Thomas Hillmer
CHMM
Hillmer Enterprises
Nicholas Hild
Arizona State University
ABSTRACT
This paper reviews the regulatory history of Mixed Waste and discusses the dilemma that face facilities that store mixed waste. Every nuclear power facility that relies on the Environmental Protection Agency's notice of non-enforcement now finds itself in violation of storage restrictions for mixed waste because there are no approved disposal facilities that are licensed to take all the various types and forms of mixed waste that are being generated. The only choice for facilities that have generated mixed waste in a form that cannot be disposed of is to obtain a Part B Permit for storage of mixed waste. In effect they are forced to obtain a permit, "forced Permitting", or run the risk of having legal action taken against them by environmental activist groups. A guide to writing a Part B Permit for mixed waste is included in this paper.
INTRODUCTION
The issue of mixed waste disposal is becoming critical to the nuclear power generating industry. When the U.S. Congress envisioned a country served by nuclear power facilities in the mid-1960's, they failed to envision that regulatory interpretations would create disposal problems for mixtures of nuclear and hazardous waste in the decade of the 1990's. It is an issue that is both technical and political but one that the regulatory agencies are reluctant to provide direction on because of the potential political ramifications.
Yet, every nuclear power facility that relies on the Environmental Protection Agency's (EPA) notice of non-enforcement now finds itself in violation of storage restrictions for mixed waste because there are no approved disposal facility that are licensed to take all the various types and forms of mixed waste that have been generated. Both the NRC and EPA are fully aware of this dilemma but continue to delay decision-making that would enable the generator to meet a single set of regulations.
On October 6, 1992 the State of Arizona adopted rules pertaining to the regulation of mixed waste seeking authority from the federal EPA to regulate all mixed waste in Arizona. Final authorization was given on January 22, 1993 (1).
Currently, as noted above, no single facility in the United States can accept, process, and dispose of all the various types or classifications of mixed waste that are generated. In recognition of this fact, the EPA issued a statement of non-enforcement policy which carries no legal weight (2). Few management options exist for the mixed waste generators who are at riskof being in non-compliance with the storage prohibition regulations. One of the problems that has been generated by the EPA position is that waste which once could be disposed of as low-level radioactive waste now must also meet EPA land ban requirements. These requirements stipulate that waste be processed in a licensed treatment facility with a process that has been approved for the specific waste in question. Nuclear facilities have been designed with processing capabilities necessary to meet licensing requirements for radioactive waste and not EPA land ban requirements. A significant effort in both time and money will be required to develop a treatment method, obtain the needed NRC license and retro fit that process and equipment into existing nuclear facilities. Another problem with meeting EPA regulations is the time necessary to obtain permits, which can very depending on whether the generator is regulated directly by the EPA or by an authorized state. Also, will the state dictate additional restrictions that the EPA might not require?
There are many other questions and concerns created by the EPA interpretation, such as: Which other environmental regulations that are not now applicable become applicable after a facility becomes RCRA permitted. The issue of closure of a permitted storage facility and how that affects an operating nuclear facility and how the closure affects the NRC decommissioning of a facility. All these issues along with the severe and continuing shortage of off-site mixed waste treatment, storage or disposal facilities available for management of mixed waste ensures that generators of even the smallest quantities of mixed waste will be forced to accumulate those wastes on-site for indefinite periods. This in turn, will force continued expenditures of resources, by both generators and regulators, in pursuit of hazardous waste permits that add no measures of environmental protection over that already provided by existing NRC regulations.
With these conditions as background, two actions needed to be taken. The first is to state a definite case for a single regulatory agency to regulate mixed waste if that information was not already a part of the public record. This is important since the EPA has the authority to choose not to regulate an area if that area is already adequately regulated by another federal agency. In the past no detailed comparison of regulations has been made that will show that the NRC regulations address all issues that the EPA required of hazardous waste management. The second is to design a model program that can be used for applying for a Mixed Waste Storage Permit. That program would, by necessity, be similar to and consistent with the Resource Conservation and Recovery Act (RCRA) Part B Permit for hazardous waste storage. This model would, if acceptable to the State of Arizona, serve as guidance for filing for a Mixed Waste Storage Permit in any authorized state in the U.S.
