United States        Air And          EPA 402-R-93-002
           Environmental Protection    Radiation         March 1993
           Agency          (ANR-460)
&EPA     Implementation Strategy
           For The Waste Isolation
           Pilot Plant Land Withdrawal
           Act Of 1992
                                  Printed on Recycled Paper

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                       TABLE OF CONTENTS


INTRODUCTION                                             Page

     Background                                               2

     WIPP Land Withdrawal Act Requirements                       4

     Implementation Principles                                   5

MANAGEMENT OF WIPP IMPLEMENTATION

     EPA Management                                          6

     The Regulatory Process                                     6

     Annual Status Report to Congress                             7

COMMUNICATIONS/CONSULTATION

     Communications Activities                                   8

     Consultation    .                                           9

IMPLEMENTATION OF EPA OVERSIGHT OF THE WIPP

     40 CFR Part 191: Environmental Standards for the Management
     and Disposal of Spent Nuclear Fuel, High-level and
     Transuranic Radioactive Wastes

          Background                                          10
          Implementation                                       11
          Timetable                                           12

     Test and Retrieval Plans

          Background                                          13
          Implementation                                       13
          Timetable                                           14

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Criteria for the Certification of Compliance
with 40 CFR Parti 91
      Background                                            15
      Implementation                                         15
      Timetable                                              15
Certification of Compliance
      Background                                            16
      Implementation                                         16
      Timetable                                              16
Compliance with the Resource Conservation and Recovery Act
      Background                                            18
      Implementation                                         18
Compliance with Other Environmental Laws                      20
Oil and Gas Lease Provisions
      of the WIPP Land Withdrawal Act                          20
Implementation Schedule Highlights                             21
Conclusion                                                  24

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INTRODUCTION

      On October 30,1992, the President signed into law the Waste Isolation Pilot
Plant (WIPP) Land Withdrawal Act (Public Law 102-579). The Act provides an
extensive role for the U.S. Environmental Protection Agency (EPA) in overseeing trie  .
U.S. Department of Energy's  (DOE) activities at the WIPP and in ensuring that such
activities comply with environmental laws and regulations. The WIPP is a potential
long-term disposal facility for transuranic radioactive wastes1 under development by
DOE in southeastern New Mexico.  Transuranic wastes are long-lived radioactive
wastes generated as by-products from nuclear weapons production. The WIPP is
designed to provide a site for the long-term disposal of these radioactive wastes.

      The new Act gives EPA the responsibility of overseeing many of DOE's activities
at the WIPP, beginning with a test phase and continuing throughout its operation and
decommissioning, if EPA determines that those phases should be allowed. The Act
requires EPA to issue final radioactive waste disposal standards and develop criteria
for-certifying DOE compliance with  those standards. EPA must also  review and
approve DOE's plan for testing the WIPP's suitability as a permanent disposal facility
and for removing the waste if necessary.  In addition, EPA must determine on an
ongoing basis whether DOE is complying with all environmental laws, regulations, and
permit requirements that are applicable to the WIPP. One of the key environmental
laws affecting the WIPP is the Resource Conservation and Recovery Act (RCRA).
RCRA regulations require DOE to ensure the safe disposal of the hazardous wastes to
be placed at WIPP.                                             ,

      Also  under the WIPP Land Withdrawal Act,  DOE is required to submit to EPA an
application for certification of the WIPP within seven years of the initial receipt of waste
at the facility for. the test phase. EPA is required to certify-the WIPP .within one year of
receipt of the application.  If EPA does not certify the WIPP within ten years of the  ,
initial.receipt of waste, DOE is required to implement the retrieval plan and remove all
waste from  the WIPP.  EPA may extend the certification-process for another two years.
      *  The wastes may  also  include a very limited  amount of
fission products which result when transuranic waste  is produced.

