United States         Office of Air         EPA-402-R-96-010
          Environmental Protection     and Radiation        August 1996
          Agency
&EPA    Implementation of the
          Waste Isolation Pilot Plant
          Land Withdrawal Act
          FY 1995 Report to Congress
       Recycled/Recyclable • Printed with Vegetable Based Inks on Recycled Paper (20% Postconsumer)

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                      TABLE OF CONTENTS

                                                              Page

EXECUTIVE SUMMARY                                             1

INTRODUCTION                                                   3

     Organization of Report                                        4

IMPLEMENTATION PRINCIPLES                                      5

MANAGEMENT OF THE IMPLEMENTATION OF THE ACT

     EPA Management                                            6

     Resources Required                                          6

COMMUNICATIONS/CONSULTATION

     Communications Activities                                     8

     Consultation Activities                                        9

ERA'S WIPP REGULATORY RESPONSIBILITIES

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

          Background                                           10
          The Revised Standards                                  11

     Criteria for the Certification of Compliance
     with 40 CFR Part 191 Disposal Standards                        12

     Certification of Compliance with 40 CFR Part 191
     Disposal Standards                                          13

     Current Review Activities                                     15

     Test Phase and Retrieval Plans:  Follow-up                       17

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Compliance with the Resource Conservation and Recovery Act

      Background                                            18
      Implementation                                         18

Compliance with Other Federal Environmental Laws                20

Oil and Gas Lease Provisions of the
WIPP Land Withdrawal Act                                     21

Implementation Schedule Highlights Through Fiscal Year 1995       22

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EXECUTIVE SUMMARY

      The Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act (the Act),
Pub. L. No. 102-579, was signed by the President on October 30,1992.  The Act gives
the U.S. Environmental Protection Agency (EPA or the Agency) the authority to certify
WIPP's compliance with EPA-developed standards for disposal of radioactive waste.
This Act supplements EPA's authority under the Atomic Energy Act and Reorganization
Plan No. 3 of 1970 to establish environmental standards which protect the public and
the environment from radioactive materials.  Previously, EPA had no authority to assure
compliance with its radioactive waste standards, and the Act gave EPA that authority
and prescribed the regulatory framework for implementing its responsibilities for the
WIPP site.

      EPA's responsibilities under the Act include:  1) reviewing and approving or
disapproving of the Department of Energy's (DOE) Test Phase and Retrieval Plans,
2) issuing final radioactive waste disposal standards which will 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), 3) issuing criteria for the certification  of
compliance with the final disposal regulations, 4) certifying WIPP's compliance  with the
Agency's radioactive waste disposal standards initially, and, if certified, every five years
thereafter, and 5) ensuring WIPP's compliance with  all other applicable Federal
environmental laws and regulations.  An EPA review of DOE's test and retrieval plan is
presently unnecessary due to DOE's October 1993 decision not to conduct tests using
radioactive wastes at the WIPP.

      In Fiscal Year 1995 the EPA WIPP program:

      o     Proposed criteria for certifying compliance of the WIPP with the
            radioactive waste disposal standards.  The proposed criteria were
            published in the Federal Register on January 30,1995, for public
            comment;

      o     Held two separate public comment periods for the proposed rule;

      o     Sponsored an open technical workshop to discuss several key
            compliance issues;

      o     Held three public hearings in New Mexico to receive testimony and
            comments on the proposed rule from the public;

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      o     Sponsored an open meeting in New Mexico of the National Advisory
            Council for Environmental Policy and Technology's (NACEPT) WIPP
            Review Committee to seek advice on key compliance issues in the
            proposed rule;

      o     Held four technical exchange meetings with DOE. The meetings, which
            were open to the public, discussed technical issues of relevance (i.e.,
            quality assurance programs and engineered barrier study; experimental
            program; scenario development and screening methodology used by DOE
            in its WIPP performance assessment; and geology and hydrology of the
            WIPP); and,

      o     Promoted public outreach activities: published (in English and Spanish)
            booklets, fact sheets, and bulletins on the Agency's WIPP activities;
            maintained public dockets in NM and DC; organized media telecon-
            ferences; and managed a toll free information line and the WIPP TTN
            Electronic Bulletin Board.

