[Federal Register: June 30, 2004 (Volume 69, Number 125)]
[Notices]
[Page 39456-39459]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn04-59]
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DEPARTMENT OF ENERGY
Revision to the Record of Decision for the Department of Energy's
Waste Isolation Pilot Plant Disposal Phase
AGENCY: Department of Energy.
ACTION: Revision to record of decision.
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SUMMARY: The Department of Energy (DOE), pursuant to its implementing
regulations under the National Environmental Policy Act (NEPA), 10 CFR
1021.315, is revising its Record of Decision for the Department of
Energy's Waste Isolation Pilot Plant Disposal Phase (WIPP ROD), 63 FR
3624 (Jan. 23, 1998). DOE has decided to dispose of up to 2,500 cubic
meters of transuranic (TRU) waste containing polychlorinated biphenyls
(PCBs) in concentrations of 50 parts per million (ppm) or greater at
the Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico. DOE's
current inventory of TRU waste mixed with PCBs is located at six DOE
sites: the Hanford Site in Washington, the Idaho National Engineering
and Environmental Laboratory, the Savannah River Site in South
Carolina, the Oak Ridge Reservation in Tennessee, the Rocky Flats
Environmental Technology Site in Colorado, and the Knolls Atomic Power
Laboratory in New York.\1\
Other sites in the DOE complex may also identify some TRU waste
that contains PCBs during the process of characterizing their TRU waste
for disposal at WIPP. Subject to further NEPA review, as appropriate,
DOE would dispose of this waste from other sites at WIPP once it meets
all of the acceptance criteria for placement in the repository. This
decision to dispose of TRU waste containing PCBs does not include the
small amount of TRU waste with PCB liquids and PCB articles (e.g.,
capacitors, transformers, electric motors, pumps and pipes) of
approximately 5 cubic meters. DOE will continue to work with the
Environmental Protection Agency (EPA) on a disposition path for these
wastes.
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\1\ In addition to more significant quantities of PCB-
contaminated waste already at the Hanford site, DOE transferred a
small amount of TRU waste with PCBs (4 cubic meters) from the Energy
Technology Engineering Site in California to Hanford in December
2002 for characterization, repackaging, and storage pending shipment
to WIPP. 67 FR 56989 (Sept. 6, 2002). At that time, DOE designated
that particular waste for disposal at WIPP in accordance with the
WIPP Land Withdrawal Act.
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In the WIPP ROD, issued under the Waste Isolation Pilot Plant
Disposal Phase Supplemental Environmental Impact Statement (WIPP SEIS-
II), DOE/EIS-0026-S2, September 1997, DOE decided to dispose of up to
175,600 cubic meters of TRU waste from atomic energy defense activities
at WIPP provided that the waste meets the repository's waste acceptance
criteria.
DOE's WIPP ROD specifically excluded TRU waste with PCBs. After the
WIPP ROD was issued in January 1998, EPA issued new regulations under
the Toxic Substances Control Act (TSCA), Disposal of Polychlorinated
Biphenyls, Final Rule, 63 FR 35384 (June 29, 1998), that allow the
disposal of specific types of PCB wastes (such as PCB remediation
waste) without treatment at a chemical waste landfill authorized in
accordance with EPA regulations regarding TSCA at 40 CFR Part 761. DOE
then asked EPA to authorize WIPP as a chemical waste landfill so that
DOE could use the repository for disposal of its TRU waste containing
PCBs. On May 15, 2003, EPA authorized WIPP as a chemical waste
landfill. DOE also applied to the State of New Mexico for a
modification to WIPP's hazardous waste facility permit proposing to
remove language reciting the prohibition on disposal of TRU waste with
PCBs. This recital was based on the January 1998 WIPP ROD's exclusion
of such TRU wastes, which in turn had been based on the fact that at
that time there was no regulatory process available for WIPP to obtain
an authorization from EPA to dispose of PCBs. On September 11, 2003,
the State of New Mexico removed the recital by approval of a permit
modification that allows disposal of TRU waste with PCBs at WIPP. With
these regulatory changes, it is reasonable to believe that DOE will be
able to obtain all the regulatory approvals necessary to allow it to
dispose of most of the Department's anticipated inventory of TRU waste
with PCBs.
Because the Department's estimates of its inventory of TRU waste
with PCBs exceeds the inventory analyzed in the WIPP SEIS II and would
not be thermally treated before disposal, DOE prepared a Supplement
Analysis, Supplement Analysis for Disposal of Polychlorinated Biphenyl-
Commingled Transuranic Waste at the Waste Isolation Pilot Plant (DOE-
EIS-0026-SA02), in accordance with DOE regulations for compliance with
NEPA. Based on the Supplement Analysis, DOE determined that a
supplement to the WIPP SEIS II is not required for the action decided
in this revised ROD.
