly processes for regulatory approval. The somewhat different focus of the two systems (RCRA as ``technology based'', part 61 as ``performance based'') may also serve to limit the number of facilities willing to demonstrate compliance under both regulatory systems. (See section II.C for more detail on the licensingpermitting issue.) A few commercial Subtitle C landfills have accepted nonAEA radioactive waste with the approval of State authorities, which supports our belief that, with the proper controls, the RCRAC technology can provide protective disposal of certain types of radioactive material. Issues associated with nonAEA radioactive wastes are discussed in section III.

We asserted RCRA authority over the hazardous portion of mixed waste in the mid1980s; however, section 1006 of RCRA states that the AEA takes precedence over RCRA in cases where the regulatory requirements are inconsistent. Because the approach we are considering would rely on RCRA Subtitle C landfill technology, and because low activity mixed waste would have relatively low concentrations of radionuclides, our approach would permit the disposal of LAMW if it met RCRAC regulations and practices. This implies that the risks to workers, the public, and the environment (including ground water) presented by the radioactive portion of LAMW would be effectively minimized considering the controls already in place at the RCRAC landfills. Waste generators would also bear responsibility for ensuring that their waste met conditions for disposal as lowactivity mixed waste.

This approach would take into account the practicalities of implementing LAMW disposal at RCRApermitted hazardous waste landfills, rather than transforming them into more AEAlike facilities. We believe that this will introduce sufficient flexibility as to allow LAMW generators to take advantage of additional disposal options. Similarly, the number of commercial facilities currently permitted under RCRA to accept hazardous waste (roughly 20) is significantly higher than the number licensed to accept lowlevel waste (3) or mixed waste (1), offering the prospect of greater competition and disposal capacity. Though this comparison is instructive, we do not want to limit our focus to commercial disposal facilities. A significant number of companies have been issued permits for their own ``captive'' or privatelyowned hazardous waste disposal facilities, which typically accept waste only from generators owned by or affiliated with the landfill operator. It is conceivable that mixed waste generators might be among those with access to such facilities. These facilities must meet the same RCRA permitting requirements as commercial facilities and therefore, this approach should be equally appropriate for the receipt of LAMW. We request comment on whether we should consider only a subset (i.e., only the commercial or private sector) of the RCRAC universe in our analyses. On a related topic, should RCRA landfills operated by DOE on its own sites be considered within the scope of this approach? [[Page 65128]]

2. Recent EPA Mixed Waste Actions

As described above, on May 16, 2001, we promulgated regulations related to the storage, treatment, transportation, and disposal of mixed lowlevel radioactive waste (subpart N of 40 CFR part 266). These regulations describe conditions under which MLLW can be exempted from certain RCRA hazardous waste requirements. In particular, a generator of MLLW may store and treat the waste at the generator's facility without obtaining a RCRA permit (required for hazardous waste treatment, disposal, and onsite storage beyond 90 days), as long as the storage and treatment take place in tanks or containers and conform to the generator's AEA license conditions. Similarly, transportation to an AEAlicensed lowlevel radioactive waste disposal facility, and subsequent disposal, may also take place solely according to AEA requirements. However, eligible MLLW must still meet the RCRA land disposal treatment standards prior to transportation for disposal at a licensed lowlevel waste disposal facility.

We believe our conceptual approach to disposal of lowactivity mixed waste is complementary to the regulations we promulgated in subpart N. We believe that a significant proportion of MLLW could qualify as lowactivity mixed waste (just as most lowlevel waste is in the lowestactivity class), depending on where the technical analyses indicate the limits should be set. The approach we are outlining today would also significantly increase disposal options, if fully implemented. Compared to the three operating lowlevel radioactive waste disposal facilities, there are roughly twenty commercial RCRA Subtitle C disposal facilities operating today, with many more that take waste from only a limited number of generators.

The approach we took in promulgating the subpart N disposal requirements relied on a comparison of the RCRA and AEA requirements for disposal. In that context, and recognizing that RCRA waste meeting the treatment standards for land disposal would likely be significantly lower in risk, we determined that AEA disposal requirements offered sufficient protectiveness for the hazardous constituents in MLLW. Our approach to establishing disposal standards for lowactivity mixed waste is similar in concept. For example, our approach would consider the effects of waste form for the treated LAMW and containerization in minimizing the availability of radionuclides in the waste for release in the presence of water. However, our approach will rely on modeling to determine when the risk to workers and the public from disposal of radionuclides is acceptably low. The LAMW concentration limits developed under this approach will be analogous to the RCRA concentrationbased treatment standards that reduce the toxicity and mobility of hazardous constituents in the waste. Additional measures that support and build public confidence in this determination, such as groundwater monitoring for radionuclides, may be advisable.

There will be unavoidable overlap of the mixed waste eligible for disposal under the two rules. Our subpart N regulations cover a broader spectrum of MLLW, while we expect the LAMW concept to address only the loweractivity portion of that MLLW spectrum. Generators with waste eligible under both rules may make their disposal choice based on cost, access to a disposal facility, and regulatory constraints.
C. How Would the RCRA Regulatory Framework Support a Viable Disposal Concept?

