United States Air and Radiation EPA 402-R-98-010
Environmental Protection (6602J) March 1999
Agency
Implementation of the
Waste Isolation Pilot Plant
Land Withdrawal Act
FY 1998 Report to Congress
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TABLE OF CONTENTS
Page
I. Executive Summary 1
II. Introduction 4
III. Implementation Principles 6
IV. 1996 WIPP Land Withdrawal Act (LWA) Amendments 7
V. EPA's Responsibilities under the LWA: Management and Resources 8
VI. EPA's Responsibilities under the LWA: Regulatory Activities
A. 40 CFR Part 191: Environmental Radiation Protection Standards
for the Management and Disposal of Spent Nuclear Fuel,
High-level and Transuranic Radioactive Wastes 10
1. Background 10
2. The Revised Standards 11
B. 40 CFR Part 194: Criteria for the Certification of Compliance
With 40 CFR Part 191 Disposal Regulations 12
C. Certification of Compliance with 40 CFR Part 191 Disposal
Regulations
1. Review Activities 14
2. Proposed and Final Notice of Certification 15
3. Continuing Compliance 16
D. Oil and Gas Lease Provisions of the WIPP Land Withdrawal Act 19
E. Guidance for 40 CFR Part 191, Subpart A 20
F. Compliance with the Resource Conservation and Recovery Act 21
G. Compliance with Other Federal Environmental Laws 22
VII. Communications and Consultation Activities 24
VIII. Appendix: WIPP LWA Implementation Highlights 25
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I. 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. The Act
gives the U.S. Environmental Protection Agency (EPA or the Agency) the authority
to certify WIPP's compliance with standards developed by EPA for disposal of
radioactive waste. The Act supplements EPA's authority, under the Atomic Energy
Act and Reorganization Plan No. 3 of 1970, to establish environmental standards
that protect the public and the environment from radioactive materials. Previously,
EPA had no authority to ensure compliance with its radioactive waste standards.
The Act gave EPA that authority and prescribed the regulatory framework for
implementing its responsibilities for the WIPP disposal system.
EPA's responsibilities under the Act include:
1) issuing final radioactive waste disposal standards that apply to all spent
nuclear fuel, high-level radioactive waste, and transuranic waste
disposal facilities not characterized under Section 113(a) of the Nuclear
Waste Policy Act (notably the proposed repository at Yucca Mountain);
2) issuing criteria for the certification of WIPP's compliance with the final
disposal regulations;
3) certifying WIPP's compliance with the Agency's radioactive waste
disposal regulations initially and, if certified, every five years thereafter;
and
4) verifying WIPP's compliance with all other applicable Federal
environmental laws and regulations.
EPA was originally required by the Act to review the Department of Energy's
(DOE) test phase and retrieval plans for tests using radioactive waste at the WIPP
and, through informal rulemaking, approve or disapprove these plans. On October
21, 1993, DOE announced that radioactive waste tests would not be conducted at
the WIPP. Instead, the tests would be replaced with an expanded laboratory
program using radioactive and hazardous wastes. EPA also was originally required
to evaluate the WIPP's compliance with the no-migration requirements of the
Resource Conservation and Recovery Act (RCRA). The 1996 WIPP LWA
Amendments subsequently removed all requirements pertaining to the test phase
and RCRA no-migration determination.
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In Fiscal Year (FY) 1998, the EPA WIPP program:
• Issued proposed certification decision in the Federal Register on October 30,
1997.
• Held public hearings in New Mexico in January 1998 on EPA's proposed
certification decision; opportunity to testify was announced in the Federal
Register on Decembers, 1997.
• Issued a notice of availability and opportunity to comment in the Federal
Register on January 27, 1998, on EPA's analysis of the possible impacts of air
drilling on the WIPP
• Notified Secretary of Energy Pena on May 13, 1998, of EPA's determination
that the WIPP complies with EPA's disposal regulations and is safe to contain
transuranic waste.
• Notified Congress, New Mexico officials, other federal agencies, and
environmental and citizen groups, on May 13-15, 1998, of EPA's
determination that the WIPP complies with EPA's disposal regulations and is
safe to contain transuranic waste.
• Issued a final rule in the Federal Register on May 18, 1998, certifying that the
WIPP will comply with 40 CFR Part 191 and 40 CFR Part 194, provided that
certain conditions are fulfilled.
• Responded to approximately 500 comments received on the proposed
certification decision. Issued in May 1998, an 800-page Response to
Comments Document on EPA's certification decision.
• Issued approximately 700 pages of compliance application review documents
to support EPA's final certification decision on May 13, 1998.
• Issued a notice of availability and opening of public comment period in the
Federal Register on May 21, 1998, on quality assurance and waste
characterization program documents used by DOE to certify Rocky Flats
Environmental Technology Site to ship transuranic waste to the WIPP.