This revision to the WIPP ROD also constitutes the Department of
Energy's designation of this waste for disposal at WIPP in accordance
with Section 9(a)(1)(H) of the WIPP Land Withdrawal Act. Accordingly,
this waste is exempt from treatment standards and land disposal
requirements promulgated pursuant to section 3004 of the Solid Waste
Disposal Act (42 U.S.C. 6924).
FOR FURTHER INFORMATION CONTACT: For further information regarding the
WIPP SEIS-II, its ROD, the Supplement Analysis or for copies of these
and other documents referenced herein, contact: Harold Johnson, WIPP
SEIS-II Document Manager, Mail Stop 535, U.S. Department of Energy,
Carlsbad Field Office, Post Office Box 3090, Carlsbad, NM 88221,
Telephone (505) 234-7349, E-Mail: Harold.Johnson@wipp.ws.
For further information on DOE's National Environmental Policy Act
(NEPA) process, contact: Carol M. Borgstrom, Director, Office of NEPA
Policy and Compliance (EH-42), U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585, Telephone 202-586-4600,
or leave a message at 1-800-472-2756.
This Revised Record of Decision and the associated Supplement
Analysis (SA) will also be available on DOE's NEPA Web page at: http://www.eh.doe.gov/nepa
under DOE NEPA Documents. The SA is available from
the contact person identified above and in the DOE public reading room
at the Forrestal Building in Washington, DC.
SUPPLEMENTARY INFORMATION:
I. Background
TRU waste is radioactive waste that contains radionuclides with
atomic numbers greater than that of uranium (92) and half-lives longer
than 20 years in concentrations greater than 100 nanocuries per gram of
waste. Contact-handled (CH) TRU waste has a radiation dose rate at a
package surface of 200 millirems or less per hour and can be safely
handled by workers without additional shielding. Remote-handled (RH)
TRU waste has a radiation dose rate at a package surface greater than
200 millirems per hour and requires special shielding to protect
workers. In the WIPP ROD, issued under the WIPP SEIS-II, DOE decided to
dispose of up to 175,600 cubic meters of TRU waste derived from atomic
energy defense activities at WIPP, provided that the waste meets the
repository's waste acceptance criteria. 63 FR 3628 (Jan. 23, 1998).
That decision specifically excluded TRU waste with PCBs. DOE also
decided in that ROD that it would generally treat TRU waste destined
for WIPP to meet the repository's TRU waste acceptance criteria.
However, based on site-specific circumstances, DOE might treat TRU at
some sites more
[[Page 39457]]
extensively than these criteria would require.
In a companion ROD, based on the analyses in and made pursuant to
the Waste Management Programmatic EIS (WM PEIS), DOE/EIS-0200, May
1997, DOE also announced that it would generally treat and store its
TRU waste at the sites where that waste was currently located, except
in the case of Sandia National Laboratory's waste, which would be
transferred to the Los Alamos National Laboratory. Record of Decision
for the Department of Energy's Waste Management Program: Treatment and
Storage of Transuranic Waste, 63 FR 3629 (Jan. 23, 1998). That decision
also stated that DOE might decide in the future to ship TRU wastes at
sites where it might be impractical to prepare them for disposal to
other sites that had or were slated to have the necessary capability.
II. Basis for the Decision
Regulatory authorizations for TRU waste containing PCBs: Much of
DOE's TRU waste contains hazardous constituents that are regulated
under the Resource Conservation and Recovery Act (RCRA). At the time
that DOE issued the WIPP ROD in January 1998, DOE had applied for, but
had not yet received, initial certification of the WIPP repository by
EPA under the WIPP Land Withdrawal Act, 63 FR 3624 (Jan. 23, 1998),\2\
and a hazardous waste facility permit issued by the State of New Mexico
pursuant to RCRA and New Mexico's Hazardous Waste Act. Since that time,
both EPA \3\ and New Mexico \4\ have issued these approvals. Consistent
with the WIPP ROD and with these approvals, DOE has disposed of 55,768
cubic meters of contact handled (CH) TRU waste as of early June 2004.
EPA has also approved DOE's procedures for characterizing remote
handled (RH) TRU waste.\5\
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\2\ EPA had issued a proposed certification of compliance,
Criteria for the Certification and Recertification of the Waste
Isolation Pilot Plant's Compliance With the Disposal Regulations:
Certification Decision, 62 FR 58792 (Oct. 30, 1997), as the WIPP ROD
noted, 63 FR at 3624.