      In FY95, EPA funded 20 staff positions at EPA Headquarters, 1 position at
EPA's Region 6 office in Dallas, TX, and 2 positions at EPA's Office of Radiation and
Indoor Air (ORIA)/Las Vegas Lab in Las Vegas, Nevada, as well as $1.1  million in
contract support for WIPP.

      In Fiscal Year 1996, the EPA WIPP program: 1) finalized criteria, through
rulemaking, to certify compliance with EPA's radioactive waste disposal standards; and
2) finalized the Compliance Application Guidance for the certification criteria.

      Also in FY96, EPA will continue to focus on:  1) ensuring compliance with the
Resource Conservation and Recovery Act (RCRA), 2) interacting with DOE to clarify
the final compliance criteria, 3) providing extensive comments to DOE on the Draft
Compliance Certification Application, and 4) preparing to review DOE's Compliance
Certification Application.

      EPA continues to review and comment on  DOE WIPP documents and prepare
for evaluation of DOE's quality assurance program implementation and qualification of
data and software developed prior to this implementation.

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 INTRODUCTION

       This report fulfills the requirements stated in Section 23(a)(2) of the Act, whereby
 EPA must submit an annual report to the Congress "on the status of, and resources
 required for the fulfillment of the Administrator's responsibilities under this Act." This
 report summarizes the activities and progress EPA has made in FY95 in fulfilling its
 responsibilities under the Act, and outlines the resources required for the Agency to
 meet its commitments.  Because this report focuses on FY95, FY96 activities generally
•are referred to in the future tense.  Therefore, some major milestones that were
 accomplished in FY96 are described in advance of the FY96 report.

       The Act gives EPA the authority to oversee many of DOE's activities at the
 WIPP, beginning with a test phase and continuing throughout the facility's operational
 and decommissioning phases, if those phases, in fact, proceed under the Act.  The
 WIPP, which is under development by DOE,  is a potential Jong-term geologic disposal
 facility for transuranic radioactive wastes in southeastern New Mexico. Transuranic
 wastes are long-lived radioactive wastes generated as by-products from nuclear
 weapons production.

       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.

       •     Promulgate a Test Phase and Retrieval  Plan Rule
             Determine whether DOE's test  phase and retrieval plans meet the
             requirements of the Act. (DOE withdrew its test and retrieval plans so a
             rulemaking will not be required.)

       •     Develop Compliance Criteria
             Establish criteria to determine whether the WIPP will comply with the
             Agency's radioactive waste disposal standards (40 CFR Part 191).

       •     Conduct a Compliance Certification
             Certify by rule whether or not the WIPP  complies with the Agency's
             radioactive waste disposal standards.

       •     Periodic Recertification
             Determine every five years whether or not the WIPP facility continues to
             be in compliance with the Agency's radioactive waste disposal standards.

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      In addition to these regulatory actions, EPA must assure that the facility
complies with all applicable federal environmental laws, regulations, and permit
requirements pertaining to public health and safety.  The Act calls for DOE to submit
documentation of continued compliance with these requirements.  This demonstration
must be submitted biennially by DOE to EPA (beginning in 1994) for EPA to determine
whether DOE is in compliance.
Organization of the Report

      This report contains four separate sections, including:

      (1)   Implementation Principles - the basis for all EPA WIPP activities

      (2)   Management of the implementation of the Act and utilization of resources

      (3)   Communications and Consultation Activities

      (4)   EPA WIPP Regulatory Responsibilities
A schedule of important regulatory dates through Fiscal Year 1995 and into Fiscal Year
1996 is provided at the end of the report.