Objectives
The objectives which are accomplished in this paper are:
LITERATURE REVIEW AND HISTORICAL DEVELOPMENTS
Applicable literature primarily consisted of regulatory history. The following NRC, EPA, OSHA, and DOT regulations and statutes were reviewed and relevant language used to make the model:
The NRC regulations that specifically deal with the management of mixed waste are:
The EPA regulations that specifically deal with the management and storage of mixed waste are the Code of Federal Regulations:
The DOT regulations that specifically regulate mixed waste transportation are:
Office of Safety & Health Administration, is another federal organization that has regulations that affect the management of mixed waste. The main regulations are OSHA 29 CFR 1910.1200 and 29 CFR 1910.120 which deal with hazardous waste operations, Emergency Response, Hazardous Communication and the training of workers.
The federal government may grant authority to the states to regulate in its place. When the NRC gives that authority to a state, the state is called an "agreement" state. When the EPA grants the state authority, the state is called an authorized state. In Arizona, the EPA granted that right for the body of environmental regulations contained in the Arizona Laws Relating to Environmental Quality (3).
Regulation of waste that contains both a radioactive component and also a RCRA hazardous component came into effect on July 3, 1986 (4). On that date, the EPA, in a federal register notice, stated that any waste that contained hazardous waste and was also radioactive would be regulated by the EPA. This was regardless of whether the waste was already regulatedby some other regulatory body. In 1987 the NRC and EPA issued a letter giving additional guidance on the definition and identification of mixed waste (5).
Prior to the EPA determining that they had to regulate the hazardous waste portion of any nuclear waste generated, all radioactive waste was processed, usually onsite, and disposed of as radioactive waste. After the EPA made its determination it became necessary for any facility that processed or stored its radioactive waste, which also contained any hazardous waste, to obtain a treatment, storage or disposal (TSD) permit. This also meant that any radioactive disposal site would also become a TSD facility if they accepted mixed waste. When the EPA made their determination no facility was permitted by both the NRC and EPA to process or dispose of mixed waste. With no place licensed to accept all types or forms of mixed waste the generator had no options but to begin to store mixed waste on its own site.
A literature review was undertaken to determine if a detailed comparison between the NRC regulations and the EPA regulations which cover mixed waste existed and was part of the public record. The review found that the EPA had received a detailed comparison as part of submitted comments on the proposed Hazardous Waste Management Rule (6).
The volume of waste affected by the EPA decision historically is very small. During 1990 the NRC and EPA conducted a survey with the objective of compiling a national profile on the volumes, characteristics, and treatability of commercially generated low-level mixed waste (7). The profile was divided into five major facility categories; academic, industrial, medical, NRC-Agreement State-licensed government facilities and nuclear utilities. A breakdown of the annual generation of mixed waste by reporting facility grouping yields the following:
| Academic | 20,421 cubic feet, |
| Industrial | 19,056 cubic feet, |
| Governmental | 18,324 cubic feet, |
| Nuclear Utilities | 13,275 cubic feet, and |
| Medical | 10,151 cubic feet. |
The study found that for 1990, an estimated 81,227 cubic feet of mixed waste was generated by reporting facilities across the United States. Using weighting factors, a statistically valid estimate of the national profile yielded a generation of approximately 140,000 cubic feet . This study indicates that almost half the wasted waste being generated is not being properly classified as mixed waste and that a significant amount of mixed waste was not being stored as mixed waste but being disposed of as non mixed waste.. The total volume of classified mixed waste in storage, at that time, was estimated at 75,000 cubic feet. These values did not include Federal Government facilities controlled by the Department of Defense (DOD) and Department of Energy (DOE).
Today, the generation of mixed waste has decreased in the commercial electric utility sector to nearly zero. This result was primarily due to pollution prevention programs which have made been very successful in finding non-hazardous chemicals to replace hazardous chemicals previously used To put the waste values in perspective, a comparison with the generation andstorage of mixed waste at one DOE site is included. In November of 1995, the Idaho National Engineering Laboratory (INEL) estimated that it will generate, an average of 20,000 cubic feet per year, over the next 5 years. This value represents a significant reduction in the past generation rate. This new waste generation will be added to the 2,700,000 cubic feet already in storage at INEL. This represents about 12% of the total of all DOE mixed waste now in storage (8).