\3\ Criteria for the Certification and Recertification of the
Waste Isolation Pilot Plant's Compliance With the Disposal
Regulations: Certification Decision, 63 FR 27354 (May 18, 1998).
EPA's certification specified that DOE would have to obtain EPA
approval of its quality assurance programs at all sites other than
Los Alamos, as well as of its waste characterization system of
controls for all waste streams other than retrievably stored legacy
debris.
\4\ Hazardous waste permit issued to DOE October 27, 1999, by
New Mexico Environment Department (NMED).
\5\ Letter dated March 25, 2004, from Frank Marcinowski,
Director, EPA Region VI Radiation Protection Division, to R. Paul
Detwiler, Acting Manager, Carlsbad Field Office.
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Some of DOE's TRU waste contains PCBs in concentrations of 50 ppm
or greater. Disposal of such waste is regulated under TSCA. At the time
DOE issued the WIPP ROD, neither DOE nor any commercial facility had
the capability to treat TRU waste with PCBs in a manner that would meet
the treatment requirements for PCBs imposed by TSCA in order to allow
it to be disposed of at WIPP, and applicable EPA regulations regarding
PCB-contaminated waste contained no provision that would allow for
disposal of such waste there without meeting these requirements.
Accordingly, the WIPP ROD specifically excluded waste with PCBs with
concentrations of 50 ppm or greater from the decision to proceed with
disposal operations at WIPP.
Subsequently, EPA issued new regulations for PCB disposal under
TSCA, 63 FR 35384 (June 29, 1998), establishing categories of PCB waste
(such as PCB remediation waste) that could be disposed of without
treatment in a chemical waste landfill authorized pursuant to 40 CFR
Part 761. In light of EPA's new PCB regulations, DOE reconsidered its
strategy for managing TRU waste containing PCBs. DOE updated its
inventory of this waste, which identified a larger volume of CH- and
RH-TRU waste with PCBs than was identified in the WIPP SEIS-II. DOE
also classified its TRU wastes containing PCBs according to the
categories established in the new PCB regulations. Most of DOE's TRU
waste containing PCBs in concentrations of 50 ppm or greater is
remediation waste, which does not require treatment prior to disposal
in an authorized chemical waste landfill.
DOE applied to EPA for authorization of WIPP as a chemical waste
landfill in order to dispose of its TRU waste containing PCBs. On
December 10, 2002, EPA proposed to grant this authorization, and on May
15, 2003, EPA authorized WIPP as a chemical waste landfill. DOE also
applied to the State of New Mexico for a modification to WIPP's
hazardous waste facility permit to remove language reciting the
prohibition on disposal of TRU waste with PCBs, which was based on the
fact that at the time there was no regulatory process available for
WIPP to obtain an authorization to dispose of PCBs. On September 11,
2003, the State of New Mexico granted the permit modification. With
these regulatory changes, it is reasonable to believe that DOE will be
able to obtain all the regulatory approvals necessary to allow it to
dispose of most of the Department's anticipated inventory of TRU waste
containing PCBs in concentrations of 50 ppm or greater. DOE must still
obtain certain additional approvals from EPA with respect to its waste
characterization programs at certain sites where the TRU waste
containing PCBs is located.
Prior NEPA Analyses: In the WIPP SEIS II, DOE analyzed the
potential environmental impacts of the treatment, storage,
transportation, and disposal of TRU waste, including TRU waste
containing PCBs in concentrations of 50 ppm or greater. The WIPP SEIS
II assumed that TRU waste containing PCBs would be thermally treated to
destroy the PCBs before disposal at WIPP. To determine whether a
supplemental EIS would be needed for the proposed action to dispose of
approximately 2,500 cubic meters of TRU waste containing PCBs at WIPP,
DOE prepared the Supplement Analysis for Disposal of Polychlorinated
Biphenyl-Commingled Transuranic Waste at the Waste Isolation Pilot
Plant, June 2004, (DOE EIS-0026-SA02) in which DOE reviewed the impacts
that would be expected from preparing and transporting up to 2,500
cubic meters of TRU waste containing PCBs and disposing of this waste
at WIPP. Adding this volume of TRU waste to the Basic Inventory in the
WIPP SEIS II will not exceed the total volume of 175,600 cubic meters
analyzed in the WIPP SEIS II Proposed Action Alternative. DOE estimated
the maximum impacts that could be associated with the addition of TRU
waste containing PCBs (i.e., waste that would not be thermally treated
to destroy the PCBs before disposal) to the hazardous organic compounds
analyzed in Action Alternative 2 of the WIPP SEIS II. These impacts
would be extremely small because no release of PCBs will occur under
undisturbed conditions for at least 10,000 years. In no instance would
the presence of PCBs increase the impacts beyond the small impacts
presented in the WIPP SEIS II. Based on DOE's review of the potential
impacts on land use, geology, hydrology, biological resources, air
quality, socioeconomic conditions, noise, cultural resources,
environmental justice, waste handling and characterization,
transportation and long-term performance of the WIPP repository, DOE
concluded that disposing of up to 2,500 cubic meters of TRU waste
containing PCBs at WIPP is not a substantial change to the Proposed
Action analyzed in the WIPP SEIS II. Further, there are no substantial
changes to the proposed action or significant new circumstances or
information relevant to environmental concerns and
[[Page 39458]]
bearing on the proposed action or its impacts. For these reasons, DOE
has determined that a supplement to the WIPP SEIS II is not required
under 40 CFR 1502.9 or 10 CFR 1021.314 in order for DOE to implement
the proposed action.
