fxEiPA
United States
Environmental Protection
Agency
Air And Radiation
(6602 J)
EPA402-R-94-010
January 1994
Implementation Of The
Waste Isolation Pilot Plant
Land Withdrawal Act
1993 Report To Congress
Recycled/Recyclable
Primed on paper that contains
at least 50% recycled fiber
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TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY 1
INTRODUCTION 4
Organization of Report 5
Implementation Principles 6
MANAGEMENT OF THE IMPLEMENTATION OF THE ACT
EPA Management 7
Resources Required 7
COMMUNICATIONS/CONSULTATION
Communications Activities 9
Consultation Activities 10
EPA'S WIPP REGULATORY RESPONSIBILITIES
40 CFR Part 191: Environmental Radiation Protection Standards for the
Management and Disposal of Spent Nuclear Fuel, High-level and
Transuranic Radioactive Wastes
Background 12
Implementation 13
Criteria for the Certification of Compliance
with 40 CFR Part 191 Disposal Standards
Implementatk ~t 15
Test Phase and Retrieval Plans
Background 17
Implementation 18
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Certification of Compliance with 40 CFR Part 191 Disposal Standards
Background 19
Implementation 20
Compliance with the Resource Conservation and Recovery Act
Background 21
Implementation 21
Compliance with Other Environmental Laws
Background 23
Implementation 23
OH and Gas Lease Provisions
of the WIPP Land Withdrawal Act
Background 24
Implementation 24
Implementation Schedule Highlights 25
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EXECUTIVE SUMMARY
The Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act (the Act), Pub.
L. No. 102-579, was signed by the President on October 30, 1992. This law gave
the U.S. Environmental Protection Agency (EPA) the authority to certify compliance
with EPA-developed standards for disposal of radioactive waste at the WIPP. This
law supplements EPA's authority under the Atomic Energy Act and Reorganization
Plan No. 3 of 1970 to establish generally applicable environmental standards for
the protection of the general environment from radioactive materials. Until now,
EPA has not had implementation authority to assure compliance with its
radioactive waste standards. This Act gives the Agency that authority for the
WIPP site and prescribes a regulatory framework for implementing its new
responsibilities.
EPA's responsibilities under the new Act include reviewing and approving or
disapproving of the Department of Energy's (DOE) Test Phase and Retrieval Plans,
issuing radioactive waste disposal standards which will apply to the WIPP as well
as all spent nuclear fuel, high-level radioactive waste and transuranic waste
disposal facilities (except at Yucca Mt.); certifying compliance with radioactive
waste disposal standards; and ensuring compliance with all other applicable laws
and regulations. The Agency has committed itself to carrying out its new
oversight responsibilities in a very open, objective, and scientifically credible
manner.
Following passage of the Act, approximately 20 new staff members were
hired to carry out the Agency's new responsibilities under the Act. Staff from
several EPA offices are responsible for carrying out the Act. Those offices include
the Office of Radiation and Indoor Air (ORIA), the Office of Solid Waste (OSW),
EPA's Region 6 Office, and the Office of General Counsel.
The Agency kicked off its implementation of the new Act by conducting a
series of meetings with key stakeholders and the public in New Mexico in
December 1992. The meetings were designed to make the public aware of EPA's
new responsibilities under the Act and to solicit input on the Agency's
implementation strategy. Based on that input, the Agency prepared a final
implementation strategy in February 1993.
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Very shortly after the Act was passed, ORIA staff formed, and began
working with intra-agency workgroups to develop review criteria for DOE's test
phase and retrieval plans and compliance criteria for certification of the WIPP. In
addition to the staff-level workgroups, ORIA formed an intra-agency senior
management-level task force to provide direction for and assure coordination of the
WIPP implementation program within the Agency. This group has met several
times and reviewed significant policy papers prepared by the workgroups and ORIA
staff.
In order to obtain advice on some the complex policy and technical issues
raised in this WIPP oversight program, EPA established a WIPP Subcommittee
under the National Advisory Council on Environmental Policy and Technology
(NACEPT) to advise the Agency in its implementation of the Act. The
subcommittee has held two very successful meetings which have resulted in useful
recommendations to the Agency on review of the WIPP test phase and retrieval
plans and on development of criteria for certifying compliance with the waste
standards.
The Act reinstated all of the environmental radiation protection standards for
the management and disposal of spent nuclear fuel, high-level and transuranic
radioactive wastes in part 191 of chapter 40 of the Code of Federal Regulations ::
(40 CFR Part 191} except for certain aspects of the individual and ground-water
protection requirements. (Forty CFR Part 191 had been remanded by the First
Circuit Court of Appeals NRDC vs. EPA. 824 F.2d 1258 [1st Cir. 1987].) EPA
issued final amendments to the individual and ground-water protection
requirements on December 20, 1993.
