[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Notices]
[Pages 39456-39459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14808]



[[Page 39456]]

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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: [email protected].
    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

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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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