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Implementation Principles
      The Act provides EPA with extensive responsibility for overseeing the WIPP to
ensure the facility complies with all applicable Federal environmental laws and
regulations.  The following principles guide EPA's activities:
Protection

•     EPA strives 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 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 played by State and local governments,
      citizen and environmental groups, industry, -and other Federal agencies, and the
      Agency commits to conducting an open public process that includes interaction
      with these groups and other interested parties.
Commitment

•     EPA will establish and meet commitments to implement the WIPP legislation
      effectively and consistently within its legal authority.

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MANAGEMENT OF THE IMPLEMENTATION OF THE ACT


EPA 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 intra-agency 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 offices with significant roles include: the Office of Solid Waste (OSW), the Office
of General Counsel (OGC), and EPA Region 6.  OSW and Region 6 are working
together to ensure that WIPP complies with the Resource Conservation and Recovery
Act (RCRA). Region 6 is facilitating efforts to ensure that WIPP complies with all other
Federal environmental laws and regulations. ORIA, OSW, and Region 6 enlist support
from many other offices within EPA,  including the Office of Policy, Planning, and
Evaluation (OPPE), the Office of Enforcement and Compliance Assurance (OECA), and
the Office of Water (OW).

      Within ORIA, the Radiation Protection Division (RPD), Center for WIPP, leads
the WIPP oversight responsibilities,  and executes the bulk of ORIA'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 intra-agency work groups
established by RPD.
Resources Required

      The Act authorizes DOE to transfer funds appropriated for environmental
restoration and waste management to the EPA effort (up to $14 million in fiscal year
1994) through the year 2001.  In FY93, an Interagency Agreement between DOE and
EPA funded 33 positions and $6.5 million for EPA WIPP activities.

      In FY94, DOE funded 25 HQ positions and four positions  in the Region, 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.

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      For the FY95 budget, EPA retained the FY94 level of resources for WIPP.  After
Congressional reductions, ORIA received $3.4 million from the EPA appropriation to
devote to WIPP activities.  DOE has not provided any additional funding to EPA.

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Communications/Consultation
      EPA believes that a successful communication and consultation program
expedites the regulatory/oversight process and ensures sound public policy decisions.
EPA continues to inform interested parties about its WIPP oversight functions and
encourages public participation in the regulatory process.
Communications Activities

      In response to suggestions made by New Mexico citizens, EPA created
a toll-free WIPP Information Line in 1993 that contains up-to-date recorded
information about public hearings and meetings, publications, and other WIPP
activities. During FY94, EPA expanded the capabilities of this line to allow callers to
hear messages in either English or Spanish; add their name to the WIPP mailing list;
request a WIPP publication; or leave a question for EPA staff.  The WIPP Line receives
over 100 calls per month.

      In an ongoing effort to keep the public well  informed, pertinent information is
placed in EPA's WIPP-related rulemaking dockets located in Carlsbad, Albuquerque,
and Santa Fe, NM, and at EPA Headquarters in Washington, DC.

      EPA developed and distributed public information materials to describe the
Agency's regulatory program role. During FY95, EPA produced a fact sheet—in
English and Spanish—describing the final WIPP compliance criteria, which implement
EPA's radioactive waste disposal standards.  EPA WIPP Updates are additional
publications that inform the public about EPA's activities associated with implementing
the Act, as important issues or events arise. Another public outreach tool, the EPA
WIPP Bulletin, keeps the public informed of EPA's WIPP oversight program activities.
First published in the Spring of 1994, it contains program updates, results of NACEPT-
WIPP Committee meetings,  and articles on the  activities of EPA's Office of Radiation
and Indoor Air, Office of Solid Waste, Region 6, and Las Vegas Laboratory. EPA
continues to expand its mailing list of individuals and organizations interested in
receiving information on the Agency's WIPP activities.  Fact sheets, meeting notices,
NACEPT reports, publications, etc., are distributed via the mailing list.

      WIPP documents are also available to .the public through the Technology
Transfer Network (TTN), an electronic bulletin board managed by EPA's Office of Air
Quality  Planning and Standards (OAQPS). The bulletin board contains useful
documents related to EPA's activities under the Act. The network may be accessed .for
the cost of a long-distance call, or via the Internet.
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      EPA will continue to develop and disseminate WIPP program information to the
public. In FY96 the Agency will publish its WIPP Communications Plan, which
describes current and planned outreach efforts, and Public Participation: EPA and the
WIPP. a booklet describing opportunities for public involvement in EPA's development
of WIPP regulations. Both documents will be printed in English and Spanish and
distributed to members of the WIPP mailing list when complete.