We propose to rely to a large extent on the protections offered by the RCRA hazardous waste disposal facilities for disposal of low activity mixed waste. We believe that the RCRA Subtitle C requirements provide a uniform level of waste containment and isolation technology that warrants confidence in their ability to address low concentrations of radionuclides; although RCRA does not regulate on the basis of radioactivity, there is no general prohibition on disposal of material not regulated as hazardous in a hazardous waste facility, and some RCRA facilities are permitted to accept certain types of TENORM waste. In addition, requirements related to hazardous waste characteristics have evolved over the life of the Subtitle C program to the point that they are tightly controlled through application of treatment standards. Below we discuss several points that we believe provide strong support for the LAMW disposal approach.
1. Technological Basis for Disposal (RCRA Hazardous Waste Landfill Criteria)

To assess the protectiveness of LAMW disposal at RCRAC facilities, we first need to understand how the disposal cell itself will contribute to the isolation of radionuclides. It is recognized that RCRA and AEA employ different regulatory philosophies. RCRA has explicit engineering and construction criteria for Subtitle C landfills. Therefore, any permitted RCRAC facility is expected to meet these basic criteria and they can be accounted for in the technical analyses. In contrast, as discussed further in section II.C.4, AEA low level waste facilities in 10 CFR part 61 must meet certain performance objectives to be licensed. Thus the AEA approach allows for some variation among AEA facilities, depending upon factors such as climate and site geology. This provides flexibility in facility design in that it can be tailored to the hazard of the waste. Ultimately, the purpose of both systems is to contain and isolate the waste in order to protect public health and the environment.

We believe RCRA's uniformity of design, and the specific engineering features required, provide assurance that RCRAC facilities can limit contact of waste with water (and subsequent leachate generation) and should allow disposal of LAMW containing low concentrations of radionuclides. The RCRA regulations describing landfill attributes are located in 40 CFR part 264, subpart N. They require, among other things, that a disposal facility have: [sbull] A cap on the disposal cell that minimizes infiltration of liquids, promotes drainage, minimizes erosion, accommodates settling and subsidence, and has permeability no greater than that of the disposal cell liner system or natural subsoils;
[sbull] A liner system beneath the disposal cell constructed of materials of specified thickness, hydraulic conductivity, physical strength, and chemical resistance;
[sbull] A leachate collection and removal system capable of limiting leachate depth above the liner to 30 cm; and
[sbull] A leak detection system constructed with a specific slope and materials of a certain thickness, hydraulic conductivity, physical strength, and chemical resistance.

2. RCRA Treatment Standards

Besides having specific requirements for disposal cell construction, RCRA also requires that hazardous waste be treated prior to land disposal. This treatment may serve two purposes: First, it can reduce the concentration of hazardous constituents in the waste, which also reduces the associated risk; second, it may change the physical form of the waste, which can change the volume of the waste, make the waste easier to handle, reduce the likelihood of releasing hazardous constituents from the waste, or reduce the likelihood that the waste itself will migrate out of the disposal cell (e.g., as a liquid or [[Page 65129]]
leachate) and reach ground water. (By contrast, NRC requirements address waste characteristics, but NRC does not require specific treatment methods for waste prior to disposal. However, lowlevel radioactive waste is generally compacted, which reduces volume and increases stability but also increases radionuclide concentrations on a per unit volume basis. In addition, liquids and chelating agents must be minimized or otherwise managed to limit their impact on facility performance.)

The RCRA Universal Treatment Standards (UTS) are located in 40 CFR part 268. Most are in the form of concentration limits of the respective hazardous constituents, but some are in the form of specified treatment technology (particularly in the case of hardto treat wastes). The UTS are based on the level of reduction that can be achieved by available technology, not on risk reduction. However, by reducing the concentration of toxic constituents, the practical effect is some reduction in risk. We would appreciate comments on the need for measures, such as waste treatment to a specific waste form, that would help ensure that radionuclide concentrations established under the approach outlined today remain protective when implemented.

We expect this approach to require that lowactivity mixed waste comply with the RCRA UTS before allowing disposal at RCRAC facilities, in keeping with existing restrictions. To the extent that treatment involves some kind of waste stabilization or solidification, we would consider this advantageous to keeping radionuclides immobilized in the disposal cell. We ask readers whether they believe there are situations in which compliance with the UTS may be unnecessary or inadvisable for wastes containing radionuclides. We request comment on the need to require a certain waste form for LAMW and the desirability of having standards (e.g., concentrations) that are dependent on waste form. We also request comment on whether a rule should explicitly require segregating treated LAMW meeting the UTS from untreated hazardous waste (waste disposed of before treatment standards were required). This would limit potential interactions with chemicals that could influence the ability of radionuclides to move in the environment. We believe this is probably not necessary, as disposal cells that were open prior to the treatment requirements are likely to have been closed for some time.

3. RCRA Disposal Facility Operating Standards

RCRA is also explicit about how the facility must approach operational functions, both while the facility is operating and during the closure and postclosure phases.

FOR FURTHER INFORMATION CONTACT Dan Schultheisz, Radiation Protection Division, Office of Radiation and Indoor Air, Mailcode: 6608J, United States Environmental Protection Agency, Washington, DC, 204600001; telephone (202) 3439300; email schultheisz.daniel@epa.gov.