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       This Implementation Strategy describes EPA's plan for carrying out its
 responsibilities under the new Act but does not address the responsibilities of other
 federal or state agencies in overseeing the development of the WIPP and transporting
 wastes there. The introductory section provides background information on the Waste
 Isolation Pilot Plant.  It also lays out the basic principles EPA will follow in its
 implementation of the new law. The "Management of WIPP Implementation" section
 discusses EPA's coordination of WIPP functions and the process for developing and
 issuing regulations.  This is followed by a "Communications/Consultation" section
 which explains EPA's communications philosophy and the importance of public
 participation  in the regulatory process.  The "Implementation of EPA Oversight of the
 WIPP" section summarizes EPA's oversight responsibilities.  It includes a discussion of
 major issues the Agency will need to address as well  as a timetable,  entitled
 "Implementation Schedule Highlights," that includes important regulatory activities and
 their dates,
 Background

       Scientists and engineers have spent many years investigating the use of deep,
 underground geologic repositories as a long-term solution for the disposal of
 radioactive wastes produced by defense and civilian nuclear activities.  Because
 radioactive materials can remain hazardous for thousands of years, long-term disposal
 solutions are necessary. Currently, radioactive waste is temporarily stored using
 above-ground methods.

       In the mid-1950's, the National Academy of Sciences recommended salt
 deposits in the earth as a promising medium for disposal of radioactive wastes.  Salt
 deposits have several advantages:  they are often found in stable geological areas  '
fwith little or no earthquake activity, they are usually devoid of groundwater, they are
 relatively easily mined, and they will creep or move  to fill any cracks or gaps in their
 surfaces that might develop. Because of these factors, bedded salt deposits became
 one of the leading candidates for the location of a disposal site.  At the invitation of the
 .Governor of New Mexico and local officials, the Energy Research and Development
 Administration (which managed the nuclear weapons program until DOE was created
 in 1977) began site investigations in the Carlsbad, New Mexico area in 1975.  The
 WIPP site, near Carlsbad,.contains thick salt beds that are 225 million years old  and is
 in a geologically stable area.                 .

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      In 1979, Congress mandated the construction and development of the Waste
Isolation Pilot Plant (WIPP) under Public Law 96-164. The law directs the U.S.
Department of Energy (DOE) to develop the WIPP for "...the express purpose of
providing a research and development facility to demonstrate the safe disposal of
radioactive wastes, resulting from the defense activities and programs of the United
States...." As required by the law, DOE entered into a written agreement with the
State of New Mexico to resolve any concerns the state may. have regarding public
health and safety. Construction of the WIPP facility  began in 1981.

      In 1978, the Environmental Evaluation Group  (EEG) was established to. perform
a continual, independent technical evaluation of the  WIPP Project with respect to
protecting the public and  the environment from exposure to radiation.  In 1988, the
Congress directed DOE to fund the EEG.

      The land area of the WIPP is owned by the federal government. With the
enactment of the WIPP Land Withdrawal Act of 1992, Congress transferred jurisdiction
over the land from the Department of the Interior to  DOE'. When the WIPP facility is
completed, it will cover 100 acres and will have the capacity to store 850,000 drums of
transuranic radioactive wastes.  Most of such waste consists of ordinary  laboratory
items including:  rags, rubber gloves, shoe covers, cloth lab coats, plastic bags,
laboratory glass, tools, and machinery that have become radioactively contaminated
during routine operations at national defense facilities- lAccording-to DOE, about 97
percent of the volume of transuranic wastes to be disposed at the WIPP  will be
contact-handled transuranic waste. - This type of waste emits radioactive  particles
called alpha particles which, if released, can be dangerous if inhaled or ingested.  It
will be packaged in 55-gallon metal drums and placed in rooms carved out of the salt
rock. A small percentage of the volume of wastes potentially destined for disposal at
the WIPP, if it is approved as'a disposal site, will be remote-handled transuranic waste
which emits higher levels  of penetrating radiation.  'This type of waste will be packaged
in a carbon steel cylinder and placed in a pre-drilled hole in a-disposal room wall that
will be plugged.  While the volume of remote-handled radioactive waste intended to be
disposed of at the WIPP is very small, it is expected to  account for approximately one-
third of the total radioactivity of the disposed materials.

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W1PP Land Withdrawal Act Requirements

      Regulatory Actions

The WIPP Land Withdrawal Act requires EPA to take the following regulatory actions:

      p     Radioactive Waste Standards
            Develop environmental protection standards for the management and
            disposal of spent nuclear fuel and high-level and transuranic radioactive
            wastes, which will apply to all sites except those characterized under the
            Nuclear Waste Policy Act.

      o     Test and Retrieval Plan Rule
            Review DOE's test and retrieval plans and determine whether they meet
            the requirements of the WIPP Land Withdrawal Act.

      o     Compliance Criteria
       .-  '  Establish criteria for determining whether the WIPP complies with-
            environmental protection standards for the disposal of transuranic
            wastes.

      o     Compliance Certification
            Evaluate whether the WIPP complies with environmental protection
            standards for disposal of transuranic radioactive wastes.