In 1992 there appeared to be no short term solution to the mixed waste problem and today the situation has not changed. As Laswell and Doohan pointed out in 1992, the best strategy at that time was to eliminate the production of radioactive waste that also contained hazardous waste. This is still the best policy, but it is not always possible. In some cases, where cleaning or maintenance is performed using a specified reagent, there are only hazardous chemicals available or suitable for use. If this function takes place in the presence of radioactivity or radioactive contamination, the result is the generation of a mixed waste.
Dual Regulation
Is dual regulation necessary? That question has been asked since the inception of the EPA position that they must also regulate mixed waste. The NRC conducted an analysis of low-level radioactive waste and EPA hazardous regulations in view of the generation of mixed waste and found that in general there was no conflict in the regulations (9). This fact needs to be clarified since dual regulation has, in fact, meant that waste that could once have been shipped and disposed of at a low-level waste site now has to remain on site, in storage, since the waste may not meet the specific burial requirements of the single commercial mixed waste burial facility for mixed waste. The nuclear industry attempted to show that dual regulation provided no more protection to the public and the environment. They claimed that adequate regulations existed under the NRC regulatory framework by comparing the EPA regulations for storage of hazardous waste in tanks to the regulations governing the storage of low-level radioactive liquids (10). This study was presented to the NRC and EPA, but the EPA maintained that even though they believed the regulations were equivalent they were legally required to regulate the hazardous portion of low-level radioactive waste. This position has been challenged as being only a political position rather than a legal fact.
In 1993, another study by two prominent lawyers also reviewed the regulations and again supported the conclusion that either the EPA or NRC regulations adequately protected the human health and environment. The researchers also stated that no discernible benefit to human health or the environment resulted from dual regulation. They concluded that until regulators recognized that the mixed waste crisis stemmed from jurisdictional attitudes (whether the NRC or EPA had the right to regulate this waste) and not a real physical property (was there a higher risk to the public from the radioactive or hazardous component of the waste), the regulatory system could only become more unworkable (11).
In lieu of a regulatory solution the generator of mixed waste must comply with dual regulations the best way possible. In cases where mixed waste cannot be processed or disposed, requirements for storage must be met. In states that have taken the responsibility to regulate mixed waste, the first step is to apply for a permit.
Mixed Waste Management
Mixed Waste Management Guidelines (12), developed by utility and industry experts, offers a complete overview of the development and management of mixed waste programs and provides guidance for developing or assessing the adequacy of mixed waste management programs. The major management issues covered included generator status, waste characterization, permit requirements, mixed waste transportation requirements, land disposal restrictions and mixed waste source reduction. An earlier study by Nuclear Management and Resources Council, Inc. detailed similar information and management recommendations (13). This information, if followed, will allow the generator to be in compliance with EPA regulations. The EPA has written a document which outlines how to conduct inspections of mixed waste facilities and is also a useful tool to ensure compliance by utilizing the inspection document to do self auditing (14). In 1994 Edison Electric Institute (EEI) while working with EPRI issued a compliance manual for the nuclear industry (15). Most recently, the EPA and NRC issued additional guidance on storage of mixed waste (16).
One of the key elements of a comprehensive mixed waste management program is a program to properly characterize waste streams that have the potential to be a mixed waste. Proper characterization of a potential mixed waste stream includes a determination of whether the waste is radioactive, and a solid waste and/or hazardous waste. In addition, the characterization process should consider how the waste will ultimately be managed so that appropriate information is available and documented relative to proper handling, treatment, storage, and/or disposal of the waste.
Mixed Waste Identification
In, Nuclear Utility Mixed Waste Stream Characterization Study (17), EPRI outlines the characterization process, summarizes industry experience relative to key characterization issues, and provides industry data (including more than 400 actual sample results) on the majority of plant processes identified as having the potential to generate mixed waste.
The regulatory guidance for identification (18), for sampling (19) and testing (20) have been written and were used in identifying and evaluating the proper management of mixed waste. Additionally, the EPA and NRC supplied guidance in a jointly issued letter of October 4, 1989, that contained an attachment entitled "Definition and Identification of Commercial Low-Level Radioactive and Hazardous Waste.