      Agency officials participated in national, international, state, and industry-
sponsored conferences and meetings that focus on radioactive waste management and
disposal issues, including meetings sponsored by the League of Women Voters, the
National Academy of Sciences, the American Nuclear Society, the American Society of
Civil Engineers, and the States of New Mexico and Nevada. They also conducted
briefings on an ongoing basis for interested members of Congress.

      Since enactment of the Act, EPA has issued numerous press releases or
advisories concerning its WIPP-related actions to national and New Mexican media
outlets.
Consultation Activities

      In 1993, EPA established a WIPP Review Committee under the National
Advisory Council for Environmental Policy and Technology (NACEPT) to provide
independent advice and counsel to the Agency on complex technical issues related to
EPA's implementation of the Act.

      On September 6-7, 1995, EPA held a public meeting of the NACEPT WIPP
Review Committee to discuss issues concerning EPA's issuance of the final
compliance criteria for the WIPP. Committee members offered advice on three
important compliance issues: passive institutional controls, peer review, and release
limits.  Final Committee reports are available for review at all docket locations. All
meetings of the Committee are held in New Mexico and are open to the public.

      In March 1995, EPA held three public hearings in New Mexico (Albuquerque,
Carlsbad, Santa Fe) to receive comments on the proposed rule on compliance criteria.
Approximately 150 people testified at these hearings.

      EPA and DOE meet periodically to conduct open technical exchange meetings
either in New Mexico or Washington, DC. The public is invited to attend and observe
these meetings. The technical exchange meetings are announced on EPA's toll-free
WIPP Information Line. Summaries of technical exchange meetings and notes
summarizing significant phone conversations between EPA and DOE technical staff are
placed in the dockets.

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ERA'S WIPP REGULATORY RESPONSIBILITIES

40 CFR Part 191:

Environmental Radiation Protection Standards for the Management and Disposal
of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes
      The Act required that EPA promulgate final 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 is presented here.
Background

      On September 19,1985, 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). 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 through 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, a Federal court returned
the standards to the Agency for reconsideration. The WIPP Land Withdrawal  Act
reinstates all of the sections of the 40 CFR Part 191 disposal standards returned  by the
court except those that the court found problematic, i.e., aspects of the Individual and
Ground Water Protection Requirements, which EPA then revised.
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'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 provide 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 by the Safe Drinking
Water Act.
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Criteria for the Certification of Compliance with 40 CFR Part 191 Disposal
Standards

      EPA must certify that WIPP complies with the Agency's final disposal regulations
(Subparts B and C of 40 CFR Part 191) before DOE will be allowed to dispose of
transuranic radioactive waste at 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 standards.

      The proposed rule on compliance criteria was signed by the Administrator on
January 11,1995, and was published in the Federal Register (60 FR 5766) on January
30, 1995.  The proposed rule contained instructions regarding:  1) the procedures to be
used to certify compliance with the 40 CFR Part 191 disposal standards; 2) the
methods to be employed to ensure the adequacy and quality of data and technical
analyses; 3) the assumptions on which compliance assessments are to b'e based;  and
4) opportunities for public participation in the certification process.

      A 90-day public comment period for the proposed rule was opened on
January 30, 1995, and closed on May 1, 1995.  In February 1995, EPA sponsored a
technical workshop in Washington, DC to discuss several key compliance issues.  The
workshop was open to the public and involved the participation of stakeholder
representatives. Additionally, in March 1995, EPA held three public hearings in New
Mexico (Albuquerque, Carlsbad and Santa Fe) to hear testimony and comments on the
proposed rule from the public.

      EPA re-opened the comment period for 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. NACEPT Committee members provided the Agency with
recommendations regarding three important compliance issues in the proposed rule:
passive institutional controls, peer review, and release limits.