      Determinations of Compliance with Environmental Regulations

In addition to these regulatory actions, EPA will evaluate on a biannual basis DOE's
performance assessments and determine if the WIPP is in compliance with all.
applicable environmental regulations.

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Implementation Principles

      The WIPP Land Withdrawal Act-provides an extensive role for^EPA in overseeing
the WIPP andlrfenslfring that the facility complies with environmental laws and
regulations.  The following principles will guide EPA in its implementation of these new
statutory responsibilities.

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 will 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 ah 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 WIPP IMPLEMENTATION
EPA Management

      EPA is committed to meeting the schedule of required oversight responsibilities.
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 most of EPA's responsibilities under the WIPP Land Withdrawal Act.
However, other EPA offices are responsible for determining whether the WIPP
complies with their respective requirements as well.  Within  ORIA, the Criteria and
Standards Division (CSD) has the lead on WIPP  oversight responsibilities.  OR1A/CSD
will be working closely with the following EPA offices on WIPP oversight and
communications activities:  the Office of Solid Waste (OSW); the Office of General
Counsel (OGC); the Office  of Policy, Planning, and Evaluation (OPPE); the Office of
Enforcement (OE); and EPA's Region 6 office.

      EPA Headquarters' Office of Solid Waste and EPA's Region 6 office will ensure
that the WIPP complies with RCRA.  The Office of General Counsel will provide legal
advice in the development of the regulations  under the new Act. The Office of Policy,
Planning, and Evaluation will provide policy advice and ensure coordination of Agency
policy on the WIPP.  The Office of Enforcement will assist the Agency's program
offices in determining whether the WIPP complies with all appropriate laws and
regulations.  Region 6 will bring enforcement  actions if appropriate.
The Regulatory Process

      EPA will develop regulations for waste disposal; DOE's test and retrieval plans,
the compliance criteria, and the determination of compliance with radioactive waste
disposal standards.  The process for developing federal regulations was established
by the Administrative Procedures Act. In this process, the public is informed of a  •
proposed Agency action through a notice of proposed rulemaking which is published
in the Federal Register. Thereafter, the Agency accepts written public comments on
the proposed rule. In addition, the Agency typically holds one or more public hearings
for interested parties to provide oral testimony on EPA's proposal. The EPA takes the
testimony and written comments into consideration in developing the final regulations.
Although the WIPP Land Withdrawal Act authorizes EPA to conduct rulemakings
without public hearings, EPA plans to hold public hearings on all of the proposed
rulemaking actions under the law.

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      The Agency often publishes Advance Notices of Proposed Rulemaking (ANPRs)
before developing a proposed rule.  These notices inform the public of the Agency's
general intentions and solicit input on the issues that will be raised in developing the
rule. The Agency issued an AN PR in the Federal  Register on February 11, 1993, for
the Compliance Criteria regulation to obtain public comment on the major issues in .
that rulemaking.

Annual Status Report to Congress

      Section 23(a)(2) of the WIPP Land Withdrawal Act requires the 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."  The first report will be
submitted by September 30,1993.                        -,-..•'
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Communications/Consultation
      EPA is committed to maintaining open lines of communication with the public,
interest groups, and other governmental organizations in carrying 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 educate and
inform interested parties regarding EPA's oversight functions at the WIPP and to
encourage participation in the regulatory process on both technical and non-technical
matters. This document is part of that effort.                  :   "

Communications Activities

      EPA has already begun efforts to inform the public of its role with regard to the
WIPP.  At two public meetings conducted in New Mexico in December 1992, Agency
representatives discussed implementation plans and answered questions about EPA's
role and proposed plan. EPA has conducted several meetings and briefings with
Congressional staff,  public interest groups, and state and local government officials in
New Mexico. The Agency will continue to hold these types of meetings to  inform
interested  parties of its WIPP oversight activities.

      EPA has established a rulemaking record or docket in Washington, DC at its
headquarters.  Informational dockets have also been set up in  New Mexico at the
Carlsbad Public Library in Carlsbad, the Zimmerman Library at the University of New
Mexico in Albuquerque, and the Fogelson Library at the College of Santa Fe. The
dockets contain proposed rules, background information, public comments; and other
documents that are relevant to rulemaking decisions.