• Issued a notice of availability and opening of public comment period in the
Federal Register on June 24, 1998, on quality assurance and waste
characterization program documents applicable to transuranic waste from
Idaho National Engineering and Environmental Laboratory proposed for
disposal at the WIPP
• On September 30, 1998, provided guidance to DOE on reporting to EPA
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changes in activities or conditions pertaining to the disposal system that differ
from the most recent compliance application.
• On February 26, 1999, issued a letter to DOE approving the Idaho National
Engineering and Environmental Laboratory to ship waste to WIPP
• Maintained four public dockets in New Mexico and Washington, DC, and
managed a toll-free information line and an Internet home page on EPA's
WIPP program.
In FY 98, EPA funded 28.3 staff positions at EPA Headquarters, Region 6
office in Dallas, TX, and Office of Radiation and Indoor Air (ORIA)/Las Vegas Lab in
Las Vegas, Nevada, as well as $2.5 million in contract support for WIPP.
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II. INTRODUCTION
With this report the U.S. Environmental Protection Agency (EPA or the
Agency) complies with the requirement in Section 23(a)(2) of the Waste Isolation
Pilot Plant Land Withdrawal Act, Pub. L. No. 102-579 (the 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."
The Act, as amended in 1996, gives EPA the authority to oversee many of the
Department of Energy's (DOE) activities at the Waste Isolation Pilot Plant (WIPP)
throughout the facility's operational and decommissioning phases. The WIPP, which
is under development by DOE, is a long-term geologic disposal facility for
transuranic radioactive wastes located in southeastern New Mexico. Transuranic
wastes are long-lived radioactive wastes generated as by-products from nuclear
weapons production and decommissioning.
The Act requires EPA to take the following regulatory actions:
• Issue Radioactive Waste Disposal Standards
Develop environmental protection standards for the disposal of spent nuclear
fuel, high-level waste and transuranic radioactive wastes, which will apply to
all potential disposal sites except those characterized under the Nuclear
Waste Policy Act, as amended (40 CFR Part 191).
• Develop Compliance Criteria
Establish criteria to determine whether the WIPP will comply with the
Agency's radioactive waste disposal regulations (40 CFR Part 194).
• Conduct a Compliance Certification
Certify by informal rulemaking whether or not the WIPP complies with the
Agency's radioactive waste disposal regulations [63 FR 27354].
• Recertify Periodically
Determine every five years whether or not the WIPP facility continues to be in
compliance with the Agency's radioactive waste disposal regulations.
In addition to these regulatory actions, EPA must determine whether
documentation submitted by DOE pursuant to Section 9(a)(2) of the Act
demonstrates continued compliance with environmental laws, regulations, and
permit requirements as described in Section 9(a)(1) of the Act.
This report contains five main sections:
(1) Implementation Principles -- the foundation of all EPA WIPP activities;
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(2) 1996 WIPP Land Withdrawal Act (LWA) Amendments;
(3) EPA's Responsibilities Under the LWA: Management and Resources;
(4) EPA's Responsibilities Under the LWA: Regulatory Activities; and
(5) Communications and Consultation Activities.
A schedule of important regulatory dates through Fiscal Year 1998 and
beyond is provided at the end of the report.
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III. IMPLEMENTATION PRINCIPLES
The Act provides EPA with extensive responsibility for establishing whether
the WIPP complies with all applicable Federal environmental laws and regulations.
The following general principles guide EPA's activities:
Protection
• EPA strives to develop a regulatory program designed to protect present and
future generations from the potential risks posed by disposal of waste at the
WIPP
Good Science
• EPA bases 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 of State and local governments, citizen and
environmental groups, individual members of the public, industry, and other
Federal agencies. The Agency conducts an open public process that includes
extensive interaction with stakeholders.
Commitment
• EPA is committed to implement the WIPP legislation effectively and consistently
within its legal authority.
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IV. 1996 WIPP LAND WITHDRAWAL ACT AMENDMENTS
Amendments to the Act were signed into law by President Clinton on
September 23, 1996. Changes that directly affected the EPA activities described in
this report are listed below. The Amendments:
1. Removed all requirements pertaining to the test phase that DOE originally
planned to conduct, then subsequently determined was unnecessary. EPA is no
longer required to undertake any activity related to a test phase.
2. Required DOE to submit all chapters of the compliance application to EPA by
October 31, 1996.
3. Removed the requirement that DOE remove all TRU waste from the WIPP and
decommission the facility if EPA does not certify compliance within 10 years of
the first receipt of waste. The Amendments also repealed a provision allowing a
one-time, two-year extension of the 10-year deadline if EPA decides additional
time is necessary to complete the certification rulemaking.
4. Exempted transuranic mixed waste designated for disposal at the WIPP from
specific treatment standards and land disposal prohibitions of the Solid Waste
Disposal Act (42 U.S.C. 6924(m)), including the "no-migration determination."
5. Removed language calling for the removal of waste from the disposal system
during the disposal and decommissioning phases in the event that EPA finds
DOE not to comply with an environmental law, regulation, or permit requirement,
and DOE fails to prepare an adequate remedial plan.