The Act requires the development of criteria for certifying compliance with
these standards by October 1994. Within four months of enactment, EPA issued
an Advance Notice of Proposed Rulemaking on the criteria. A NACEPT meeting
was held in New Mexico in September 1993 which provided useful
recommendations for the Agency on this issue. Proposed criteria are expected to
be issued in March 1994.
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One of the first tasks of the Test Phase and Retrieval Plans Workgroup was
to develop criteria for reviewing DOE's test phase and retrieval plans. The
workgroup prepared draft criteria in the Spring of 1993 and submitted them to the
NACEPT subcommittee for review and advice at their May meeting. In March,
DOE submitted draft Test Phase and Retrieval Plans to EPA for review. EPA met
with DOE staff on several occasions to present their detailed comments and
concerns with the plan. All the meetings were open to the public. On October 21,
1993, DOE announced that tests involving radioactive and hazardous waste would
not be conducted at WIPP. Instead, DOE will revise and expand its laboratory test
program and .submit it to EPA for review. This review does not have to be done
through the rulemaking process.
Having committed itself to conducting an open process, over the last year
EPA laid the foundation for an aggressive public outreach program. Public
outreach efforts began with the set of meetings with stakeholders and the public in
New Mexico to explain EPA's new oversight role in WIPP. Based on suggestions
from those meetings, the Agency established a toll-free WIPP information line
to keep the public up-to-date on EPA's WIPP activities. The
Agency also established three dockets in New Mexico to make rulemaking
documents easily available to the public. In March, an Implementation Strategy
was published which describes EPA's plan for carrying out its responsibilities. In
June, Agency staff traveled to New Mexico to meet with approximately 25 people
representing interest groups and the general public to conduct a "Communications
and Consultation Needs Assessment." This set of interviews provided useful
insights into the concerns of the people of New Mexico regarding EPA's WIPP
program. It also provided many useful recommendations regarding development of
public information and the best ways to communicate and consult with New
Mexicans on this project. EPA's WIPP communications plan will be based on this
assessment, in addition to these efforts, EPA has developed an assortment of
public information materials for distribution to the many groups and individuals
interested in this project.
During the next year, EPA will focus its efforts on (1) developing criteria,
through rulemaking, for demonstrating compliance with EPA's radioactive waste
disposal standards, (2) providing guidance and ensuring compliance with the
Resource Conservation and Recovery Act, and (3) reviewing DpE's performance
assessment and draft certification application, which will provide a basis for its
application for certification of the facility. In addition, the Agency will develop a
strategy for assuring compliance with all other federal environmental laws and
regulations. EPA will also review and comment on DOE's revised test plans and
develop a strategy to assure the quality of all data received from DOE, including
waste characterization data.
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INTRODUCTION
The purpose of this report is to fulfill the requirements in Section 23{a)(2) of
the WIPP Land Withdrawal Act, which requires EPA to submit an annual report to
the Congress "on the status of and resources required for the fulfillment of the '
Administrator's responsibilities under this Act." This report summarizes the -
activities and progress EPA has made in fulfilling its responsibilities under the Act
and outlines the resources required for the Agency to meet its commitments.
The Act gives EPA the responsibility for overseeing many of DOE's activities
at the WIPP, beginning with a test phase and continuing throughout the facility's
operation and decommissioning, if those phases are allowed under the Act. The
WIPP is a potential long-term disposal facility for transuranic radioactive wastes
under development by DOE in southeastern New Mexico. Transuranic wastes are,
long-lived radioactive wastes generated as by-products from nuclear weapons j
production. ..
The Act requires EPA to take the following regulatory actions: >v
o Issue Radlggctiye Waste Disposal Standards
Develop environmental protection standards for the disposal of spent
nuclear fuel and high-level and transuranic radioactive wastes, which
will apply to all potential disposal sites except those required to be
characterized under the Nuclear Waste Policy Act as amended.
o Promulgate a Test Phase and Retrieval Plan? Rule
Review DOE's test phase and retrieval plans and determine whether
they meet the requirements of the Act. (This only includes tests at
the WIPP which involve radioactive waste.)
o Develop Compliance Criteria
Establish criteria for determining whether the WIPP complies with
environmental protection standards for the disposal of transuranic
wastes.
o Conduct a Compliance Certification
Certify whether the WIPP will comply with environmental protection
standards for the disposal of transuranic radioactive wastes.
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In addition to these regulatory actions, EPA must assure that the facility complies
with all applicable federal environmental laws and regulations. EPA is also required
to make a certification decision within one year of receipt of DOE's application for
certification.
Organization of the Report
This report begins by stating EPA's implementation principles which
constitute the basis for all EPA activities concerning the WIPP. The management
section explains how EPA is managing the implementation process and how EPA's
resources are being utilized to implement the Act. EPA's communications and
consultation activities are described in the next section. The following sections
explain EPA's specific responsibilities under the Act and the progress EPA has .
made in fulfilling those responsibilities. At the end of the report is a schedule of
important past and future dates for regulatory activities.