      EPA will develop public information materials describing  its role regarding the
WIPP and specific regulatory program elements.  To date, the Agency has  produced
fact sheets describing EPA's  role  in overseeing the WIPP and on EPA's proposed
amendments to environmental protection standards for the disposal of transuranic
waste. The Agency will produce additional fact sheets to explain EPA's final radioactive
waste standards, the test and retrieval plan review, promulgation of compliance criteria
for the disposal standards, and the radioactive waste disposal standards compliance
determination. EPA is now considering other forms of public information and
outreach, including booklets in both English and Spanish, videotapes, and  newspaper
and journal articles.
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Consultation                                                            :  >

      EPA will consult frequently with the Department of Energy, the State of New
Mexico, and affected local governments regarding the status of the WIPP Land
Withdrawal Act implementation. .The Agency, will also consult with the Environmental
Evaluation Group, the National Academy of Sciences, and other advisory and public
interest groups. These consultations will not replace the standard notice and
comment process for proposed rulemakings, but instead will supplement and enhance
it.

      EPA is also establishing a subcommittee under the National Advisory Council
on Environmental Policy and Technology (NACEPT) to advise the Agency in its
implementation of the Land Withdrawal Act. The subcommittee will, be asked to
evaluate the Agency's criteria for review of the DOE test and retrieval plans, options for
compliance criteria, and the assessment of the.WIPP's ability to comply with the
radioactive waste disposal standards.
       i-      .        »            'j.;      •      •        .       '
      EPA also recognizes the need for open, ongoing  communication between EPA .
and DOE staff with regard to technical issues on the test and retrieval plan. This
communication is particularly important in light of the tight deadline for trie approval or
disapproval decision. EPA will arrange meetings with DOE and other interested groups
whenever necessary and will open these meetings to the public.
                     - .    "             ':    • -   '      - •
      A special toll-free number (effective on March 23,  1993) with a recorded   .
message has been created to inform callers of upcoming public meetings and to
highlight EPA's WIPP activities.

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IMPLEMENTATION OF EPA OVERSIGHT OF THE WIPP

40 CFR Part 191:

Environmental Radiation Protection Standards for the Management and Disposal
of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes
                            t-if.

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), which was 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
10,000 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 cautious 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, the standards
were returned to the Agency for reconsideration. The court identified the following
three problems with the standards:

      (1)   the inconsistency between Ground-Water Protection Requirements
            (Section 191.16) in 40 CFR Part 191 and EPA's requirements for
            protection of ground-water developed for underground injection
         -   programs under the Safe Drinking Water Act in terms of protection levels .
            and the type of ground-water protected,      •                         •

      (2).   the inadequacy of the rationale provided to support the 1,000-year time
            frame for the Individual and Ground-Water Protection Requirements, and -

      (3)   the inadequacy of the 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 which the court found
problematic (i.e.. the Individual and Ground-Water Protection Requirements).
Therefore, EPA is proceeding with the next step in the evolution of 40 CFR Part 191,
development of individual and ground-water protection requirements, as amendments
to the reinstated  standards.

Implementation
                                                  .'' ts
      EPA's proposed 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 Agency faces two major issues in
developing these standards.

      First: What is an appropriate level of protection?  Deciding this issue requires
an examination of the risks and benefits associated with radioactive waste disposal
and the cost-effectiveness of reducing the  risks through engineered controls.

      Second: What is an appropriate length of time over which the protections
should apply?  Since compliance with the requirements is based on long-term
modeling projections, a period of time for assessing the performance of the disposal
system must be prescribed.  In general, this involves balancing the costs, benefits,
and the practicality of setting longer time frames and assessing the uncertainties
created by these longer time-frames.

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Timetable

      The Act requires the Agency to finalize its disposal standards by April 30, 1993.
The process for finalizing standards involves publishing a proposed set of standards in
the Federal Register, receiving comments on the proposal, and then publishing a final
set of standards in the Federal Register.