Designation of Waste for WIPP: Section 9(a)(1)(H) of the WIPP Land
Withdrawal Act exempts mixed TRU waste designated for disposal at WIPP
from certain provisions of the Solid Waste Disposal Act, 42 U.S.C. 6901
et seq.:
With respect to transuranic mixed waste designated by the
Secretary for disposal at WIPP, such waste is exempt from treatment
standards promulgated pursuant to section 3004(m) of the Solid Waste
Disposal Act (42 U.S.C. 6924(m)) and shall not be subject to the
land disposal prohibitions in section 3004(d), (e), (f) and (g) of
the Solid Waste Disposal Act.
WIPP Land Withdrawal Amendment Act, Pub. L. 104-201, 110 Stat. 2422
(1996), section 3188(a) at Stat. 2853. DOE's prior RODs determining
that various waste streams will be disposed of at WIPP, issued by
officials with authority for management of nuclear waste, constitute
designations of waste for WIPP under section 9(a)(1)(H) of the WIPP
Land Withdrawal Act.
In addition, the Secretary has also confirmed and ratified all
prior designations. DOE's practice has been to issue these RODs with
the reasonable expectation that it will be able to obtain all
additional regulatory approvals it needs to carry out these decisions.
DOE believes this practice is appropriate and that the fact that DOE
needed certain additional regulatory approvals that it reasonably
expected to obtain at the time it issued those RODs did not preclude
the RODs from operating as a designation. Similarly, with respect to
the PCB-contaminated transuranic waste, DOE does not believe that the
fact that it still lacks certain regulatory approvals operates as an
obstacle to its proceeding with today's ROD or to this ROD constituting
a designation of TRU wastes for disposal at WIPP.
While DOE has now obtained the primary regulatory authorizations
needed to dispose of TRU wastes containing PCBs in concentrations of 50
ppm or greater at WIPP, DOE recognizes that additional authorizations
will be needed prior to shipping some wastes from particular sites to
WIPP. For example, the Oak Ridge Reservation has not yet obtained
approval from EPA and the New Mexico Environment Department (NMED) of
its waste characterization program for certifying shipments of any
types of TRU wastes to WIPP. Other sites, such as the Hanford Site in
Richland, Washington, are approved to ship certain types of TRU wastes
to WIPP (Hanford has shipped more than 450 cubic meters of TRU waste to
WIPP), but have not yet obtained approval from EPA or NMED of all
aspects of their waste characterization procedures for certifying TRU
waste containing PCBs in concentrations of 50 ppm or greater.
Nevertheless, DOE believes it is appropriate in this ROD to
designate its entire inventory of remediation and bulk product
transuranic wastes containing PCBs in concentrations of 50 ppm or
greater for disposal at WIPP pursuant to Section 9(a)(1)(H) of the WIPP
Land Withdrawal Act. The word ``designation'' connotes a fairly simple
and unilateral executive action by the Department with no particular
formalities associated with it. It certainly contains no suggestion
that DOE must await the obtaining of all regulatory approvals before
taking this unilateral act. Nothing in the WIPP Land Withdrawal Act
suggests that the Secretary's authority to designate waste for disposal
at WIPP is limited to wastes with respect to which DOE has obtained all
necessary regulatory authorizations for disposing of them in this
fashion. Moreover, the purpose of section 9(a)(1)(H) is to exempt
wastes destined for WIPP from costly treatment and related requirements
that otherwise would be applicable under the Solid Waste Disposal Act.