6. Added that DOE shall use engineered and natural barriers and "any other
measures (including waste form modifications) to the extent necessary at WIPP
to comply with the final disposal regulations."
7. Declared the "sense of Congress" to be that DOE should complete all required
actions to commence disposal of transuranic radioactive waste at the WIPP not
later than November 30, 1997, provided that WIPP has complied with all
applicable laws and health and safety standards.
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V. EPA's RESPONSIBILITIES UNDER THE LWA: Management and Resources
Management
To ensure that EPA's oversight responsibilities are performed in a timely and
scientifically credible manner, the Agency established an intra-agency committee of
senior management to expedite the resolution of policy issues.
The Office of Radiation and Indoor Air (ORIA), which is in the Office of Air and
Radiation (OAR), is charged with the primary responsibility for implementing the Act.
Other EPA offices with significant roles are the Office of Solid Waste (OSW), the
Office of General Counsel (OGC), and EPA Region 6. OSW and Region 6, together
with the State of New Mexico, regulate the WIPP's compliance with the Resource
Conservation and Recovery Act (RCRA). Region 6 also oversees DOE's
demonstration of compliance with all other applicable Federal environmental laws.
Within ORIA, the Center for WIPP in the Radiation Protection Division (RPD)
executes most of EPA's responsibilities under the Act. RPD's Outreach Team leads
ORIA's WIPP public outreach efforts. Staff-level implementation of the Act is
coordinated through an intra-agency work group established by RPD.
Resources
The Act authorizes DOE to transfer funds appropriated for environmental
restoration and waste management to the EPA effort through the year 2001. In
FY 93, an Interagency Agreement between DOE and EPA funded 33 positions and
$6.5 million for EPA WIPP activities.
In FY 94, DOE funded 25 positions at EPA headquarters and four positions in
Region 6, and $4 million in contract support for WIPP. EPA funded an additional
three positions at Headquarters. This level of funding is produced by an interagency
agreement between EPA and DOE covering both the WIPP and development of
radioactive waste cleanup standards.
In FY 95, EPA funded 25 positions at headquarters and four positions in
Region 6, and $3.4 million in contract support for WIPP DOE did not fund any EPA
WIPP activities after 1994, since monies were appropriated directly to EPA.
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In FY 96, EPA funded 21 staff positions at Headquarters, EPA's Region 6
office in Dallas, TX, and ORIA's Laboratory in Las Vegas, NV, as well as $2.8 million
in contract support.
In FY 97, EPA funded 23.7 staff positions at Headquarters, EPA's Region 6
office in Dallas, TX, and ORIA's Laboratory in Las Vegas, NV, as well as $3.0 million
in contract support.
In FY 98, EPA funded 28.3 staff positions at Headquarters, EPA's Region 6
office in Dallas, TX, and ORIA's Laboratory in Las Vegas, NV, as well as $2.5 million
in contract support.
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VI. ERA'S RESPONSIBILITIES UNDER THE LWA: Regulatory Activities
A. 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 requires that EPA promulgate final standards for the disposal of spent
nuclear fuel, high-level and transuranic radioactive wastes. The final standards
were published in the Federal Register on December 20, 1993. Background
information on the standards and a summary of their development and content are
presented below.
1. Background
On September 19, 1985, EPA issued final radiation protection standards
for radioactive wastes: 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). They appear in Volume 50 of the Federal Register, beginning
on page 38066.
The standards for disposal consist of several types of requirements. According
to the Containment Requirements (Section 191.13), waste disposal systems must
be designed with the reasonable expectation that the total release of
radionuclides—from a disposal facility to the accessible environment—does not
exceed specified levels for 10,000 years. The Assurance Requirements (Section
191.14) help to provide additional confidence in reducing the likelihood of radiation
releases from or intrusion into the disposal repository. The Individual Protection
Requirements (Section 191.15) limit radiation doses to individual members of the
public. The Ground Water Protection Requirements (Section 191.16) protect
potable sources of ground water by limiting radiation levels in underground sources.
Compliance with these requirements is to be determined by means of long-term
modeling projections of disposal system performance.
Shortly after the standards were issued, several states and environmental
groups mounted legal challenges to them. On July 17, 1987, the Court of Appeals
for the First Circuit remanded the standards to the Agency for reconsideration.
The WIPP Land Withdrawal Act reinstated all of the sections of the 40 CFR Part 191
disposal standards returned by the court except those that the court found prob-
lematic, i.e., aspects of the Individual and Ground Water Protection Requirements,
which EPA then revised.
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2. The Revised Standards
EPA published proposed amendments to the Individual and the Ground
Water Protection Requirements in the Federal Register on February 10, 1993. The
Agency held hearings in New Mexico that same month to receive comments on the
proposal. Following consideration of all written and oral comments received, EPA
developed the final disposal standards, which the Administrator signed on
December 3, 1993, as an amendment to 40 CFR Part 191. The standards were
published in the Federal Register on December 20, 1993.