      EPA published a proposal in the Federal Register in February 10,1993. The
Agency held hearings in New Mexico in February to receive comments on the
proposal. 'After considering written and oral comments received on the proposal, EPA
will develop a final version and publish it as an amendment to Part 191 of Title 40 of
the Code of Federal Regulations (40 CFR Part 191).  The statutory deadline for .this is
April 30, 1993.                .:        :           .    -
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 Test and Retrieval Plans

 Background
   V         -                  -                .,;.*.*
   : -   The Act requires EPA to review DOE's test and retrieval plans for radioactive
 waste and issue a rule that approves or disapproves these plans, in whole or in part,
 by August 30, 1993.  No waste can be transported to the WIPP unless EPA approves
 at least part of the test plan and approves of the retrieval plan.  The test plan will
 include a description of the tests and experiments DOE plans to conduct: with waste
 placed in the WIPP to determine whether the facility can comply with radioactive and .
 hazardous waste disposal standards.  The retrieval plan must be designed to ensure  •
 that the waste can be removed from the WIPP safely during the test phase in the
 event that removal of the waste is required.  DOE must submit modifications to the test
 or retrieval plans to EPA for review, and EPA must make its approval determination by
 rulemaking within 3 months of their submission.        •             	

 Implementation          .

       For the test phase plan proposal, DOE with provide EPA with two types of   .
 information.  First, DOE: will describe the proposed test  phase for the WIPP site,
 specifying the proposed quantities and types of transuranic wastes that will be
 involved in test activities. Second, DOE will explain in detail how the information to be
 provided by the tests is directly relevant to the EPA's  compliance determination, i.e..
 how the information will enable the EPA to determine whether WIPP operations meet.
 40 CFR Part 191's radioactive waste disposal standards and regulations issued under
 the Resource Conservation and Recovery Act (RCRA).  EPA wilhapprove DOE's test
 plan only if the experiments .provide data directly relevant.for determining.compliance
.with these regulations.  EPA will develop appropriate criteria to evaluate the test plan.
•The criteria will consider how the data will ultimately be  used in compliance
 demonstrations and whether the design of the experiment will yield reliable data. When
 EPA proposes its decision on the test plan, the evaluation criteria used will be
 identified.

      : DOE's, retrieval plan will be approved by EPA only if it provides for satisfactory
 recovery of transuranic waste emplaced at the WIPP in  the event retrieval of waste is
 required.  In evaluating whether waste emplaced during the test phase can be
 satisfactorily retrieved, EPA must consider the different types of tests that will be
 conducted and the types of emplacement used.  If it is determined at any time during  .
 the test or disposal phase that the WIPP is no longer  in compliance with the disposal
 standards, the waste needs modification or repackaging, or.the public health and
 safety and the environment are no longer protected, the waste will be retrieved from •
 the WIPP.
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      EPA technical staff will meet with DOE technical staff on a regular basis to allow
DOE to answer EPA's technical questions quickly.  These meetings will be open to the
public. EPA will provide notice of these meetings through its WIPP information phone
line.
Timetable

      DOE must submit its test and retrieval plans to EPA no later than May 30, 1993.
After receiving and evaluating the plans, EPA will propose its approval or disapproval
decision.  Shortly thereafter, a public hearing on the proposed rule will be held in New
Mexico. According to the Act, the final approval or disapproval determination must be
published by August 30,1993.  However, EPA will require ten months from the time it
receives the test and retrieval plan from DOE to publish a final approval  or disapproval
decision.  Therefore, assuming the test and retrieval plan is submitted to the Agency in
early March 1993, EPA plans to publish a final decision on the plan in December 1993.
If EPA approves the test and retrieval plans, DOE may emplace the initial shipment of
transuranic waste at WIPP.  One year after the initial emplacement of transuranic
waste and every year after that during the test phase, DOE, in consultation with EPA,
must determine if the waste at the WIPP remains and will remain retrievable. The'
following provision of the Act (Sec."10(a)(4)) prescribes EPA's responsibilities  if DOE
determines that the waste will not remain retrievable:

            "(4) FAILURE TO MAINTAIN RETRIEVABILITY

      Upon a determination by the Secretary under paragraph (2) that transuranic
      waste cannot remain retrievable, and that corrective action is not  possible, the
      Administrator and the State may, pursuant to the authorities provided in the
      Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or any other applicable
      hazardous waste law, take action to ensure the retrieval or removal of all
      transuranic waste in WIPP."
      DOE is required to submit an application to EPA for certification of the WIPP
within seven years of the initial receipt of waste at the facility for the test phase. EPA
is required to certify the WIPP within one year after receipt of DOE's application.  If
EPA does not certify the WIPP within ten years of the initial receipt,  DOE must
implement the retrieval plan and remove all waste from the WIPP. EPA may extend
the certification process for another two years.
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 Criteria for the. Certification of Compliance with 40 CFR Part 191

 Background

   :    The WIPP Land Withdrawal Act requires EPA to certify whether or hot the.WIPP
..facility-complies with the final disposal regulations of 40 CFR Part 191,  EPA must
 certify that the WIPP facility complies with 40 CFR Part 191 before DOE may empface
 radioactive wastes in the WIPP for permanent disposal.