      In preparing the final compliance criteria, the Agency considered the comments
it received during the public comment period, 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 of the final rule and the Response to Comments
document.  The final rule was approved for transmittal to the Office of Management and
Budget in December 1995. The final compliance criteria were published in the Federal
Register in February 1996.
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Certification of Compliance with 40 CFR Part 191 Disposal Standards

      EPA must certify that the WIPP facility will comply with the final 40 CFR Part 191
disposal standards before DOE may place radioactive transuranic wastes in the WIPP
for disposal.  EPA must conduct continued recertifications of compliance with the
40 CFR Part 191 disposal regulations every five years after disposal operations begin.
This section discusses the Act's requirements in more detail and describes EPA's
progress in reviewing DOE's performance assessments, which are designed to support
the compliance demonstration.

      In the spring of 1993, DOE provided its 1992 performance assessment report to
EPA, which in turn furnished comments on the first three volumes in January 1994.
Both EPA and its contractor staff contributed to the review of the WIPP performance
assessments.

      EPA will utilize the compliance criteria issued pursuant to the Act to assess the
adequacy or inadequacy of DOE's application for the WIPP's compliance with
40 CFR Part 191 standards.  EPA's evaluation will include, but will not be limited to:
DOE's use of models, the potential for disruptive events that could affect the WIPP's
performance, uncertainty and sensitivity analyses, consequence analyses, field data,
use of expert judgment, and quality assurance procedures.  EPA will also evaluate the
assumptions underlying the DOE performance assessments.

      The Act requires EPA's certification of compliance to be conducted under the
rulemaking process prescribed by 5 U.S.C. Section 553 of the Administrative
Procedures Act. After public hearings and consideration of comments, and in
accordance with the Act's requirements, EPA will make a final determination about
whether or not the WIPP complies with the disposal standards. If the determination is
that the WIPP facility complies, then EPA must conduct recertification of compliance
every five years after disposal operations begin until the end of the decommissioning
phase.

      EPA developed guidance to be used in the implementation of the 40 CFR Part
194 compliance criteria. This guidance will form the basis for the Agency's  review of
DOE's certification and recertification applications for completeness  (i.e., submission of
all required information and supporting documentation). The Compliance Application
Guidance (CAG), will assist DOE with the preparation of the Compliance  Certification
Application (CCA) and, in turn, assist EPA's review of the CCA for completeness and
generally enhance the readability and accessibility of the CCA for EPA and public
scrutiny.  A draft Compliance Application Guidance Document was available for
preliminary review on March 21,1995. The availability of a revised draft was
announced to the public through a Notice of Availability published in the Federal


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Register on October 18,1995. The Agency released the final CAG in March 1996,
shortly after the promulgation of the final compliance criteria.
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Current Review Activities

      EPA is actively involved in the review of technical documents prepared and
submitted by DOE to prepare for the Agency's certification decision on DOE's
compliance application. To this end, staff are familiarizing themselves with DOE's
compliance approach and developing expertise in key areas related to the performance
of the WIPP facility through several activities discussed below.

      To understand DOE's approach to compliance and develop expertise in key
areas related to the performance of the WIPP facility, EPA is devoting resources to
reviewing and commenting on important reports that contain DOE's technical bases for
achieving compliance with both the Resource Conservation and Recovery Act (RCRA)
and the 40 CFR Part 191 Disposal Standards. EPA provided comments to DOE in* an
effort to identify the  areas that the Agency believes are in need of further work or
clarification.  Comments have been submitted on the following documents: 1992
Preliminary Performance Assessment of the WIPP (Volumes 1-5); Compliance Status
Report; Quality Assurance Program Plan;  and the Experimental Program Plan. DOE
will continue  to submit technical documents for the Agency's input.  DOE submitted Part
1 of a draft compliance certification application in March 1995.  Part 2 was submitted in
July  1995. EPA will provide general comments on the drafts by October 31, 1995.
Future  review activities include the planned submission of specific comments on DOE's
draft compliance application in early 1996. All comments on DOE documents are
placed  promptly in the public dockets.