The time frame for assessment of the Individual and the Ground Water
Protection Requirements was changed from 1,000 to 10,000 years. The amended
Individual Protection Requirements require radioactive waste disposal systems to be
designed to provide a reasonable expectation that the annual radiation exposure to
any individual in the accessible environment does not exceed 15 millirem committed
effective dose. The amended Ground Water Protection Requirements state that
release of radioactive materials from disposal systems must not cause the levels of
radioactivity in underground sources of drinking water in the accessible environment
to exceed the maximum radionuclide contaminant levels specified in regulations
promulgated under the authority of the Safe Drinking Water Act.
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B. 40 CFR Part 194: Criteria for the Certification of Compliance with 40 CFR
Part 191 Disposal Regulations
The Act requires EPA to certify that the WIPP complies with the Agency's final
radioactive waste disposal regulations (Subparts B and C of 40 CFR Part 191)
before DOE may begin to dispose of transuranic waste in the WIPP. Under the Act,
EPA is required to issue criteria upon which the Agency will base its determination of
the WIPP's compliance with the disposal regulations.
The final rule promulgating WIPP compliance criteria (40 CFR Part 194) was
signed by the Administrator on February 1, 1996, and was published in the Federal
Register[61 FR 5224] on February 9, 1996. The final compliance criteria contain
provisions regarding: 1) the procedures to be used to certify compliance with the 40
CFR Part 191 disposal regulations; 2) the methods to be employed to ensure the
adequacy and quality of data and technical analyses; 3) the assumptions on which
performance assessments and compliance assessments are to be based; and 4)
opportunities for public participation in the certification process.
The Agency promulgated the final rule on compliance criteria after
consideration of public comments on the proposed rule. In addition to the traditional
method of soliciting the public's written comments during a set public comment
period, EPA obtained public comments in several other ways. For example, in
February 1995 the Agency hosted a technical workshop in Washington, DC, to
discuss several key compliance issues. The workshop was open to the public and
involved the participation of experts in several technical disciplines, as well as
stakeholder representatives. EPA also held three public hearings in New Mexico
(Albuquerque, Carlsbad and Santa Fe) in March 1995 to hear testimony on the
proposed rule from the public.
EPA reopened the public comment period on the proposed rule in July 1995,
after DOE submitted a draft certification application to EPA, for the purpose of
affording stakeholders an additional opportunity to voice concerns about the
proposal. During the additional comment period, EPA called a meeting of the WIPP
Review Committee of the National Advisory Council for Environmental Policy and
Technology (NACEPT). This meeting was held in Albuquerque, New Mexico, in
September 1995 and was open to the public.
In preparing the final compliance criteria, the Agency considered the
comments it received during both public comment periods, the technical workshop,
and the NACEPT meeting. The Agency's rationale for substantive changes to the
proposed rule is described in detail in the preamble to the final rule and in the
Response to Comments document. The Agency also issued a Background
Information Document for the final rule (40 CFR Part 194) in January 1996,
providing much of the background information and technical analyses which the
Agency used during the development of the final compliance criteria.
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Although not a requirement, EPA issued "Compliance Application Guidance
(CAG) for the Waste Isolation Pilot Plant: A Companion Guide to 40 CFR Part 194,"
in March 1996. The Agency developed the CAG to assist the DOE with the
preparation of its compliance application by providing format and content
instructions and, in turn, to assist the EPA and the general public in reviewing DOE's
application.
Three separate lawsuits challenging the final compliance criteria rule were
filed against the Agency in the U.S. Court of Appeals for the D.C. Circuit by the
Attorney General of New Mexico, the Attorney General of Texas, and two
environmental groups in New Mexico. The Court of Appeals denied all of the
petitions for review in toto. State of New Mexico v. Environmental Protection
Agency. 114 F.3d 290 (D.C. Circuit, 1997).
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C. Certification of Compliance with 40 CFR Part 191 Disposal Regulations
1. Review Activities
The Act requires EPA to certify whether the WIPP facility complies with the
disposal regulations before DOE may place transuranic waste in the WIPP for
disposal. The Act requires that DOE submit an application to EPA to enable the
Agency to render a certification determination. DOE delivered the Compliance
Certification Application (CCA) to EPA on October 29, 1996. This section describes
EPA's process for reviewing the CCA.
EPA announced receipt of the CCA and the Agency's intent to conduct a
rulemaking in the Federal Register on November 15, 1996, in an Advance Notice of
Proposed Rulemaking. After a preliminary review of the CCA, EPA determined that
the application was not complete. EPA requested additional information to complete
the CCA in December 1996. After receiving application supplements from DOE
between January and May 1997, EPA Administrator Carol M. Browner informed
Secretary of Energy Federico Pena that the CCA was complete on May 16, 1997.
This finding was announced in the Federal Register on May 22, 1997.
During the course of its technical review, EPA also sent DOE a series of
detailed letters identifying areas where the Agency considered DOE's application to
be technically insufficient. DOE in turn responded with a series of letters that sought
to address EPA's concerns. All materials and correspondence exchanged by EPA
and DOE were placed in EPA's public dockets.