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Implementation Principles
The Act provides EPA extensive responsibility for overseeing the WIPP and
in ensuring that the facility complies with environmental laws and regulations. EPA
established the following principles to guide Agency activities under the Act.
Protection
* EPA will strive to develop a regulatory program designed to protect present
and future generations from the risks posed by potential disposal of waste at
the WIPP.
Good Science
* EPA wilt base its decisions on the best available scientific and technical data
while recognizing that uncertainties about the performance of the WIPP will
always exist.
Consultation
* EPA recognizes the important roles played by the state and local
governments, citizen and environmental groups, industry, and other federal
agencies, and the Agency commits to conducting an open public process
that includes interaction with these groups and other interested parties.
Commitment
* EPA will establish and meet commitments to implement the WIPP legislation
effectively, consistent with its legal authority.
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MANAGEMENT OF THE IMPLEMENTATION OF THE ACT
iPA Management
EPA \s committed to carrying out its WIPP oversight responsibilities in a
timely and scientifically credible manner. To this end, the Agency has established
a senior management intra-agency committee to ensure that WIPP oversight
responsibility is effectively coordinated within the Agency and to expedite the
resolution of intra-agency policy issues.
The Office of Radiation and Indoor Air (ORIA) has the primary responsibility
for implementing many of EPA's responsibilities under the Act. The Office of Solid
Waste (OSW), the Office of General Counsel (OGC), and EPA's Region 6 office
also have large roles to play in implementing the new law. OSW and Region 6 are
working together to ensure that WIPP complies with the Resource Conservation
and Recovery Act. Region 6 is leading efforts to ensure that WIPP complies with
all other federal environmental laws and regulations. ORIA, OSW, and Region 6
enlist support, as needed, from many other offices within EPA, such as the Office
of Policy, Planning, and Evaluation (OPPE); the Office of Enforcement (OE); and the
Office of Water (OW).
Within ORIA, the Criteria and Standards Division (CSD) has the lead on WIPP
oversight responsibilities. In 1993, CSD added two new sections to its Waste
Standards and Risk Assessment Branch (WSRAB) to carry out the bufk of ORIA's
new responsibilities under the WIPP Land Withdrawal Act. CSD's Policy and
Emergency Response Branch leads ORIA's WIPP outreach efforts. Approximately
20 new staff were hired in FY 1993 to work on WIPP oversight in CSD. EPA
Headquarters expects to hire one more staff person, and EPA's Las Vegas Facility
expects to hire two staff people. Staff-level work on implementation of the Act is
coordinated through intra-agency workgroups set up by CSD.
Resources Required
The Act authorizes DOE to fund the EPA effort (up to $14 million per year)
through the year 2001. In FY 1993, an Interagency Agreement between DOE and
EPA funded 33 FTE and $6.5 million for EPA WIPP activities.
In FY 1994, DOE will fund 25 HQ FTE and 4 Regional FTE, and $2.8 million
in contract support for WIPP. EPA is funding an additional 3 FTE at Headquarters.
This level of funding resulted from an agreement between EPA and DOE on both
the WIPP and radioactive cleanup standards development. EPA is investing an
additional $1.0 million in extramural dollars for WIPP.
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In FY 1995, the Agency has committed to include the WIPP resources
request within its budget request.
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Communications/Consultation
EPA is committed to maintaining open lines of communication with the
public, interest groups, DOE, the states, and other governmental organizations as it
carries out its WIPP oversight mission. The Agency believes that a successful
communications and consultation program can both expedite the
regulatory/oversight process and ensure sound public policy decisions. Therefore,
EPA has initiated efforts to inform interested parties about EPA's WIPP oversight
functions and to encourage public participation in the regulatory process on both
technical and non-technical matters.
Communications Activities
Shortly after enactment of the Act in October 1992, EPA drafted its
Implementation Strategy. The Agency kicked off its communications and
consultation efforts in December 1992 when Agency officials went to New Mexico
to discuss the Implementation Strategy in two public meetings and several
meetings with other key stakeholders. In addition, meetings were held with
Congressional staff to discuss the draft strategy. Based on comments it received,
the Agency revised the strategy and published it in March 1993.
In response to suggestions made at the December meetings, EPA created a
toll-free WIPP Information Line that contains up-to-date recorded
information about public hearings and meetings, publications, and other important
EPA WIPP activities. The information line's capabilities will be extended so that
callers will be able to leave a message requesting a publication or asking a
question. EPA staff wilt respond to questions by phone.
Also in response to suggestions from New Mexico citizens, EPA established
WiPP-related rulemaking dockets in Carlsbad, Albuquerque, and Santa Fe in
addition to the dockets at EPA headquarters in Washington, DC.