     . Under the new law, EPA is required to develop criteria for the Administrator's
 certification of compliance with 40.CFR Part 191.  (Prior to the enactment of the WIPP
 Land Withdrawal Act, DOE alone was responsible for implementing the 40 CFR Part
 191 disposal standards at the WIPP and for developing compliance criteria as
 appropriate.)

 Implementation

       in issuing compliance criteria pursuant to the Act, EPA will specify requirements
 for implementing the 40  CFR Part 191 disposal standards in  order to clarify any
 compliance-related ambiguities, EPA will address the main 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, and the
 assumptions used in compliance assessment.

 Timetable

       The Act requires EPA to issue proposed compliance criteria in the Federal
 Register by October 30,  1993.  EPA will hold hearings in New Mexico shortly
 thereafter to receive comments on the proposal. After the Agency considers oral and
 written comments received on the proposal, it will develop a final set of compliance   ..
 criteria and publish it in the Federal Register by October 30,  1994.

       One of the first steps EPA took to develop the compliance criteria was to issue
 an Advance Notice of Proposed Rulemaking  (ANPR), in February 1993.  EPA;s
 purpose in issuing this notice is to provide an early opportunity for interested parties to
 participate in the development of the proposed criteria, because the public will have
 the opportunity to comment on the ANPR. The ANPR should also be helpful in
•identifying compliance-related issues that should be addressed in the compliance
 criteria. The ANPR was  issued in the Federal Register on February 11, 1993.
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Certification of Compliance with 40 CFR Part 191

Background

      Under the WIPP Land Withdrawal Act, EPA must certify that the WIPP facility
complies with the final 40 CFR Part 191 disposal regulations before DOE may emplace
radioactive wastes in the WIPP for disposal.  In preparation for EPA's compliance
certification,  DOE must submit biennial performance assessment reports throughout
the test phase of activities at the WIPP.  EPA will evaluate these assessments and
provide comments to DOE.  The Act also requires EPA to conduct recertifications of
continued compliance with 40 CFR Part  191 disposal regulations every five years after
disposal operations begin.

Implementation

      In  determining and certifying the WIPP's ability to comply with 40 CFR Part 191,
EPA will review materials developed and submitted by DOE. EPA will utilize the
compliance criteria issued pursuant to the Act in certifying the adequacy of DOE's
submissions. EPA's evaluation will include, but 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.

Timetable

      The Act requires DOE to submit an application for certification of compliance to
EPA within seven years of the date of the first receipt of radioactive wastes at the
WIPP for the test phase. EPA must certify whether the WIPP facility will comply with
40 CFR Part 191  within one  year after receipt of DOE's application.

      If,  upon the expiration of a ten-year period beginning on the date of the first
receipt of radioactive wastes at the WIPP for testing, EPA has not certified that the
WIPP facility will comply with the disposal standards, the Act requires DOE to retrieve
any wastes emplaced in the WIPP for testing purposes and proceed with the closure
or "decommissioning" of the facility.  The Act allows the Agency to extend the period
of its review by two years if the Agency determines that additional time is necessary to
complete the certification of  compliance or for the certification to become effective.
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      EPA plans to review and comment on DOE's preliminary performance
assessments which will be issued throughout the test phase of activities at the WIPP.
The Agency will make any comments on these preliminary assessments available to
the public.

      The Act requires EPA's certification of compliance to be conducted by rule
pursuant to 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.