      In order to gather information and interact effectively with DOE, EPA conducts
technical exchange  meetings with DOE to discuss relevant technical issues to the
evaluation of DOE's submissions.  For example, during FY95, discussion topics at
some of the technical exchange meetings included:  1) DOE's quality assurance
programs and engineered barrier study; 2) experimental program; 3) scenario
development and screening methodology used by DOE in its WIPP performance
assessment;  and 4) geology and hydrology of the WIPP.  Information obtained at these
meetings supplement and enhance our knowledge of the WIPP facility.

      EPA staff are presently studying the 1995 Performance Assessment computer
codes,  which will be used to update the EPA Users' Manual. These codes are a critical
component of the application because they are used to project the behavior of the
facility  throughout the 10,000-year regulatory time frame. This process of access and
independent learning is allowing the staff to gain a detailed understanding of DOE's
Performance Assessment computer codes and how to use them. Identifying potential
concerns with the computer models now helps EPA expedite its review.
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      Finally, EPA continues its efforts as.observers during DOE's program audits and
data qualification activities. EPA continues to review and comment on DOE's WIPP
quality assurance documents and prepare for evaluation of its QA programs.
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Test Phase and Retrieval Plans: Follow-up

      According to the Land Withdrawal Act, EPA is required to review DOE's test
phase and retrieval plans for tests using radioactive waste at the WIPP and, through
rulemaking, approve or disapprove these plans. The Act states that no test phase
activities may proceed unless EPA approves at least part of the test phase plan and
approves the entire retrieval plan. 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 agreed that DOE's laboratory tests are a more effective and expeditious
approach to a final certification decision.  EPA considers its obligation to review DOE's
test phase plan and retrieval plan terminated by DOE's announcement that it will not
conduct tests at the WIPP.
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Compliance with the Resource Conservation and Recovery Act

      Substantial portions 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, WIPP must also comply with RCRA regulations. This section describes EPA's
implementation of RCRA requirements.

Background

      A major requirement for WIPP's compliance concerns RCRA's land disposal
restrictions. An amendment to RCRA—the Hazardous and Solid Waste Amendments
of 1984 (HSWA)—imposes a substantial number of 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:  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." (42 USC,
Sec. 6924(d)(1))  EPA's Office of Solid Waste is responsible for the review and'
processing of "no-migration" petitions.

      EPA authorized the State of New Mexico to carry out the State's  base RCRA
program and the  State's mixed waste program in lieu of the respective Federal
programs. Therefore, the State will make determinations regarding those portions of
the RCRA permit for the WIPP.  EPA retains authority for those portions of the permit
for which New Mexico is not  authorized and the authority to make no-migration
determinations. 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.

Implementation

      In February 1989, DOE submitted a petition to EPA for a "no-migration
determination" covering the WIPP test phase. After careful review of DOE's petition
and public comments on a proposed decision, EPA approved the petition on
November 14,  1990. This action was based on a determination that DOE
demonstrated—to a reasonable degree  of certainty—that hazardous constituents will
not migrate from  the WIPP disposal facility for the duration of the test phase. The
petition was approved for ten years.  DOE also submitted a RCRA permit application to
the State of New Mexico for the test phase in 1990. However, due to DOE's October
1993 decision not to conduct waste tests at WIPP—the RCRA permit and the no-


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migration determination for the test phase are no longer necessary.  DOE submitted a
draft No-Migration Variance Petition to EPA in May 1995.  The petition is incomplete, in
that it only covers the operational period of the life of the facility (the first thirty years).
EPA is reviewing this draft petition and plans to provide comments on it to DOE in
November 1995.

      The State of New Mexico received a RCRA permit application from DOE  in May
1995. The New Mexico Environment Department has begun review of the application
and is expected to issue a draft determination in 1996.