In addition to the Implementation Strategy, which was widely distributed,
EPA developed and distributed a number of public information materials describing
the Agency's role regarding the WIPP and specific regulatory program elements.
To date, the Agency has produced fact sheets on EPA's role in overseeing the
WIPP, EPA's proposed amendments to environmental radiation protection
standards for the disposal of transuranic waste, the National Advisory Council on
Environmental Policy and Technology's WIPP Subcommittee, and EPA's final
radioactive waste management and disposal standards. All fact sheets have been
published in Spanish as well as English. The Agency will produce additional fact
sheets to explain EPA's promulgation of compliance criteria for the disposal
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standards and the certification of compliance and/or noncompliance with the
disposal standards. EPA is also developing a booklet on the WIPP, and EPA's role
in regulating the facility. This booklet will also be available in Spanish. The
Agency also plans to issue a periodic bulletin on the status of EPA's WIPP
activities as important events occur.
In June of 1993, EPA officials went to New Mexico to interview various
representatives from environmental groups, businesses, citizen groups, DOE, -and
the state government as well as private citizens. The goal was for the
"interviewees" to identify their issues of concern with respect to EPA's WiPP
oversight responsibilities as well as their specific information and communications
.needs. The results of these interviews are being used to develop a
communications plan for EPA's outreach efforts. The communications plan will be
distributed to interested groups and will be available to the public.
EPA has established an extensive mailing list of individuals and organizations
that are interested in receiving information on the Agency's WIPP activities.
Proposed rules, fact sheets, meeting notices, NACEPT reports, publications, etc.
are distributed periodically to the mailing list. Press releases and advisories are
distributed to the national and New Mexico news outlets.
Consultation Activities
Recognizing the very difficult and complex technical and policy issues
associated with its implementation responsibilities, EPA established a WIPP
Subcommittee under the National Advisory Council on Environmental Policy and
Technology (NACEPT). The Subcommittee provides independent advice to the
Agency on issues associated with implementation of the Act. The Subcommittee
met twice in FY '93. Both meetings were held in New Mexico and were open to
the public. The first meeting was held in May to discuss review criteria for the
DOE Test Phase and Retrieval Plans. The second meeting in September was held
to solicit advice on establishing compliance criteria. The Subcommittee was able
to come to a consensus and make useful recommendations on selecting review
criteria. The meetings were very useful to EPA and well-received by the public.
In addition to consulting with the NACEPT subcommittee, the Agency has
met separately with several key interest groups from New Mexico to discuss WIPP
issues. These groups have included the Environmental Evaluation Group, the
Southwest Research and Information Center, and Concerned Citizens for Nuclear
Safety.
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EPA has met with, and will continue to meet with, DOE to discuss technical
issues as necessary. The first meeting was held in December 1992 to initiate
discussions of Act implementation. These meetings are open to the public and
announced on the toll-free WIPP Information Line. Notes of all phone
conversations and meetings between EPA and DOE technical staff are recorded
and placed in the docket.
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EPA'S WiPP REGULATORY RESPONSIBILITIES
40 CFR Part 191:
Environmental Radiation Protection Standards for the Management and Disposal of
Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes
The Act required that EPA promulgate final regulations (standards) for the
disposal of spent nuclear fuel, high-level radioactive waste, and transuranic waste
by April 30, 1993. This section provides background information on the standards
as well as Fiscal Year 1993 activities designed to meet the requirement.
Background
In 1976, EPA began developing environmental standards for the
management and disposal of radioactive wastes, in the same year, the Agency
announced that it would issue federal guidance to assure protection of the public
health and the general environment from radioactive wastes. In 1977 and 1978,
EPA conducted a series of public workshops to promote a better understanding of
radioactive waste issues and to provide a forum for voicing public concern.
In 1985, EPA issued final Environmental Radiation Protection Standards for
the Management and Disposal of Spent Nuclear Fuel, High-level and Transuranic
Radioactive Wastes in Part 191 of Chapter 40 of the Code of Federal Regulations
(40 CFR Part 191). The standards were published in Volume 50 of the Federal
Register on page 38066. The standards consisted of several types of
requirements. The Containment Requirements (Section 191.13) prescribed that
waste disposal systems be designed to provide a reasonable expectation that the
total releases of radionuclides from a disposal facility to the accessible environment
would not exceed specified levels for 1,000 years after disposal. A set of
qualitative Assurance Requirements (Section 191.14) supported the Containment
Requirements by helping to ensure that the wastes would be disposed of and
maintained in a careful manner that reduced the likelihood of radiation releases and
infiltration of the disposal repository. For example, markers would be required to
discourage people from, disturbing the site. The Individual Protection Requirements
(Section 191.15) limited radiation doses to individual members of the public. The
Ground-Water Protection Requirements protected potable sources of ground-water
by limiting radiation doses delivered through drinking water to members of the
public. Compliance with these requirements was to be determined through long-
term modeling projections of disposal system performance.