EPA utilized the compliance criteria (40 CFR Part 194) to assess the
adequacy of DOE's final application for demonstrating the WIPP's compliance with
the disposal regulations. EPA evaluated DOE's use of models; the potential for
disruptive events that could affect the WIPP's performance over the 10,000-year
regulatory time frame; uncertainty, sensitivity, and consequence analyses; field data
and site characterization; and quality assurance procedures, among other areas.
EPA conducted independent analyses in order to verify the results of DOE's
performance assessment. The results of these analyses led EPA to require DOE to
complete a modified performance assessment, called a Performance Assessment
Verification Test. Additionally, EPA conducted extensive audits and inspections of DOE
records and programs, including waste characterization activities at the WIPP and
several waste generator sites.
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2. Proposed and Final Notice of Certification
EPA received DOE's 84,000-page compliance certification application in
October 1996, and immediately began the rulemaking process with publication of an
advance notice of proposed rulemaking. After an exhaustive scientific review of
DOE's application, consideration of public comments, and performance of
independent testing and site inspections, EPA issued a proposed decision in the
Federal Register on October 30, 1997 [62 FR 58792], that the WIPP complies with
the disposal regulations provided that DOE meets certain conditions.
On May 13, 1998, in compliance with the one-year statutory deadline, EPA
issued its final certification decision, to certify that the WIPP is safe to contain
transuranic waste and will comply with the Agency's radioactive waste disposal
regulations. EPA issued a final rulemaking in the Federal Register on May 18, 1998
[63 FR 27354].
EPA's final certification decision included four conditions of compliance. EPA
found it necessary for DOE to take additional steps to ensure that the measures
actually implemented at the WIPP are consistent with DOE's compliance application
and with the basis for EPA's decision. These conditions are described below.
First, DOE is required to employ the most robust of the panel seal design
options proposed in its compliance application.
Second, at the time of the certification decision, the only waste generator site
approved to ship waste to the WIPP for disposal is Los Alamos National Laboratory.
No other generator site may ship waste until EPA determines that the site has
established and executed the required quality assurance program, as specifically
required by the Compliance Criteria.
Third, Los Alamos was approved to ship waste that can be characterized
using a certain process, which was approved at the time of the certification decision.
No other waste may be shipped to the WIPP until EPA separately approves waste
characterization programs for waste generator sites, determining that a generator
site has (1) provided information on how process knowledge will be used to
characterize the waste in question and (2) implemented a system of controls to
confirm that waste components will fall within certain limiting values upon which EPA
based its certification, as contemplated by the Compliance Criteria.
Fourth, DOE must submit more detailed implementation plans for passive
institutional controls to deter future intruders.
In addition, EPA determined that it is not necessary for DOE to acquire
Federal Oil and Gas Leases Nos. NMNM 02953 and NMNM 02953C, as specified in
Section 4(b)(5)(B) of the Act. EPA determined that development of the existing
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leases would not cause the WIPP to fail to comply with the disposal regulations.
EPA's certification of compliance was conducted pursuant to the informal
rulemaking procedures prescribed by the Administrative Procedure Act (5 U.S.C.
Section 553). EPA opened a 120-day public comment period on its proposed rule in
October 1997 and held public hearings in Albuquerque, Carlsbad, and Santa Fe,
New Mexico. EPA also opened a 30-day comment period in January 1998, in order
for the public to comment on a report on the potential effects of air drilling in the
vicinity of the WIPP. Air drilling was a technical area that attracted considerable
public concern during the second public comment period. Although not required to
do so, EPA believed it would benefit from reviewing additional public comments on
this subject. Based on careful consideration of public comments, EPA issued a final
determination in the Federal Register on May 18, 1998 [63 FR 27354], that the WIPP
will comply with the disposal regulations. Accordingly, the Administrator issued a
final certification to the Secretary of Energy, who then notified Congress of DOE's
intent to open the WIPP EPA must recertify compliance with the disposal
regulations every five years after disposal operations begin and throughout the
facility's operational life, which is expected to be about 35 years.
On July 17, 1998, three petitions for review were filed in the D.C. Circuit Court
challenging EPA's final rule certifying the WIPP's compliance with the radioactive
waste disposal regulations. These petitions were consolidated by the Court (Case
No. 98-1322). The lawsuits challenge the procedures and conclusions of EPA's final
decision. The Court set the briefing schedule with final briefs due March 15, 1999,
and oral arguments scheduled for May 6, 1999.
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3. Continuing Compliance
EPA will continue to monitor WIPP's compliance with EPA's radioactive waste
disposal standards. This will be done in several ways, including, site inspections,
change reports, and recertification.
Site Inspections
EPA will conduct numerous inspections at waste generator sites in order to
implement Conditions 2 and 3 of the compliance certification. EPA's final WIPP
certification included the conditions that DOE waste generator sites may not ship
waste to the WIPP until two things happen: 1) EPA approves the site's quality
assurance program for transuranic waste characterization activities and
assumptions; and 2) EPA approves the transuranic waste characterization
processes used at the site. Notices announcing EPA inspections or audits specific
to the implementation of Conditions 2 and 3, quality assurance and waste
characterization at waste generator facilities, are published in the Federal Register.
