United States Air and Radiation EPA 402-R-98-001
Environmental Protection (6602J) June 1998
Agency
Implementation of the
Waste Isolation Pilot Plant
Land Withdrawal Act
FY 1997 Report to Congress
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TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY 1
INTRODUCTION 3
Organization of Report 4
IMPLEMENTATION PRINCIPLES 5
1996 WIPP LWA AMENDMENTS 6
EPA's RESPONSIBILITIES UNDER THE LWA: Management and Resources 7
ERA'S RESPONSIBILITIES UNDER THE LWA: Regulatory Activities
40 CFR Part 191: Environmental Radiation Protection Standards
for the Management and Disposal of Spent Nuclear Fuel,
High-Level and Transuranic Radioactive Wastes
Background 9
The Revised Standards 10
40 CFR Part 194: Criteria for the Certification of Compliance
with 40 CFR Part 191 Disposal Regulations 11
Certification of Compliance with 40 CFR Part 191
Disposal Regulations 13
Oil and Gas Lease Provisions of the
WIPP Land Withdrawal Act 15
Guidance for 40 CFR Part 191, Subpart A 16
Compliance with the Resource Conservation and Recovery Act 17
Compliance with Other Federal Environmental Laws 18
COMMUNICATIONS AND CONSULTATION ACTIVITIES 19
APPENDIX: WIPP LWA IMPLEMENTATION HIGHLIGHTS 20
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EXECUTIVE SUMMARY
The Waste Isolation Pilot Plant 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 Waste Isolation Pilot Plant (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 transurantc 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 DOE's 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. 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 1997 and part of Fiscal Year 1998, the EPA WIPP program:
• Completed a technical review of DOE's Compliance Certification Application
(CCA) for the WIPP, which was received on October 29, 1996.
• Announced receipt of the CCA in the Federal Register on November 15, 1996,
and conducted public hearings in New Mexico in February 1997 to receive
comments on the application.
• Published final guidance for implementation of standards for management and
storage of transuranic waste at the WIPP (Subpart A of 40 CFR 191) and
announced availability of the guidance in the Federal Register on February 28,
1997.
• Notified Secretary of Energy Pena on May 16,1997, of the administrative
completeness of the CCA. This action initiated EPA's one-year period for
determining whether the WIPP will comply with the disposal regulations.
• Announced the Agency's determination regarding whether the WIPP complied
with laws and regulations identified in Section 9 of the Land Withdrawal Act
during the periods 1992-94 and 1994-96 in the Federal Register on August 20,
1997.
• Announced a proposed finding that the WIPP will comply with 40 CFR Part
191, provided that certain conditions are fulfilled, in the Federal Register on
October 30, 1997.
• Issued a final rule certifying that the WIPP will comply with 40 CFR Part 191,
provided that certain conditions are fulfilled, in the Federal Register on May 18,
1998.
• Maintained 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 97, EPA funded 23.7 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 $3.0 million in contract support for WIPP.
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 $2.6 million in contract support for WIPP.
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INTRODUCTION
With this report EPA 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
DOE's 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 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.
• Develop Compliance Criteria
Establish criteria to determine whether the WIPP will comply with the Agency's
radioactive waste disposal regulations (40 CFR Part 191).
• Conduct a Compliance Certification
Certify by informal rulemaking whether or not the WIPP complies with the
Agency's radioactive waste disposal regulations.
• 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.
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Organization of the Report
This report contains five main sections:
(1) Implementation Principles — the foundation of all EPA WIPP activities;
(2) 1996 WIPP 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 1997 and into
Fiscal Year 1998 is provided at the end of the report.
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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 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 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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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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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
ORlA'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 $2.6 million
in contract support.
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EPA's RESPONSIBILITIES UNDER THE LWA: Regulatory Activities
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.
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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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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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 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 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 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 final rule was approved for transmittal to the Office
of Management and Budget in December 1995 and was published in the Federal
Register in February 1996. The Agency's rationale for substantive changes to the
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proposed rule is described in detail in the preamble to the final rule and in the
Response to Comments document.