      EPA's Office of Solid Waste (OSW) coordinates its activities with the Office of
Radiation and Indoor Air (ORIA), Region 6, and the State of New Mexico. Such efforts
include OSWs attendance at NACEPT meetings, National Academy of Sciences WIPP
Panel meetings, and EPA/DOE technical exchanges.
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Compliance With Other Federal Environmental Laws

      The Act requires DOE to submit documentation to EPA every two years to
demonstrate WIPP's compliance with all applicable Federal  environmental laws,
regulations and permit requirements including: the radioactive waste storage
standards (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 test, disposal, and decommissioning phases of the WIPP. The Agency
must make a determination of compliance with these statutes, regulations and permit
requirements within six months of receiving DOE's submission.

      DOE submitted its first biennial  report to EPA in October 1994. After evaluation,
EPA determined that the documentation did not give EPA sufficient information to verify
DOE's compliance with applicable environmental laws, regulations and permit
requirements. In February of 1995, EPA provided written guidance to DOE outlining
the information that should be included in the biennial report. EPA is currently awaiting
DOE's revised report, after which EPA will make a WIPP compliance determination.

      If EPA determines that the WIPP does not comply with any applicable Federal
law or regulation or permit requirement, the Agency will require DOE to develop a
remedial plan within six months of this determination. If the remedial plan is not
received, or the Agency determines through rulemaking that the remedial plan is
inadequate to bring the WIPP facility into compliance, DOE will be required to retrieve
wastes, and any material contaminated by such waste, to the extent practicable and
implement decommissioning and post-decommissioning plans. DOE must develop and
submit to Congress its decommissioning and post-decommissioning plans by
October 30, 1997.
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Oil and Gas Lease Provisions of the WIPP Land Withdrawal Act

      The presence of oil and gas leases near and below the WIPP site has raised
concerns about the possibility for human intrusion to affect the ability of the repository
to contain the waste.

      EPA must determine, after consultation with DOE and the Department of the
Interior, whether acquisition of existing oil and gas leases No. NMNM 0253 and No.
NMNM 02953C by the DOE is required for the WIPP to comply with the disposal
standards or with the Resource Conservation and Recovery Act. Under the WIPP Land
Withdrawal Act, DOE may not commence emplacement of transuranic waste
underground for disposal at WIPP until either DOE acquires the oil and gas leases or
EPA determines their acquisition is not required.

      EPA's Region 6 office is working with EPA Headquarters to evaluate the
potential effect of oil and gas drilling on the WIPP. This evaluation examines relevant
technical information.

      In January 1995, the lessees for one of the oil and gas leases filed a "taking"
claim against the United States.
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                 WASTE ISOLATION PILOT PLANT
                 LAND WITHDRAWAL ACT OF 1992

       IMPLEMENTATION SCHEDULE HIGHLIGHTS THROUGH
                         FISCAL YEAR 1995

Date                  Regulatory Activities

 2/93      Radioa'ctive Waste Disposal Standards proposed in the Federal Register.

           Hearings on Radioactive Waste Disposal Standards held in New Mexico.

           Advance Notice of Proposed Rulemaking for Compliance Criteria
           published in the Federal Register.

 3/93      Draft Test Phase and Retrieval Plans received from DOE.

           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.

 7/94      Proposed Compliance Criteria submitted to OMB for interagency review.

 1/95      Proposed Compliance Criteria published in the Federal Register
           (60 FR 5766).

           First public comment period on Proposed Compliance Criteria opened.
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 2/95       EPA determined that DOE had not fully demonstrated compliance with all
            Federal environmental laws, regulations, and permit requirements.

 3/95       Hearings held on Proposed Compliance Criteria in New Mexico.

 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
            issues held in New Mexico.

 9/95       Second comment period on Proposed Compliance Criteria closed.


                MAJOR MILESTONES FOR FISCAL YEAR 1996


10/95       Notice of Availability of Draft Compliance Application Guidance Document
            announced in the Federal Register.

2/96        Final Compliance Criteria promulgated in the Federal Register.

3/96        Final Compliance Application Guidance released.

3/96-9/96    Review of Draft Chapters of DOE Compliance Certification Application.
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