EPA will provide an opportunity for the public to submit written comments, for at
least 30 days, on the waste characterization and quality assurance program plans
submitted by DOE. These documents will be placed in EPA's dockets in
Washington, DC and New Mexico. EPA's decisions on whether to approve waste
generator site quality assurance program plans and waste characterization systems
will be conveyed by letter to DOE and will be placed in the public dockets. EPA will
be issuing inspection guidance on its site inspection process in FY 1999.
Los Alamos National Laboratories in New Mexico was the only waste
generator site inspected and approved by EPA to ship waste to the WIPP as of the
WIPP's certification in May 1998. Los Alamos may only ship transuranic waste that
is characterized using the EPA-approved processes. Since issuing its WIPP
certification decision, EPA has performed inspections at the Rocky Flats
Environmental Technology Site (RFETS) in Colorado and the Idaho National
Engineering and Environmental Laboratory (INEEL). EPA issued its approval of
INEEL to ship certain waste to WIPP on February 26, 1999. EPA issued its
approval of Rocky Flats to ship certain waste to WIPP on March 24, 1999.
There are approximately 20 major sites across the country that store
transuranic waste. The DOE Carlsbad Area Office (CAO) determines which sites
are eligible to ship waste to the WIPP and audits them for compliance with DOE
requirements. As CAO certifies each site, EPA will inspect the site to determine that
it also meets EPA's certification requirements. EPA may conduct site inspections to
verify continued compliance.
Change Reports
EPA requires at 40 CFR 194.4(b)(4) that DOE report any planned or
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unplanned changes in activities or conditions on which EPA's Compliance
Certification decision was based. EPA provided DOE with reporting guidance on
September 30, 1998, and placed it in EPA's public dockets. DOE submitted its first
report to EPA on November 13, 1998. EPA is reviewing the changes to assess the
impact, if any, on the disposal system. EPA may conduct site inspections to verify
continued compliance. DOE's reports and EPA's responses will be placed in the
dockets for public review.
Recertification
Five years after the initial receipt of transuranic waste for disposal in the
WIPP, and every five years thereafter until the end of the decommissioning phase,
EPA will evaluate the WIPP's continued compliance with the compliance criteria and
disposal regulations. Documentation submitted by DOE will be made available in
EPA's dockets, and there will be a public comment period of at least 30 days. The
Agency's decision on recertification will be announced in the Federal Register.
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D. Oil and Gas Lease Provisions of the WIPP Land Withdrawal Act
The presence of oil and gas leases below the WIPP site raised concerns
about the potential effect of drilling for these resources on the WIPP's ability to
contain radionuclides.
Section 4(b)(5)(B) of the WIPP Land Withdrawal Act requires EPA to
determine, after consultation with DOE and the Department of the Interior, whether
acquisition of oil and gas leases No. NMNM 02953 and No. NMNM 02953C by the
DOE is required in order for the WIPP to comply with the radioactive waste disposal
regulations (40 CFR Part 191). Under the Act, DOE may not commence disposal of
waste at the WIPP until EPA makes this determination.
EPA staff at the Region 6 office in Dallas, Texas and Headquarters evaluated
the potential effects on the WIPP of oil and gas drilling at the leases in question.
After careful consideration, the Agency determined that it is not possible for drilling
to intercept the WIPP, nor is it expected that related practices such as fluid injection
would cause the WIPP not to comply with the disposal regulations. It is therefore
not necessary for DOE to acquire the leases. EPA proposed this finding together
with its announcement of the proposed certification determination for the WIPP on
October 30, 1997. In the Agency's final certification decision [63 FR 27354], EPA
finalized its finding that DOE does not need to acquire existing oil and gas leases
near the WIPP to comply with the disposal regulations.
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E. Guidance for 40 CFR Part 191, Subpart A
On September 5, 1996, EPA published a notice in the Federal Register
announcing the availability of draft "Guidance for Implementation of EPA's Radiation
Protection Standards for Management and Storage of Transuranic Waste at the
Waste Isolation Pilot Plant." [61 FR 46804] Public comments were accepted
on the guidance for a 30-day period. The draft guidance, referred to as the "WIPP
Subpart A Guidance," addresses requirements established in the WIPP Land
Withdrawal Act and the Federal regulations at 40 CFR Part 191, Subpart A.
Subpart A is a generally applicable standard that limits radiation doses to the public
from management of radioactive waste at disposal facilities operated by the
Department of Energy.
The WIPP Subpart A Guidance is a non-binding document that interprets
Subpart A for the WIPP and provides the Agency's recommendations for methods
used to demonstrate and document compliance with the standard. The guidance
applies to activities that occur during the approximately 35-year operational period,
when waste would arrive at the above-ground portion of the WIPP, be unloaded and
prepared for emplacement in the underground repository, and lowered down a
mechanical hoist and emplaced in the mined-out repository. After considering public
comments received on the proposed guidance, EPA issued final guidance in
January 1997, the availability of which was announced in the Federal Register on
February 28, 1997 [62 FR 9188].