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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Certification of Compliance with 40 CFR Part 191 Disposal Regulations
Review Activities
The Act requires EPA to certify whether the WIPP facility complies with the
disposal regulations before DOE may place transuranfc waste in the WIPP for
disposal. The Act also 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 this Advance Notice
of Proposed Rulemaking, EPA requested public comment on the application. The
Notice of Proposed Rulemaking and accompanying technical support documents
contain EPA's responses to public comments sent to the docket or delivered at public
hearings in New Mexico.) 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 characteri-
zation; 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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Proposed and Final Notice of Certification
EPA published its proposed certification determination for the WIPP in the
Federal Register on October 30, 1997. EPA proposed to find that the WIPP complies
with the disposal regulations provided that DOE meets certain conditions. These
conditions are described below.
First, DOE is required to employ the most robust of the panel seal design
options proposed in the CCA.
Second, 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 is approved to ship only one waste stream. No other waste
may be shipped to the WIPP until EPA determines 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, as specifically required by the
Compliance Criteria.
Fourth, DOE must submit additional information related to its conceptual
design for passive institutional controls (PICs). In particular, DOE must revise its
implementation schedule for PICs to show that all measures will be completed as
soon as possible after closure of the WIPP.
In addition, EPA proposed to find 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
leases would not cause the WIPP to fail to comply with the disposal regulations.
EPA's certification of compliance must be conducted pursuant to the informal
rulemaking procedures prescribed by the Administrative Procedure Act (5 U.S.C.
Section 553). Accordingly, EPA opened a 120-day public comment period in October
1997 and held public hearings in New Mexico. Based on careful consideration of
public comments, EPA issued a final determination on May 18,1998, 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.
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Oil and Gas Lease Provisions of the WIPP Land Withdrawal Act
The presence of oil and gas leases below the WIPP site has 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 and Headquarters evaluated the potential
effects on the WIPP of oil and gas drilfing at the leases in question. The Agency
preliminarily 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.
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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." [See 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.
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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. 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 RCRA
program and the State's mixed waste program in lieu of the respective Federal
programs. On May 15,1998, the State issued a draft hazardous waste storage and
disposal facility 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.
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. For this reason, 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 State of New Mexico received a RCRA permit application from DOE in
May 1995. The New Mexico Environment Department issued a draft RCRA permit
for the WIPP on May 15,1998. Once final, this permit will cover the storage and
disposal of the hazardous portion of the transuranic waste expected to be placed at
WIPP.
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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 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.
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COMMUNfCATION AND CONSULTATION ACTIVITIES
EPA believes that a successful communication and consultation program
expedites the regulatory/oversight process and promotes sound public policy
decisions. EPA continues to inform interested parties about its WfPP oversight
functions and encourage public participation in the regulatory process.
EPA's toll-free WIPP Information Line 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 ail
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. Also, EPA has issued numerous press
releases or advisories to national and New Mexican media outlets.
EPA published another edition of the EPA WIPP Bulletin, which informs the
public about EPA's WIPP oversight program activities. EPA also issued press
advisories concerning its WIPP-related actions to national and New Mexico media
outlets. The Agency additionally maintains a WIPP home page on the Internet to give
the public direct access to important EPA documents. The WIPP Home Page
address is http://www.epa.gov/radiation/wipp/.
In January 1997 EPA met with major stakeholder organizations in New Mexico
to discuss their concerns about DOEJs Compliance Certification Application. EPA
held public hearings in Carlsbad, Albuquerque, and Santa Fe, New Mexico, on
February 19-21, 1997, to receive comments on the application. Over 180 people
testified at the hearings. Agency representatives also briefed the National Academy
of Sciences and interested members of Congress on EPA's WJPP activities.
After proposing its certification determination in October 1997 (see below),
EPA met again with major stakeholders in D ecember 1997. EPA held a second
round of public hearings in New Mexico in January 1998 to receive comments on the
proposed certification. Over 250 people testified at the hearings.
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APPENDIX: WIPP LWA IMPLEMENTATION HIGHLIGHTS
Date Activity
2/93 Radioactive Waste Disposal Standards proposed in the Federal
Register.
Hearings on Radioactive Waste Disposal Regulations held in New
Mexico.
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.
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).
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.
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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.
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 WJPP 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 Registerthat 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.
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12/97 EPA staff meet with New Mexico stakeholders to discuss issues related
to the Agency's proposed certification determination.
1/98 Public hearings held in New Mexico on the NPR for the compliance
certification.
2/98 Public comment period on the proposed certification determination
closed.
5/98 Final certification decision for the WIPP published in the Federal
Register.
6/98 WIPP tentatively scheduled by DOE to begin accepting waste.
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