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Shortly after the standards were issued, several states and environmental
groups mounted legal challenges to the standards. On July 17, 1987, a federal
court returned the standards to the Agency for reconsideration. The court
identified the following three problems with the standards:
(1) inadequate explanation of the interrelationship between Ground-Water
Protection Requirements (Section 191.16) in 40 CFR Part 191 and
EPA's Safe Drinking Water Act requirements for the protection of
. ground-water developed for underground injection programs in terms
of protection levels;
(2) inadequate explanation of the rationale to support selection of a
1,000-year design criterion for the Individual Protection Requirements;
and
(3) insufficient notice and comment procedures followed in connection
with the issuance of the Ground-Water Protection Requirements.
The WIPP Land Withdrawal Act reinstates all of the sections of the 40 CFR
Part 191 disposal standards remanded by the court except those that the court
found problematic, i.e., aspects of the Individual and Ground-Water Protection
Requirements. Therefore, EPA proceeded to repromulgate individual and ground-
water protection requirements, as amendments to the reinstated standards.
implementation
EPA published proposed amendments to the Individual and Ground-Water
protection requirements in the Federal Register on February 10, 1993. The Agency
held hearings in New Mexico in February to receive comments on the proposal.
After considering the written and oral comments received, EPA developed the final
disposal standards, and the Administrator signed them on December 3, 1993, as
an amendment to Part 191 of Title 40 of the Code of Federal Regulations (40 CFR
Part 191). The statutory deadline of April 30, 1993 for these standards was not
met due in part to an extension of the public comment period in response to the
public's request and due to the difficulties in hiring staff and securing resources for
starting up the new EPA WIPP program.
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EPA's changes to the 40 CFR Part 191 disposal standards are aimed at
minimizing the risks to individuals and potential sources of drinking water in the
vicinity of radioactive waste disposal facilities. The amended Individual Protection
Requirements state that radioactive waste disposal systems must be designed to
provide a reasonable expectation that, for 10,000 years after disposal, the annual
radiation exposure to any individual does not exceed 15 millirems committed
effective dose per year. The Ground-Water Protection Requirements state that
disposal systems must be designed so that, for 10,000 years after disposal,
releases of radioactive material do not cause underground sources of drinking
water to exceed maximum contaminant levels for radionuclides as specified under
regulations in 40 CFR Part 191 that implement the Safe Drinking Water Act. The
10,000 years requirement is a change from the original set of standards, which
only required demonstration that a facility would comply with the ground-water
standards for 1,000 years. EPA was able to require a 10,000 year demonstration
of compliance at this time, because modeling capabilities have improved since the
original standard was issued. Also, more data is available to evaluate whether a
system can meet the 10,000 year containment requirement which is part of the
original standard.
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Criteria for the Certification of Compliance with 40 CFR Part 191 Disposal
Standards
EPA must certify whether or not the WIPP facility will comply with the final
disposal standards of 40 CFR Part 191. In order for DOE to emplace radioactive
wastes in the WIPP for disposal, EPA must certify that WIPP will meet these
standards. Under the Act, EPA is required to develop criteria for the
Administrator's certification of compliance with the disposal standards. This
section describes EPA's progress in developing the compliance criteria.
Implementation
One of the first steps EPA took to develop the compliance criteria was to
issue an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register on
February 11, 1993. The purpose of this notice was to provide an early opportunity
for interested parties to participate in the development of the proposed criteria.
The ANPR helped identify compliance-related issues that should be addressed in
the compliance criteria.
In developing these criteria, EPA will address compliance-related issues,
including: the procedures necessary to certify compliance with the standards; the
methods to be employed to assure the adequacy and quality of data; the
assumptions used in compliance assessment; and the level of certainty necessary
to meet the requirements. An intra-agency workgroup, established to develop the
criteria, has identified other areas to be addressed in the development of the
compliance criteria. They include quality assurance, public participation, the scope
of long-term repository performance assessment, monitoring, mechanisms for
reducing uncertainty in compliance assessment, consideration of natural and
human-initiated processes and events, institutional controls, engineered barriers,
and retrievability of the waste.
EPA has held technical exchange meetings with DOE to discuss pertinent
issues related to compliance criteria (e.g., waste characterization and quality
assurance). EPA has also met with a variety of interested parties to discuss issues
and any recommendations for compliance criteria.
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The EPA plans to issue proposed compliance criteria in the Federal Register
in 1994. EPA will hold hearings in New Mexico shortly thereafter to receive
comments on the proposal. After the Agency considers oral and written
comments on the proposal, it will develop a final set of compliance criteria and
publish it in the Federal Register. These dates do not conform with the statutory
deadlines, because uncertainties regarding EPA's funding of the FY 1994 WIPP
Program forced delays in hiring new staff to work on this project.