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F. Compliance with the Resource Conservation and Recovery Act
About 60 percent of the wastes proposed for disposal at the WIPP are called
"mixed" waste, containing both hazardous waste subject to the Resource
Conservation and Recovery Act (RCRA) and radioactive wastes subject to the
Atomic Energy Act. Thus, to the extent DOE places mixed waste in WIPP, WIPP
must comply with the regulations developed under RCRA. This section describes
EPA's implementation of RCRA requirements with regards to mixed waste.
EPA authorized the State of New Mexico to carry out the State's RCRA
program and the State's mixed waste program in lieu of the respective Federal
programs. EPA retains authority for those portions of the permit for which New
Mexico is not authorized. EPA's Region 6 office provides oversight and technical
assistance to the State in processing this permit. The State and EPA will share
responsibility for enforcing the conditions of the permit.
A major change in the way RCRA is applied to the WIPP took place in 1996.
EPA's Office of Solid Waste (OSW) had been responsible for a "no-migration"
determination for the WIPP. However, the WIPP Land Withdrawal Act
Amendments, signed by the President in September 1996, exempted the WIPP from
the requirements of the RCRA land disposal restrictions because it was determined
that the radioactive waste disposal regulations would ensure protection of the public
and environment from both the radioactive and hazardous constituents in the waste
proposed for disposal in the WIPP. For this reason, OSW terminated its review of
DOE's no-migration petition. OSW continues to provide technical assistance to the
State of New Mexico and EPA's Office of Radiation and Indoor Air.
The State of New Mexico received a RCRA permit application from DOE in
May 1995. The New Mexico Environment Department (NMED) issued a draft RCRA
permit for the WIPP on May 15, 1998. The NMED received over 3300 pages of
comments from 30 interested parties on the draft RCRA permit during its public
comment period which ended on August 14, 1998. A revised draft permit which
incorporated comments was issued on November 13, 1998. The comment period
on the revised draft permit is ongoing. The hearings on the permit began February
22, 1999. A final permit decision is expected by January, 2000.
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G. Compliance With Other Federal Environmental Laws
The Act requires DOE to submit documentation to EPA - and, where
applicable, the State of New Mexico - every two years to demonstrate WIPP's
compliance with all applicable Federal environmental laws, regulations, and permit
requirements, including: the radioactive waste management and storage regulations
(40 CFR Part 191, Subpart A); 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
disposal and decommissioning phases of the WIPP. The Agency, and, where
applicable, the State of New Mexico, must make a determination of compliance with
these statutes, regulations, and permit requirements within six months of receiving
DOE's submission. If EPA determines that the WIPP does not comply with any
applicable Federal law, regulation or permit requirement, the Agency will require
DOE to develop a remedial plan within six months of this determination.
DOE submitted its first Biennial Environmental Compliance Report to EPA in
October 1994. EPA determined that this report did not give EPA sufficient
information to verify DOE's compliance with all applicable environmental laws,
regulations, and permit requirements. In February 1995, EPA provided written
guidance to DOE outlining the information that should be included in the biennial
report. Additional guidance was sent to DOE in June 1996. DOE subsequently sent
a biennial report for the 1994-1996 period to EPA on October 30, 1996.
DOE provided all of the requested information, with the exception of
documentation attesting to compliance with DOE orders, notices, and directives
pertaining to public health and safety and the environment for the period 1992-1994.
After reviewing the information provided, the Agency found DOE to be in
compliance with applicable laws for the 1992-1994 and 1994-1996 periods.
However, for the 1992-1994 period EPA was unable to determine DOE's compliance
with respect to Section 9(a)(1)(G) and, in pertinent part, (H) of the Act. EPA's
determinations for both periods were announced in the Federal Register on August
20, 1997.
DOE submitted its 1998 Biennial Environmental Compliance Report to EPA
on October 30, 1998. The purpose of this Report is to provide documentation to
EPA that demonstrates that the WIPP facility was/is in continued compliance with all
applicable Federal environmental laws and regulations between 1996 and 1998.
EPA will review the Report and publish its compliance determination in the Federal
Register by May 1, 1999.
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VII. COMMUNICATION AND CONSULTATION ACTIVITIES
EPA believes that a successful communication and consultation program
informs and enhances the regulatory and oversight process and promotes sound
public policy decisions. EPA continues to inform interested parties about its WIPP
oversight functions and encourages public participation in the regulatory process.
EPA's toll-free WIPP Information Line (800-^^^^Q receives about 100
calls each month. The Information Line provides up-to-date, recorded information
about public hearings and meetings, publications, and other WIPP activities. Callers
may listen to recorded messages in English or Spanish, add their name to the WIPP
mailing list, request a WIPP publication, or leave a question for EPA staff.