Given that there is every reason to believe that DOE will be able to
obtain the additional approvals it needs, there is no reason to require
DOE to meet the Solid Waste Disposal Act's Land Disposal Restriction
treatment requirements and associated storage limitations. To the
contrary, allowing DOE to proceed with designating TRU mixed wastes
containing PCBs in concentrations of 50 ppm or greater for disposal at
WIPP prior to obtaining these authorizations is fully consistent with
the purposes of section 9(a)(1)(H).
Conversely, requiring DOE to wait to designate wastes for disposal
at WIPP until all regulatory approvals needed to send the wastes to
WIPP have been obtained would subject those wastes to treatment
requirements that ultimately will not apply once the wastes are ready
for disposal at WIPP. This would result in regulatory confusion and in
wasted time and money spent to comply with requirements from which
mixed TRU wastes ultimately sent to WIPP are exempt by virtue of
section 9(a)(1)(H) of the WIPP Land Withdrawal Act. DOE believes the
best and most rational interpretation of section 9(a)(1)(H) is that DOE
may designate waste for disposal at WIPP at the time that DOE
determines the waste can eventually be sent to WIPP, so long as there
is a reasonable prospect that it will receive the necessary regulatory
approvals for WIPP disposal.
With respect to the wastes at issue here, DOE believes that it will
be able to obtain from EPA and New Mexico any additional approvals it
may need to dispose of this material at WIPP, including state approval
of the RH-TRU waste analysis plan. Waiting to designate these wastes
for disposal at WIPP until all approvals needed to send the wastes to
WIPP have been obtained would subject these wastes to treatment
requirements that ultimately will not apply once the wastes are ready
for disposal at WIPP.
Accordingly, DOE believes it is appropriate to designate the
approximately 2,500 cubic meters of TRU waste containing PCBs in
concentrations of 50 ppm or greater for disposal at WIPP, within the
meaning of section 9(a)(1)(H) of the WIPP Land Withdrawal Act. This
designation comprises up to 2,500 cubic meters of TRU wastes with PCBs
in concentrations of 50 ppm or greater that have been identified at the
Hanford Site, the Idaho National Engineering and Environmental
Laboratory, the Savannah River Site, the Oak Ridge Reservation, the
Rocky Flats Environmental Technology Site, the Knolls Atomic Power
Laboratory, and similar wastes that may be identified in the future at
these or other sites, subject to further NEPA review, as appropriate.
III. Decision
In accordance with DOE's implementing regulations under NEPA, DOE
has decided to dispose of its TRU waste containing PCBs in
concentrations of 50 ppm or greater at WIPP near Carlsbad, New Mexico.
DOE has identified approximately 2,500 cubic meters of TRU wastes with
PCBs, located at six sites: the Hanford Site in Washington, the Idaho
National Engineering and Environmental Laboratory, the Savannah River
Site in South Carolina, the Oak Ridge Reservation in Tennessee, the
Rocky Flats Environmental Technology Site in Colorado, and the Knolls
Atomic Power Laboratory in New York. DOE will continue to work with EPA
on options for the disposal of the relatively small portion of the
Department's inventory of TRU wastes with PCBs (approximately 5 cubic
meters of PCB liquids and PCB articles) that at present cannot be
placed in a chemical waste landfill.
In the future, these or other sites in the DOE complex may identify
[[Page 39459]]
additional TRU waste that contains PCBs during the process of
characterizing their TRU waste for disposal at WIPP. Subject to further
NEPA review, as appropriate, DOE would dispose of this waste at WIPP if
it meets all of the acceptance criteria for placement in the
repository. DOE's decision in this ROD to dispose of this waste at WIPP
constitutes the designation of that waste for purposes of section
9(a)(1)(H) of the WIPP Land Withdrawal Act.
DOE needs to safely and securely dispose of the TRU waste
containing PCBs that has accumulated at its facilities and to provide
for the disposal of such waste that it may generate in the future. DOE
has requested and received the primary regulatory authorizations
necessary to proceed with this decision. EPA has granted DOE's request
for authorization to operate WIPP as a chemical waste landfill in
accordance with TSCA, having confirmed that most of DOE's TRU waste
with PCBs is remediation waste that can be disposed of at WIPP.
Further, the State of New Mexico has approved a modification to WIPP's
hazardous waste facility permit that removed language reciting the
prohibition on disposal of TRU waste with PCBs. For the reasons
discussed above, and in light of the finding that no further NEPA
review is required, DOE can now safely isolate these wastes from the
environment by disposing of them at WIPP.
Issued in Washington, DC, on June 23, 2004.
Jessie Hill Roberson,
Assistant Secretary for Environmental Management.
[FR Doc. 04-14808 Filed 6-29-04; 8:45 am]
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