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Test Phase and Retrieval Plans
According to the Act, EPA was required to review DOE's test phase and
retrieval plans for testing using radioactive waste at the WIPP and issue a rule that
approves or disapproves these plans. No waste could be transported to the WIPP
for testing unless EPA approved at least part of the test phase plan and approved
all of the retrieval plan. The next section describes EPA's work on the test phase
and retrieval plans over the last year. In FY '93, EPA's efforts were focused on a
rulemaking to approve or disapprove the plans. On October 21, 1993, DOE
announced that radioactive waste tests will not be conducted at WIPP. An
expanded laboratory test program using radionuclides and hazardous waste will be
conducted in lieu of these specific tests at WIPP. EPA agrees with DOE that
performing these laboratory tests is a more effective and expeditious means of
getting to a final decision on whether or not to open the WIPP as a permanent
disposal site. Because of DOE's decision, EPA has changed the focus of its
activities to the other responsibilities under the Act.
A revised Test Plan was submitted to EPA for review in January of 1-994.
Since none of the tests involve radioactive waste at WIPP, EPA does not have to
approve or disapprove the tests by rule. EPA plans, however, to provide DOE with
comments on their revised test strategy. The Agency is currently rethinking Its
strategy for reviewing the laboratory-based test plans.
Background
In the test phase plan proposal, DOE was required under the Act to provide
EPA with two types of information. First, DOE was to describe the proposed test
phase for the WIPP site, specifying the proposed quantities and types of
transuranic wastes that would be involved in test activities. Second, DOE had to
explain in detail how the information to be provided by the tests was directly
relevant to the EPA's compliance determination, i.e., how the information would
enable the EPA to determine whether WIPP operations met 40 CFR Par: 191's
radioactive waste disposal standards as well as the Solid Waste Disposal Act
regulations issued under the Resource Conservation and Recovery Act (RCRA).
EPA could have approved DOE's test plan only if the experiments provided data
directly relevant for determining compliance with these regulations. DOE's retrieval
plan could be approved by EPA only if it provided for satisfactory recovery of
transuranic waste emplaced at the WIPP in the event retrieval of waste was
required.
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Implementation
A work group consisting of representatives of all the EPA offices involved in
this project was formed early in FY '93. The group developed a draft list of
completeness criteria for evaluating the Test Phase and Retrieval Plans for
discussion at the NACEPT WIPP Subcommittee meeting in May 1993. The
meeting took place in New Mexico and was open to the public. With input from
the committee, the work group developed a revised list of completeness criteria.
The criteria consisted of a comprehensive list of information needs.
On March 19, 1993, DOE submitted draft Test Phase and Retrieval Plans.
EPA and DOE met in an open meeting on May 12 to discuss the plans. EPA
indicated that DOE's plans were incomplete, and requested additional information
on various aspects of the plans. DOE committed to submit additional information
by May 28, so EPA could complete rulemaking within 10 months. In June, DOE
provided supplemental information. They provided draft materials and asked EPA
not to conduct rulemaking on the plans until receiving final documents, which they
intended to submit by August 20. In July, DOE and EPA held a technical meeting
in Albuquerque, NM which was open to the public. DOE briefed EPA on
supplemental information on bin tests from the documents that had been
submitted in June. EPA stated that there were still numerous test phase activities
from which technical details were missing. At the end of July, EPA met with DOE
to discuss the major problems with the Test Phase and Retrieval Plans and
provided feedback on the previous meeting. On October 21, DOE announced that
underground test with radioactive waste would not be conducted.
Now that the DOE has withdrawn its plans for testing radioactive waste at
the WIPP, EPA plans to focus more of its efforts on developing criteria for
demonstrating compliance with EPA's radioactive waste disposal standards and
compliance with the Resource Conservation and Recovery Act and reviewing and
commenting on DOE's performance assessments. The Agency will also be
preparing comments on DOE's expanded laboratory test plans. It will also review
and comment on DOE's test plans and develop a strategy to assure the quality of
all data received from DOE, including waste characterization data.
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Certification of Compliance with 40 CFR Part 191 Disposal Standards
EPA must certify that the WIPP facility complies with the final 40 CFR Part
191 disposal standards within one year of receiving DOE's application for
certification before DOE may emplace radioactive wastes in the WIPP for disposal.
EPA must also conduct recertifications of continued compliance with 40 CFR Part
191 disposal regulations every five years after disposal operations begin. This
section discusses the Act's requirements in more detail and describes EPA's initial
progress in reviewing DOE's performance assessments designed to make the
compliance demonstration.
