United States Air and Radiation KPA 402-R-%-()20
I•nvironmcntal Protection (6602.1) June 1997
Agency
Implementation of the
Waste Isolation Pilot Plant
Land Withdrawal Act
FY 1996 Report to Congress
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TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY 1
INTRODUCTION 4
Organization of Report 5
IMPLEMENTATION PRINCIPLES 6
EPA RESPONSIBILITIES UNDER THE ACT
Management 7
Resources 7
COMMUNICATIONS/CONSULTATION
Communications Activities 9
Consultation Activities 10
ERA'S REGULATORY RESPONSIBILITIES UNDER THE ACT
40 CFR Part 191: Environmental Radiation Protection Standards
for the Management and Disposal of Spent Nuclear Fuel, High-Level
and Transuranic Radioactive Wastes
Background 11
The Revised Standards 12
40 CFR Part 194: Criteria for the Certification of Compliance
with 40 CFR Part 191 Disposal Standards 13
Certification of Compliance with 40 CFR Part 191
Disposal Standards 15
Review Activities 16
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Guidance for Implementation of EPA's Radiation Protection
Standards for Management and Storage of Radioactive
Waste at the WIPP (40 CFR Part 191, Subpart A) 18
Compliance with the Resource Conservation and Recovery Act 19
Compliance with Other Federal Environmental Laws 20
Oil and Gas Lease Provisions of the WIPP LWA 21
1996 WIPP Land Withdrawal Act Amendments 22
WIPP LWA Implementation Highlights Through Fiscal Year 1996 24
Major Milestones for Fiscal Year 1997 25
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EXECUTIVE SUMMARY
The Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act (the Act),
Pub. L. No. 102-579, was signed by the President on October 30, 1992. 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.
This Act supplements EPA's authority, under the Atomic Energy Act and Reorganiza-
tion Plan No. 3 of 1970, to establish environmental standards that protect the public
and the environment from radioactive materials. The Act prescribed the framework for
EPA's regulatory oversight of 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 Agency's final
radioactive waste disposal regulations;
3) certifying WIPP's compliance with the Agency's radioactive waste disposal
standards 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 DOE's test phase and retrieval
plans for tests using radioactive waste at the WIPP and, through 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. The
1996 WIPP LWA Amendments, Pub. L No. 104-201, subsequently removed ad
language pertaining to the test phase.
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In Fiscal Year 1996 the EPA WIPP program:
• Issued final criteria (40 CFR Part 194) for certifying compliance of the WIPP with
the radioactive waste disposal standards (40 CFR Part 191). The final criteria
were published in the Federal Register on February 9, 1996.
• Published Compliance Application Guidance in March 1996 to assist DOE with
the preparation of the Compliance Certification Application (CCA) for the WIPP
and, in turn, to assist in EPA's review of the CCA for completeness and to
enhance the readability and accessibility of the CCA for EPA and public scrutiny.
• Held six Technical Exchange meetings with DOE on the following topics: DOE's
actinide source term program; the WIPP waste information system; scenario
development and screening methodology used by DOE in its WIPP performance
assessment; Culebra hydrogeology; passive institutional controls and
engineered barriers; and Castile brine reservoir estimates and fluid injection
activities. These meetings were open to the public.
• Sent to DOE two sets of technical comments on the Draft Compliance
Certification Application submitted to EPA in March 1995, and sent comments on
a final draft application submitted to EPA in the summer of 1996. These
comments have been placed in the public dockets.
• Published a notice in the Federal Register on September 5, 1996,
announcing the availability of draft guidance for implementation of standards for
management and storage of transuranic waste at the WIPP (Subpart A of
40 CFR 191) for public comment.
• Published (in English and Spanish) EPA's Communications Plan for
the WIPP and a brochure entitled Public Participation: EPA
and the WIPP, maintained public dockets in NM and Washington, DC;
managed a toll-free information line, the WIPP information on the Agency's TTN
Electronic Bulletin Board, and the WIPP Internet home page.
In FY 96, EPA funded 21 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) Radiation & Indoor Environments National Laboratory in Las Vegas,
NV, as well as $2.8 million in contract support for the WIPP program.