      EPA also plans to conduct ongoing recertification reviews of the WIPP's ability
to comply with the disposal standards.  As required under the-law; recertification 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

Background

      Substantial portions of the wastes proposed for disposal at the WIPP are
designated as mixed wastes under the Resource Conservation and Recovery Act
(RCRA).  Mixed wastes are defined as wastes that contain both hazardous wastes
(subject to RCRA regulation) and radioactive wastes subject to the Atomic Energy Act.
Regulation under RCRA imposes certain requirements on DOE to ensure the safe
disposition of the hazardous portion of the wastes to be placed at WIPP.

Implementation

      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.

      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 concluded that DOE had
demonstrated, to a reasonable degree of certainty, that hazardous constituents will not
migrate from the WIPP disposal unit under the testing conditions proposed by DOE,
The approved petition expires after ten years.

    ,  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 certain amount of wastes in the
            repository for testing purposes;
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      *     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.

      As a result of the WIPP Land Withdrawal Act, EPA (OSW and EPA Region 6)
must determine that DOE; has complied with the terms and conditions of the RCRA no-
migration determination before the WIPP test phase can begin. EPA will make this
determination based upon its review of DOE's annual RCRA compliance report
(submitted most recently in November 1992), other relevant materials, and site
inspections.  EPA's regional office in Dallas, Texas has the responsibility for enforcing
the terms and conditions of this determination.

      RCRA also requires that the State of New Mexico issue a.RCRA hazardous
waste permit. This permit sets forth the specific .standards that DOE must follow to
effectively manage the hazardous wastes at the WIPP facility.  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 conditions of the, -
permit.

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Compliance With Other Environmental Laws

      The Act requires the Department of Energy to submit documentation to the
Agency 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 (SDWA).  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. The
EPA offices that are responsible for implementing each of the applicable laws and
regulations will make their respective recommendations to the Administrator.  Under
the Act, DOE must submit its first documentation package to the Agency by October
30, 1994.

      If EPA determines  that DOE has not complied with an applicable law or
regulation, the Agency must require DOE to develop a remedial plan within six months
of the determination of noncompliance. If the Agency determines that the remedial
plan is inadequate to bring the WIPP facility into compliance, it must issue a
rulemaking to make this determination formal. If this occurs during the test phase, the
Act requires DOE to impiement 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 possible and implement the decommissioning and post-
decommissioning plans.

Oil and Gas Lease Provision of the WIPP 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. As a result, 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.
                                     20

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WASTE ISOLATION PILOT PLANT LAND WITHDRAWAL ACT OF 1992
             IMPLEMENTATION SCHEDULE HIGHLIGHTS
Date                              Regulatory Activities
12/92                  EPA representatives visit the WIPP site and-brief state and
                       local officials on EPA's role in overseeing the WIPP.
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.
    i
3/93                   Expected receipt of Test and Retrieval Plans from DOE.
                       Compliance Criteria ANPR comment period closes.
4/93                   National Advisory Council on Environmental Policy and
                       Technology (NACEPT) Meeting.
                       Radioactive Waste Standards comment period closes.
4/30/93*               Final Radioactive Waste Standards published in Federal
                       Register.
6/93                   NACEPT Meeting.
8/93                   Proposed Test and Retrieval Plan Rule published in Federal
                       Register.**
                       Hearings on Proposed Test and Retrieval Plan
                       Determination in New Mexico.**
9/93     ,             Test and Retrieval Plan Determination comment period
                       closes.**
                       Submit first annual report to Congress on the status of and
                       resources required for the fulfillment of EPA's
                       responsibilities under the Act.
                       NACEPT Meeting.
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10/30/93*              Proposed Compliance Criteria published in Federal
                        Register.

11/93                   Hearings on Proposed Compliance Criteria in New Mexico.

12/93                   Publish Final Test and Retrieval Plan Rule Notice in Federal
                        Register.

                        Compliance Criteria comment period closes.

5/94                    NACEPT Meeting.

10/28/94*              Issue Final  Compliance Criteria in Federal Register.

                        DOE must submit to EPA its first documentation package
                        demonstrating WIPP's compliance with all applicable
                        environmental statutes and regulations.

*  These dates are statutory deadlines.
** These dates are contingent upon receiving the test and retrieval plan in early
March.  EPA will require ten months from receipt of the plan to publish a final decision.
The 12/93 date for publishing the final test and retrieval plan decision is four months
past the statutory deadline.