Implementation
EPA is reviewing the performance assessment report received from DOE in
the Spring of 1993. EPA is currently using, and will continue to use, both EPA and
contractor staff in the review of WIPP performance assessments. EPA has
received, and will continue to receive, input from the public in the performance
assessment review process. In September 1993, the NACEPT WIPP subcommittee
met to discuss issues related to reducing and better characterizing uncertainty in
WIPP performance assessments which will be used to demonstrate compliance
with the 191 standards.
EPA will utilize the compliance criteria issued pursuant to the Act in
certifying the adequacy or inadequacy of DOE's submissions. EPA's evaluation will
include, but will not be limited to, DOE's use of models, the potential for disruptive
events that could affect the WIPP's performance, uncertainty and sensitivity
analyses, consequence analyses, field data, use of expert judgment, and quality
assurance procedures, EPA will also evaluate the assumptions underlying the DOE
performance analyses. Throughout this review, EPA will consult regularly with
state and local New Mexico officials, environmental groups, and other interested
parties.
The Act requires EPA's certification of compliance to be conducted by rule
as prescribed by the Administrative Procedures Act. Within six months of receipt
of DOE's application for certification of compliance, EPA will issue a proposed
finding in the Federal Register for written comment. After public hearings and in
accordance with the Act's requirements, EPA plans to issue a final determination
within one year after receipt of DOE's application.
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EPA wil! prepare a plan to review DOE's certification of compliance
application. When finished, this plan will identify the information that the Agency
believes is necessary to determine if the WIPP can protect public health and the
environment and can comply with 40 CFR 191 disposal standards and the
forthcoming 40 CFR 194 (compliance criteria for meeting 40 CFR 191 radioactive
waste disposal standards at the WIPP). EPA is building up its capability to review
performance assessments by expanding the staff's technical expertise and setting
up contracting vehicles for access to technical experts.
EPA also plans to conduct ongoing recertification reviews of the WIPP's
ability to comply with the disposal standards. As required under the law, EPA will
review its certification to determine whether or not the WIPP facility continues to
be in compliance with the final disposal regulations. This will occur no later than
five years after the initial receipt of radioactive wastes for disposal at the WIPP,
and every five years thereafter, until all the shafts at the WIPP repository have
been backfilled and sealed.
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Compliance with the Resource Conservation and Recovery Act
Substantial portions of the wastes proposed for disposal at the WIPP contain
hazardous waste subject to the Resource Conservation and Recovery Act (RCRA);
therefore, the facility must comply with these regulations. Mixed wastes are
defined as wastes that contain both hazardous wastes (subject to RCRA
regulation) and radioactive wastes {subject to regulation under the Atomic Energy
Act.) Under RCRA, DOE must ensure the safe disposition of the hazardous portion
of the wastes to be placed at WIPP. This section explains the RCRA requirements
and EPA's activities in ensuring DOE compliance with them.
Background
One of the major requirements of RCRA for the WIPP is compliance with the
land disposal restrictions. The Hazardous and Solid Waste Amendments of 1984
(HSWA), which amended RCRA, imposed substantial new requirements on the land
disposal of hazardous waste. The amendments prohibit the continued land
disposal of hazardous waste (of which mixed waste is a subset), unless either (1)
the wastes meet treatment standards specified by EPA, or (2) EPA determines that
prohibition is not required in order to protect human health and the environment.
This latter determination must be based on a demonstration by the owner/operator
of the facility receiving the waste that "there will be no migration of hazardous
constituents from the disposal unit or injection zone for as long as the wastes
remain hazardous," EPA's Office of Solid Waste is responsible for the review and
processing of "no-migration" petitions.
Implementation
In February 1989, DOE submitted a petition to EPA for a no-migration
determination covering the WIPP test phase. After a careful review of DOE's
petition and public comments on a proposed decision, EPA approved the petition
on November 14, 1990, based on a determination that DOE had demonstrated, to
a reasonable degree of certainty, that hazardous constituents will not migrate from
the WIPP disposal unit for the duration of the test phase. The approved petition
expires after ten years.
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The no-migration determination includes the following terms and conditions:
* DOE must remove the hazardous wastes from the underground
repository if it cannot demonstrate the long-term acceptability of the
disposal site by the end of the test period;
* DOE may place wastes in the WIPP only for testing purposes; "
* DOE must not place more than a specified amount of wastes in the
repository for testing purposes;
* air monitoring and waste analysis must be performed; and
* annual reports on the status of DOE's WIPP performance assessment
must be submitted to EPA during the test phase.
RCRA also requires that the State of New Mexico issue a RCRA hazardous
waste storage permit for the Test Phase. A notice announcing the availability of
the draft permit was published in New Mexico newspapers and announced on local
radio stations on August 30, 1993. The public comment period closed on January
14, 1994. EPA's regional office is responsible for providing oversight and
technical assistance to the State in the processing of the permit. The State is
responsible for enforcing the storage conditions of the permit. EPA Region 6 is
responsible for enforcing the corrective action conditions of the permit. Due to
DOE's decision on October 21, 1993, not to conduct waste tests at WIPP, the
RCRA permit and the no-migration determination for the test phase are no longer
necessary. However, DOE will need a RCRA permit and will need to show
compliance with the RCRA land disposal restrictions before mixed waste is placed
in the repository.