EPA received DOE's final Compliance Certification Application on October 29,
1996. In FY 97, the Agency will continue to review the application. EPA asked DOE
for additional information. DOE has provided EPA with sufficient information for the
Agency to determine that the Application is complete. On May 16,1997 the
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Administrator informed DOE, in writing, that the Application is complete. This
completeness determination begins a one-year period during which the Agency will
determine whether or not the WIPP complies with its radioactive waste disposal
standards. The Agency expects to make its decision on the application by Spring
1998. Because of the information and regulatory analyses necessary, this date is
subject to change depending on when DOE submits additional EPA-requested
information.
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INTRODUCTION
This report responds to the requirement in Section 23(a){2) of the Waste
Isolation Pilot Plant Land Withdrawal Act (the Act), whereby EPA must submit an
annual report to 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
DOE's activities at the Waste Isolation Pilot Plant (WIPP) throughout the facility's
operational and decommissioning phases, if those phases in fact proceed. The WIPP,
which is under development by DOE, is a potential long-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.
• 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 rulemaking whether or not the WIPP complies with the Agency's
radioactive waste disposal standards.
• Recertify Periodically
Determine every five years whether or not the WIPP facility continues to be in
compliance with the Agency's radioactive waste disposal standards.
In addition to these regulatory actions, EPA must determine that the WIPP
complies with all applicable federal laws pertaining to public health and safety of the
environment, and regulations and permits under such laws. The Act calls for DOE to
submit documentation of continued compliance with these requirements biennially
(beginning in 1994), and for EPA to determine subsequently whether the WIPP is in
compliance.
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Organization of the Report
This report contains four main sections:
(1) Implementation Principles - the foundation of all EPA WIPP activities;
(2) EPA Responsibilities Under the Act;
(3) Communications and Consultation Activities; and
(4) EPA Regulatory Responsibilities Under the Act,
A schedule of important regulatory dates through Fiscal Year 1996 and into
Fiscal Year 1997 is provided at the end of the report.
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IMPLEMENTATION PRINCIPLES
The Act provides EPA with extensive responsibility for determining whether the
WIPP 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 of state and local governments, citizen and
environmental groups, individual members of the public, industry, and other federal
agencies. 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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EPA RESPONSIBILITIES UNDER THE ACT
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
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In FY 96, EPA funded 21 staff positions at Headquarters, 1 position at EPA's
Region 6 office in Dallas, TX, and 2 of which were at EPA's ORIA Laboratory in Las
Vegas, NV as well as $2.8 million in contract support for WIPP.
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COMMUNICATIONS AND CONSULTATION ACTIVITIES
EPA believes that a successful communications and consultation program
expedites the regulatory/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.
Communications Activities
EPA's toll-free WIPP Information Line continues to receive about 100
calls each month. The Line contains up-to-date, recorded information about public
hearings and meetings, publications, and other EPA WfPP activities. Callers may
listen to the recorded message 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
pertinent information on the WIPP in rulemaking dockets located in Carlsbad,
Albuquerque, and Santa Fe, NM, and at EPA Headquarters in Washington, DC.
EPA develops and distributes public information materials that describe the
Agency's regulatory role relative to WfPP. During FY 96, EPA published EPA's
Communications Plan for the WJPP, which describes current and planned
outreach efforts, and Public Participation: EPA and the WIPP, which
describes opportunities for public involvement in EPA's regulatory process for the
WIPP. Both documents were printed in English and Spanish and were sent to
members of the WIPP mailing list. EPA WIPP Updates inform the public about
EPA's activities associated with implementing the Act, including important issues and
events. Another document, the EPA WIPP Bulletin, informs the public about
EPA's WIPP oversight program activities. The WIPP Bulletin contains program
updates, results of NACEPT WIPP Review 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 update its mailing list of individuals and
organizations interested in receiving information on the Agency's WIPP activities.
WIPP documents are also available to the public through the Agency's
Technology Transfer Network (TTN), an electronic bulletin board. The TTN contains
documents related to EPA's activities under the Act, such as regulatory support
documents and comments on draft certification applications. The network may be
accessed for the cost of a long-distance call, or via the Internet. In addition to the TTN,
EPA WIPP documents can now be accessed directly through our new WIPP Home
Page on the Internet. The WIPP Home Page address is http://www.EPA.gov/radiation/
WIPP/.