In an ongoing effort to keep the public well-informed, EPA regularly places all
pertinent information about the WIPP in the official docket at EPA Headquarters in
Washington, DC, and informational rulemaking dockets located in Carlsbad,
Albuquerque, and Santa Fe, New Mexico. The Agency additionally maintains a
WIPP home page on the Internet to give the public direct access to important EPA
documents.
After proposing its compliance certification decision in October 1997, EPA
met with major stakeholder organizations in New Mexico in December 1997 and
January 1998. EPA opened a public comment period on its proposed certification
decision on October 30, 1997. Another round of public hearings was held in
Carlsbad, Albuquerque, and Santa Fe, New Mexico in January 1998 to receive
comments on the proposed certification decision. Over 250 people testified at the
hearings. The public comment period closed in February 1998. EPA also opened a
30-day comment period on January 27, 1998, in order for the public to comment on
a report on the potential effects of air drilling in the vicinity of the WIPP. EPA
announced its final certification decision that the WIPP will comply with its
radioactive waste disposal regulations on May 13, 1998.
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VIM. APPENDIX: WIPP LWA IMPLEMENTATION HIGHLIGHTS
Date Activity
2/93 Radioactive Waste Disposal Standards proposed in the Federal
Register.
2/93 Hearings on Radioactive Waste Disposal Regulations held in New
Mexico.
2/93 Advance Notice of Proposed Rulemaking (ANPR) for Compliance
Criteria published in the Federal Register.
3/93 Draft Test Phase and Retrieval Plans received from DOE.
3/93 Compliance Criteria ANPR comment period closed.
4/93 Radioactive Waste Disposal Standards comment period closed.
5/93 WIPP Review Committee of the National Advisory Council for
Environmental Policy and Technology (NACEPT) Meeting on test
phase and retrieval plans held in New Mexico.
9/93 NACEPT WIPP Review Committee meeting on Compliance Criteria
held in New Mexico.
11/93 Comments submitted to DOE on December 1992 Preliminary
Performance Assessment for the WIPP.
12/93 Final Radioactive Waste Disposal Standards promulgated.
1/95 Proposed Compliance Criteria published in the Federal Register
[60 FR 5766].
1/95 First public comment period on Proposed Compliance Criteria opened.
3/95 Public hearings held in New Mexico on Proposed Compliance Criteria.
5/95 First comment period on Proposed Compliance Criteria closed.
5/95 EPA received Draft No-Migration Variance Petition from DOE.
7/95 Second comment period on Proposed Compliance Criteria opened.
9/95 NACEPT WIPP Review Committee meeting on Compliance Criteria
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issues held in New Mexico.
9/95 Second comment period on Proposed Compliance Criteria closed.
10/95 Notice of Availability of Draft Compliance Application Guidance
Document announced in the Federal Register.
2/96 Final Compliance Criteria published in the Federal Register.
3/96 Final Compliance Application Guidance released.
3/96-9/96 Review of Draft Chapters of DOE Compliance Certification Application.
9/96 Availability of draft EPA Guidance for the implementation of 40 CFR
191, Subpart A, at the WIPP announced in the Federal Register.
10/96 DOE Compliance Certification Application received by EPA; EPA
commences review of application for completeness and technical
adequacy.
11/96 ANPR for the compliance certification announced in the Federal
Register.
1/97 EPA staff meet with New Mexico stakeholders to discuss issues related
to Compliance Certification Application.
2/97 Public hearings held in New Mexico on the ANPR for the compliance
certification.
2/97 Availability of final EPA Guidance for the implementation of 40 CFR
191, Subpart A, at the WIPP announced in the Federal Register.
5/97 EPA announces in the Federal Register thai the Compliance
Certification Application is complete.
8/97 EPA announces in the Federal Register that the WIPP is in compliance
with applicable Federal environmental laws and regulations (other than
the disposal regulations) for the periods 1992-94 and 1994-96.
10/97 Notice of Proposed Rulemaking for the certification determination
published in the Federal Register. EPA proposes to find the WIPP in
compliance, with four conditions. Public comment period opened.
12/97 and EPA staff meet with New Mexico stakeholders to discuss issues related
1/98 to the Agency's proposed certification determination.
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1/98 Public hearings held in New Mexico on the NPR for the compliance
certification.
1/98 Issued in Federal Register air drilling report for public comment.
2/98 Public comment period on the proposed certification determination
closed.
5/98 Final certification decision for the WIPP published in the Federal
Register.
5/98 Issued in Federal Register notice of availability and opportunity to
comment on quality assurance and waste characterization documents
used by DOE to certify the Rocky Flats Environmental Technology Site
to ship waste to WIPP.
6/98 Issued in Federal Register notice of availability and opportunity to
comment on quality assurance and waste characterization documents
used by DOE to certify the Idaho National Engineering and
Environmental Laboratory to ship waste to WIPP.
9/98 Provided DOE guidance on reporting to EPA changes in activities or
conditions pertaining to the disposal system that differ from the most
recent compliance application.
2/99 Issued a letter to DOE approving the Idaho National Engineering and
Environmental Laboratory to ship waste to WIPP.
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