Mixed Waste Determinations
The key to the entire need for a permit is based on whether or not a mixed waste has been generated and then must be stored. In most nuclear facilities the determination as to whether a waste is a mixed waste is made after the material in question has been identified as a wastematerial. Most facilities have a chemical control program or a pollution prevention program which is the primary method of controlling the use of chemicals. These programs utilize material safety data sheets to determine how to handle any waste generated using the chemical. One of these program functions is to ensure that hazardous material which could become a hazardous waste do not enter a radiologically controlled area (RCA) and is the main method of ensuring that mixed waste is not generated. When hazardous material are used in an RCA and have become a waste, the first determination that is made is whether the material has become radioactively contaminated. The methodology developed in this paper along with the permit checklist comprise the program necessary to determine if you have generated mixed waste and how to write a Mixed Waste Storage Permit Application. The following questions are included as a guide to determine if an unknown material is a mixed waste. The questions are only guidelines to be used to initially characterize and classify the waste. A detailed review of the use of the material, a review of any chemical analysis and a review of the state and federal regulations should be made to ensure proper final characterization.
There are three waste types that the waste must be in order for the waste to be a mixed waste. The first question that must be answered, is the waste radioactive ? The second questions, is the waste a solid waste or is it exempted? The last question, does the waste meet the requirements of a hazardous waste? The legal definitions of these types of waste is the key to determining if your waste is "mixed waste".
Proper characterization of potential mixed waste streams is the first step in proper management of mixed waste. After you have characterized the waste stream you will know if your waste must be processed to meet land ban restrictions, shipped off site for processing or disposal within the required time frame or stored in a permitted mixed waste facility.
Special Management Concerns
Mixed waste has other special management concerns that also must be considered. Some of the key concerns are covered in the preamble to the "Checklist" (6) and are not a part of this paper. These include understanding NRC and EPA guidance on storage and in particular, your own State regulations which may apply. For purposes of this study, Arizona State regulations were reviewed and included in the guidance for using the "Checklist".
State Regulations
Arizona Department of Environmental Quality's applicable requirements were reviewed for preparation of a Part B Permit Application checklist. In addition to the regulations a review of approved Part B Permits was also completed. Since no Part B Permits for the storage of mixed waste have been undertaken in Arizona, the permit review utilized non-mixed waste Part B Permit Applications as the source of information.
The review of the status of applications and permits revealed the following breakdown.
A total of 38 permits or applications for permits, for non-mixed waste, have been processed by ADEQ and can be categorized as follows:
For this project only the completed permits were reviewed to determine what type of additional information was requested to have a complete application checklist suitable use in developing a permit application.
CHECKLIST FOR MIXED WASTE APPLICATIONS
Once a thorough mixed waste determination has been made, as noted in the mixed waste determination section, the checklist can be used to write a full mixed waste application. For additional reference, use of a Part B hazardous waste (TSD) permit application already on file with State Department of Environmental Quality or at one of the nine regional offices of EPA would be advisable. By cross-referencing the checklist headings with the actual language of a Part B application, it is relatively simple to fully disclose the necessary information that needs to be detailed under each heading.
The Part B Permit application requirements are outlined in 40 CFR Part 270, Subpart B. The permit shall include, as a minimum, all of the following:
General Information Section (A.A.C R18-8-270.A (40 C.F.R 270.14))
Specific Information -- Container Storage (A.A.C. R18.8-270.A (40 C.F.R. 270.15))
Specific Information - Solid Waste Management Units (SWMUs)-A.A.C. R18-8-270.A (40 C.F.R. & 270.14 (d) (1), (2))
SUMMARY
No specific regulatory relief for the generators of mixed waste is expected within the next few years. The reality that dual regulation is not necessary has been documented and the EPA is aware of the protection afforded mixed waste under NRC regulations (6). Discussions in Washington have taken place in regards to having the EPA reevaluate their position that dual regulation is necessary, but until a formal declaration that NRC regulations are adequate to protect the public is made by the EPA the dilemma will remain. The complexity and number of regulations involved in the management of mixed waste has been increasing since dual regulation of mixed waste began. It is imperative that mixed waste be managed properly and that allprecautions be made to adequately identify and correctly characterize mixed waste. Historically various organizations have attempted to assist in the management of mixed waste by publishing guidance documents. These documents should be reviewed when implementing a mixed waste management program. The checklist that has been developed will help those who are in the non-compliance area, with mixed waste stored on their sites, complete a Part B Permit application.
REFERENCES