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Agency officials participated in national, international, state, and industry-
sponsored conferences and meetings on radioactive waste management and disposal
issues, including meetings sponsored by the National Academy of Sciences, the
American Nuclear Society, the American Society of Civil Engineers, the American
Society of Mechanical Engineers, the International Atomic Energy Agency, the Health
Physics Society, and the States of Arizona, New Mexico, and Nevada. They also
conducted briefings 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 NACEPT to
provide independent counsel to the Agency on complex technical issues related to
EPA's implementation of the Act. No meetings of the WIPP Review Committee were
held in FY 96, although the Committee did convene in 1993 and 1995. Those meetings
were held in New Mexico and were open to the public.
EPA and DOE meet periodically at technical exchanges either in New Mexico or
Washington, DC. The public is invited to attend and observe these meetings.
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 public
dockets.
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ERA'S REGULATORY RESPONSIBILITIES UNDER WIPP
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 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 Requ/rements (Section
191.14) are intended to provide confidence in reducing the likelihood of radiation
releases from 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. The Individual and Ground Water
Protection Requirements are applicable within the accessible environment and are
used in evaluating the undisturbed performance of the repository. 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, a federal court returned
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 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 timeframe for assessment of the Individual and the Ground Water Protection
Requirements was changed from 1,000 to 10,000 years. For the undisturbed
performance of the disposal system, 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. Also for the
undisturbed performance of the disposal system, 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 as those levels were specified in 40 CFR Part 141 on January 19, 1994.
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40 CFR Part 194: Criteria for the Certification of Compliance with the 40 CFR Part
191 Disposal Standards
The Act requt'res EPA to certify that the WIPP complies with the Agency's final
radioactive waste disposal standards (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 compliance criteria rule (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 comment 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 comment 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 held a meeting of the WIPP Review Committee of
the NACEPT, This meeting was held in Albuquerque, NM, in September 1995 and was
also 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 final rule was published in the Federal Register in
February 1996. The Agency's rationale for substantive changes to the proposed rule
is described in detail in the preamble to the final rule and the Response to Comments
document.
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Three separate lawsuits on the final compliance criteria rule were filed against
the Agency in April 1996 by the Attorney Generals of New Mexico and Texas, two
environmental groups, and two citizens in New Mexico. The lawsuits have been
consolidated into a single case currently pending before the United States Court of
Appeals for the District of Columbia Circuit.
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Certification of Compliance with the 40 CFR Part 191 Disposal Standards
Current law requires that EPA must certify that the WIPP facility complies with
the finai 40 CFR Part 191 disposal regulations before DOE may place transuranic
waste in the WIPP for disposal. If WIPP is certified, 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. This
section describes EPA's progress in reviewing DOE's Compliance Certification
Application documents-
To date, EPA has provided DOE with over 450 pages of comments on WIPP
compliance-related documents. In the spring of 1993, DOE provided its 1992
performance assessment report to EPA. In response, EPA furnished comments to DOE
in July and October 1994. In the summer of 1995, DOE provided EPA with a
preliminary draft Compliance Certification Application. The Agency sent general
comments to DOE on the draft application in October 1995, and specific comments in
January 1996. Throughout the spring and summer of 1996, DOE again submitted to
the Agency draft chapters of its Compliance Certification Application. The EPA
responded with six sets of general and detailed comments in August 1996.
EPA will utilize the compliance criteria (40 CFR Part 194) to assess the
adequacy of DOE's final application, submitted in October 1996, for the WIPP's
compliance with the 40 CFR Part 191 disposal regulations. EPA's evaluation will
include, but will not be limited to: .DOE's use of models (conceptual, mathematical,
numerical, and computer); the potential for disruptive events that could affect the
WIPP's performance over the 10,000-year regulatory timeframe; uncertainty and
sensitivity analyses; consequence analyses; field data; and quality assurance
procedures. EPA will also evaluate the assumptions underlying DOE's performance
assessment.
EPA published "Compliance Application Guidance" in March 1996 to be used in
conjunction with the 40 CFR Part 194 compliance criteria. The document will guide the
Agency's review of DOE's certification and recertification applications for completeness
(i.e., submission of all required information and supporting documentation). The
guidance was intended to assist DOE in the preparation of tine Compliance Certification
Application and to assist EPA's in its review of the application for completeness.
The Land Withdrawal 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 Procedure Act. After public hearings and consideration of comments,
EPA will make a final determination regarding whether or not WIPP complies with the
radioactive waste disposal regulations.