Note: NACEPT Meeting dates are subject to change.
                                      22

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                    Compliance Certification Schedule
Date

Date Unknown

Once/yr every
year after
initial emplace-
ment of wastes

Once/yr every
two years after
initial emplace-
ment of wastes

Once/yr every
2 years after
initial emplace-
ment of wastes
Within 7 years
after initial
emplacement of
waste (Frame of
Reference Date
"FRD")

3 months after FRD

6 months after FRD


7 months after FRD

9 months after FRD

12 months after FRD
            Activities

Receipt of transuranic waste at the WIPP for the test phase.

DOE, in consultation with EPA, must determine every year
during test phase that waste in the WIPP is and will remain
retrievable.
DOE is required, every two years during test phase, to
submit performance assessment reports analyzing long-
term performance of WIPP.  EPA to review/comment
within 120 days.

DOE is required, during the test phase, to submit
documentation of its compliance with all applicable
environmental laws and regulations. EPA to determine
within six months of each submission whether DOE has
complied.

DOE submits to EPA an application for certification of
compliance.
NACEPT Meeting,

Publish Proposed Certification Determination in Federal
Register.

Hearings in New Mexico.

NACEPT Meeting.

Publish Final-Certification Determination in Federal Register.
                                     23

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CONCLUSION

      The WIPP Land Withdrawal Act of 1992 assigns EPA a prominent role in
overseeing the WIPP. EPA must finalize radioactive waste disposal standards, review
and approve or disapprove DOE's test and retrieval plans, develop criteria for the
certification of compliance with waste disposal standards, and determine whether the
WIPP can comply with the disposal standards and other environmental laws.
Decisions will be made based on the best available scientific and technical data.
Throughout this process, EPA will maintain open lines of communication with DOE, the
public, interest groups, and other government organizations to ensure sound public
policy decisions. By minimizing the risks from radioactive waste disposal, EPA will
advance its mission to protect the environment and the'health and welfare of American
citizens for generations to come.

FOR MORE  INFORMATION

      For more information about EPA's role under the WIPP Land Withdrawal Act,
contact:

      U.S. Environmental Protection Agency
      Attn. Cheryl Malina
      Policy and Public Information Section
      Office of Radiation and Indoor Air
      401 M St., SW (6602J)
      Washington, DC 20460
      (202)233-9360

      For information about defense transuranic waste, waste transportation, WIPP
worker safety, and related topics, write to one of the appropriate offices listed below:

      U.S. Department of Energy (DOE)                                       '

      Attn. Tracey Loughead
      Public Relations Intergovernmental Affairs Office
      WIPP Project Integration Office
      U.S. Dept. of Energy
      Albuquerque Reid Office                      .                   •   ,.-,
      PO Box  5400
      Albuquerque, NM 87185-5400     ;      .......       .         a      '
 "    (505)845-5977
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U.S. Nuclear Regulatory Commission (NRG)

Charles E. MacDonald, Chief
Transportation Branch
NRC
Washington, D.C. 20555
(301)504-2489


Administration (DOL/OSHA)

Joanne Goodell
Directorate of Policy   .                          .
RoomN3647      .
DOL/OSHA
200 Constitution Ave., N.W.
Washington, D.C.  20210
(202) 219-8067

U.S. Department of Labor/Mine Safety and Health Administration
(DOL/MSHA)

Vernon Gomez, Administrator
 for Metal and Nonmetal
DOL/MSHA
Room 728
4015 Wilson Blvd.
Arlington, VA 22203
(703) 235-1565

U.S. Department of the Interior (DOIl

Lillian K. Stone, Chief
Energy Facilities Division
Office of Environmental Affairs (MIB2340)
Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
(202)208-6128

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U.S. Department of Health and Human Services/National Institute of
Occupational Safety and Health fPHHS/NIOSm

Richard W. Hornung, Associate Director
 for Energy Related Health Research  (R44)
NIOSH
4676 Columbia Parkway
Cincinnati, OH 45226
(513)841-4400

Environmental Evaluation Group (EEG)

Robert H. Neill, Director
Lokesh Chaturvedi, Deputy Director
Environmental Evaluation Group
7007 Wyoming Blvd., NE
Suite F-2
Albuquerque, NM 87109
(505) 828-1003

National Academy of Sciences (MAS)

Ina B. Alterman, Staff Officer
Panel on the WIPP
Board of Radioactive Waste Management
National Research Council
Rm. 456HA
2101 Constitution Ave., NW
Washington, DC 20418
(202) 334-2748
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