EPA's Office of Solid Waste coordinated its activities mandated by the Land
Withdrawal Act with the Office of Radiation and Indoor Air (ORIA), Region 6, and
the State of New Mexico. Such efforts included attendance at all NACEPT
meetings, National Academy of Science WIPP Panel meetings, DOE meetings to
discuss technical aspects of the Test Phase, and Test Plan submission.
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Compliance With Other Environmental Laws
The Act requires DOE to submit documentation to the EPA every two years
demonstrating WIPP's compliance with all applicable environmental statutes and
regulations including the radioactive waste storage standards, the Clean Air Act
(CAA), the Toxic Substances Control Act (TSCA), the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), the Solid
Waste Disposal Act (SWDA), and the Safe Drinking Water Act (SDVVA). This
documentation must be submitted throughout the test, disposal, and
decommissioning phases of the WIPP. The Agency must make a determination of
compliance with these statutes and regulations within six months of receiving
DOE's submission. Under the Act, DOE must submit its first documentation
package to the Agency by October 30, 1994. This section relates EPA's activities
and progress under this requirement.
Background
If EPA determines that DOE has not complied with any applicable Federal
law or regulation, the Agency must require DOE to develop a remedial plan within
six months of the determination of noncompliance. If the remedial plan is
inadequate to bring the WIPP facility into compliance, the Agency must make a
determination of inadequacy through rulemaking. If this occurs during the test
phase, the Act requires DOE to implement the retrieval plan and decommissioning
and post-decommissioning plans required by the law. If a determination of
noncompliance is made by rule during the disposal or decommissioning phase, DOE
must retrieve wastes to the extent practicable and implement the decommissioning
and post-decommissioning plans.
Implementation
EPA Region 6 is actively pursuing the evaluation and implementation of
applicable environmental regulations at WIPP. Experts have been organized into a
Regional Task Force to enforce the many environmental regulations. Region 6 is
developing an action strategy to execute its regulatory oversight of both air and
water monitoring issues, evaluate equipment and personnel operational procedures,
and conduct quality assurance audits and evaluations of each of these areas. The
office will use the strategy to ensure that DOE will be in compliance with all
applicable environmental regulations prior to and during the Disposal Phase and the
Decommissioning Phase at the WIPP.
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Oil and Gas Lease Provision of the W1PP Land Withdrawal Act
The presence of gas and oil leases on the WIPP site has raised concerns
about the possibility for human intrusion at the site and the ability of the repository
to contain the waste.
Background
EPA must determine whether federal government acquisition of existing oil
and gas leases at the WIPP site is required for the WIPP to comply with the
disposal standards or the Resource Conservation and Recovery Act. There is no
specific deadline for this determination, but DOE cannot begin disposal operations
until either DOE acquires the relevant oil and gas leases or EPA determines that
such acquisition is not required.
Implementation
EPA Region 6 is working with EPA Headquarters to evaluate the potential
effect of Oil and Gas Drilling. This evaluation will examine all related technical
information. DOE submitted a request that EPA decide this issue at this time. EPA
believes that this decision is premature and needs to be based on later, more
accurate, performance assessments.
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WASTE ISOLATION PILOT PLANT
LAND WITHDRAWAL ACT OF 1992
IMPLEMENTATION SCHEDULE HIGHLIGHTS
Date gegulatorv Activities
2/93 Radioactive Waste Standards proposed in Federal
Register.
Hearings on Radioactive Waste Standards in New
Mexico.
Advance Notice of Proposed Rulemaking for Compliance
Criteria published in Federal Register.
3/93 Received Draft Test Phase and Retrieval Plans from DOE.
Compliance Criteria ANPR comment period closed.
4/93 Radioactive Waste Standards comment period closed.
Request for additional information on DOE Test Phase
and Retrieval Plans.
5/93 National Advisory Council on Environmental Policy and
Technology (NACEPT) Meeting on test phase and
retrieval plans in New Mexico.
9/93 NACEPT Meeting on compliance criteria in New Mexico.
11/93 Comments submitted to DOE on December 1992
Preliminary Performance Assessment for the WIPP.
12/93 Promulgated Final Radioactive Waste Standards
7/94 Proposed Compliance Criteria to be published in Federal
Register.
8/94 Hearings on Proposed Compliance Criteria in New
Mexico.
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9/94 Compliance Criteria comment period closes.
10/94 DOE must submit to EPA its first documentation package
demonstrating WIPP's compliance with all applicable
environmental statutes and regulations.
7/95 Issue Final Compliance Criteria in Federal Register.
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