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Review Activities
Over the past several years EPA staff conducted extensive reviews of DOE
technical documents in an effort to prepare for the Agency's review of the DOE's
Compliance Certification Application. Staff familiarized themselves with relevant
technical information and developed expertise in key areas related to the performance
of the WIPP facility by means of the activities listed below.
EPA reviewed and commented on important reports containing DOE's technical
bases for achieving compliance with both the Resource Conservation and Recovery
Act (RCRA) and the 40 CFR Part 191 Disposal Standards. Comments were provided
to DOE that identified areas that the Agency believes are in need of further work or
clarification. Comments were 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 submitted
Part 1 of a draft Compliance Certification Application in March 1995. Part 2 was
submitted in July 1995. EPA sent general comments on the draft application to DOE in
October 1995, and sent specific comments in January 1996. Finally, EPA conducted a
preliminary review of a draft final Compliance Certification Application in August 1996
and sent comments to DOE. All comments on DOE documents were promptly placed in
the public dockets.
During FY 96, EPA conducted several "open" technical exchange meetings with
DOE to discuss technical issues relevant to the Agency's evaluation of DOE's
application. Topics of discussion at the technical exchange meetings included: DOE's
actinide source term program; the WIPP waste information system; scenario
development and screening methodology used by DOE in its WIPP performance
assessment; Culebra hydrogeology; passive institutional controls and engineered
barriers; and Castile brine reservoir estimates and fluid injection activities. The
information obtained at these meetings supplements and enhances EPA staffs
knowledge of the WIPP facility.
Additionally, EPA observed various DOE program audits and data qualification
activities, reviewed and commented on DOE's WIPP quality assurance documents, and
prepared to evaluate DOE's QA programs.
EPA staff continue to study Performance Assessment computer codes in order to
update the latest EPA Users' Manual. These codes, a critical component of the
Compliance Certification Application, are used to project the behavior of the facility
throughout the 10,000-year regulatory timeframe. Advance identification of potential
concerns with the computer models expedites EPA's review of the final Compliance
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Certification Application. In addition, EPA also conducts independent analyses to
verify DOE's approach to performance assessment in the Compliance Certification
Application. An example is EPA's analysis of the 1992 WIPP Performance
Assessment's use of data related to the Castile brine reservoir, which underlies the
waste panels. Major areas of technical review involve data and parameters, scenario
screening, conceptual models, computer codes and their implementation of conceptual
models, site characterization, and waste characterization.
DOE delivered the Compliance Certification Application to EPA on October 29,
1996. During FY 97 EPA will engage in an intensive review of the CCA in order to
reach a decision on certification of the WIPP. This review will begin with a
determination that the final CCA contains all documentation and references necessary
for EPA to conduct its technical analyses of the application. EPA has requested
additional information and analysis from DOE, so that EPA can determine that the CCA
is complete and conduct its technical review. EPA expects to make its decision on the
application by Spring of 1998. This date is subject to change depending on when DOE
submits the additional EPA-requested information.
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Guidance for Implementation of EPA's Radiation Protection Standards for
Management and Storage of Radioactive Waste at WIPP (40 CFR Part 191,
Subpart A)
On September 5, 1996, EPA published a notice in the Federal Register
announcing the availability of draft guidance entitled, "Guidance for Implementation of
EPA's Radiation Protection Standards for Management and Storage of Radioactive
Waste at the Waste Isolation Pilot Plant." [See 61 FR 46804.] Public comments were
accepted on the draft guidance for 30 days. 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 and storage 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. If the WIPP is approved
for use as a disposal system, the guidance will apply to activities that occur during the
facilities 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. EPA considered public comments in full when revising the draft
WIPP Subpart A Guidance. Release of the final guidance was announced in the
Federal Register in January 1997.
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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
(AEA). The WIPP, therefore, must comply with regulations developed under RCRA.
This section describes EPA's implementation of RCRA requirements.
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. 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.
The State of New Mexico received a RCRA permit application from DOE in May
1995. The New Mexico Environment Department is reviewing the application and is
expected to issue a draft permit by late summer 1997. This permit would cover the
storage and disposal of the hazardous portion of the transuranic waste expected to be
disposed of at WIPP.
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 RCRA land
disposal restrictions requirements. Because of this legislation, OSW terminated its
review of DOE's no-migration petition. OSW will continue to provide technical
assistance to the State of New Mexico and EPA's Office of Radiation and Indoor Air.
The Agency believes, and Congress agreed, that because the WIPP is subject
to comprehensive regulation under the AEA, the WIPP LWA, and RCRA, demon-
stration of no-migration of hazardous constituents is not necessary to protect human
health and the environment.
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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 management
and 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); and the Safe Drinking Water Act (SDWA).
This documentation must be submitted throughout the 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. Additional guidance was
sent to DOE in June 1996. EPA is awaiting DOE's response to the guidance.
DOE's biennial report for the 1994-1996 period was received by EPA on
October 30,1996. 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.
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Oil and Gas Lease Provisions of the WIPP Land Withdrawal Act
The presence of oil and gas leases and potential oil and gas drilling near and
underneath a portion of the WJPP has raised concerns about the possibility for human
intrusion to affect the ability of the repository to contain the waste.
Section 4(b)(5)(B) of the WIPP Land Withdrawal Act calls for 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 standards. Under the
WIPP Land Withdrawal Act, as amended, 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 that 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. EPA intends to decide whether acquisition of the oil and gas leases is
required in conjunction with its current review of the pending WIPP Compliance
Certification Application.
In 1996, in response to a "takings" lawsuit filed by lessees for one of the oil and gas
leases, the U.S. Court of Federal Claims found the United States Government liable
and awarded the lessees $8,938,736,00 plus interest. On August 20, 1996, the United
States Government filed a Notice of Appeaf.
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1996 WIPP Land Withdrawal Act Amendments, Pub. L. No. 104-201
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 Certification Application to
EPA by October 31, 1996.
3. Removed the requirements related to test phase activities that DOE remove all TRU
waste from the WIPP and decommission the facility if EPA does not certify
compliance within ten years of receipt of the first shipment 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 hazardous waste treatment standards and land disposal prohibitions of the
Resource Conservation and Recovery Act (42 U.S.C. 6924(m)), including the "no-
migration determination."
5. Deleted 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. Revised language on engineered and natural barriers to provide that DOE shall use
both 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 actions
required to begin disposing of transuranic radioactive waste at the WIPP not later
than November 30, 1997, provided that compliance with all applicable laws and
health and safety standards has been demonstrated.
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The Amendments retained EPA's authority to certify whether the WIPP complies
with the Agency's final disposal regulations, and to determine whether acquisition of
specific oil and gas leases by the DOE is required for the WIPP to comply with the
disposal standards.
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WIPP LWA IMPLEMENTATION HIGHLIGHTS THROUGH
FISCAL YEAR 1996
Date Regulatory Activities
2/93 Radioactive 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 published in the Federal
Register.
1/95 Proposed Compliance Criteria published in the Federal Register.
First public comment period on Proposed Compliance Criteria opened.
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.
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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.
10/95 Notice of Availability of Draft Compliance Application Guidance Document
announced in the Federal Register.
11/95 Comments to DOE on Draft Compliance Certification Application
1/96 Second Round of Comments to DOE on Draft Compliance Certification
Application
2/96 Final Compliance Criteria published in the Federal Register.
3/96 Compliance Application Guidance released.
5/96-9/96 Review of Draft Chapters of DOE Compliance Certification Application.
9/96 Notice of Availability of Draft WIPP Subpart A Guidance published in
Federal Register
MAJOR MILESTONES FOR FISCAL YEAR 1997
10/96 DOE Compliance Certification Application received by EPA
11 /96 Advance Notice of Proposed Rulemaking for the Certification rulemaking
published in the Federal Register.
11/96 Public comment period opens on DOE's Compliance Certification
Application for WIPP
1/97 Notice of Availability of Final WIPP Subpart A Guidance published in
Federal Register
1/97 Stakeholder meetings on Compliance Certification Application issues in
New Mexico
2/97 Hearings held on DOE's Compliance Certification Application in New
Mexico
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3/97 Public comment period closes on DOE's Compliance Certification
Application for the WIPP
5/97 Administrator's Completeness Determination announced on DOE's
Compliance Certification Application for the WIPP
5/97 EPA accepts and considers additional comments on Administrator's
Completeness Determination
Proposed Decision on the Certification of the WIPP
Hearings held on Proposed Certification Decision on the WIPP in New
Mexico
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