L.6.0 STATUTORY AND REGULATORY REQUIREMENTS
L.6.1 RCRA/CERCLA
Comment Number 0019.01
WDFW
Comment Environmental restoration at the Hanford Site includes new construction associated with remedial and response actions as result of release(s) of hazardous substance. These activities are within the realm of the Comprehensive Environmental Response, Compensation, Liability Act (CERCLA) and Resource Conservation and Recovery Act. WDFW considers this proposed action to be within the ambit of CERCLA.
Response The Hanford Federal Facility Agreement and Consent Order (Tri-Party Agreement) defines the applicability of RCRA and CERCLA and the Washington State Hazardous Waste Management Act for the various actions being taken at the Hanford Site. The proposed action and alternatives addressed in the TWRS Draft EIS have been determined in the Tri-Party Agreement to be within the bounds of RCRA regulation. Because the information contained in the Draft EIS is correct, no change to the text was made.
Comment Number 0072.02
CTUIR
Comment As a stand alone document this EIS should clearly state its relationship with the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the State of Washington's applicable hazardous waste management laws. The impacts of privatization including the entering of contracting obligations must be specifically addressed in the TWRS EIS. Furthermore, the DOE's trust responsibility to American Indian tribes and its natural and cultural resource steward responsibilities must also be specifically addressed in the TWRS EIS.
Response As stated in Volume One, Section 6.0, the Tri-Party Agreement defines the applicability of RCRA, CERCLA, and the Washington State Hazardous Waste Management Act at the Hanford Site. The TWRS program is primarily a RCRA compliance action and remediation of the tank waste is a RCRA action, not a CERCLA action. The State of Washington has been delegated the authority to administer the RCRA program. The environmental impacts of the Phased Implementation alternative, which are similar in impacts to the privatization effort, have been stated in the Draft EIS. No other environmental impacts of entering into contracting obligations have been postulated. Any contractors involved in Hanford work must comply with the Tri-Party Agreement and applicable Federal, State, and local laws and regulations. Regarding DOE trust responsibilities, a statement has been added in Volume One, Section 6.0 that defines DOE's policy on interacting with Native American organizations.
Comment Number 0072.03
CTUIR
Comment The idea of RCRA is to cover all aspects of the "cradle-to-grave" management of hazardous wastes: generation, transportation, storage, treatment, disposal and closure. The goal of the TWRS-EIS should be to safely and effectively retrieve, treat, and isolate, from the human and natural environment certain Hanford wastes that may seriously harm human, natural, and cultural resources through time. However, the current TWRS-EIS does not achieve this goal.
Response As stated in Volume One, Section 6.0, the EPA has delegated authority to Ecology to administer the RCRA program in the State of Washington. EPA, Ecology, and DOE have negotiated the Tri-Party Agreement, which defines actions necessary to comply with RCRA for Hanford tank waste. A goal of the TWRS program is to comply with the Tri-Party Agreement. Several alternatives analyzed in the TWRS EIS, including the preferred alternative, achieve that goal. Those alternatives are shown to safely and effectively retrieve, treat, and isolate tank waste in ways that comply with applicable regulations and minimize ecological and human risk. For a discussion of this issue, please refer to Volume One, Section 6.2. Please refer to the response to Comment number 0072.02.
Comment Number 0072.04
CTUIR
Comment CERCLA is applicable in this case because of widespread subsurface contamination and the designation of numerous Operable Units in the Tank Farm areas. These areas resulted from the long-term degradation of Hanford tank farms that allowed such dangerous and persistent high-level radioactive and hazardous mixed wastes to leak into the subsurface. Historically and today, the contaminated subsurface continually leaches contaminants further into the vadose zone, into the groundwater, and ultimately into the Columbia River--a critical Tribal resource. Comprehensive source-term identification and control must be a fundamental component of the overarching TWRS program.
Response The existing vadose zone and groundwater contamination is not within the scope of the TWRS EIS. Inventory characterization and control during tank waste retrieval, treatment, and disposal has been addressed in the Draft EIS in Volume One, Section 3.4 and Volume Two, Appendix B. Please refer to the response to Comment numbers 0072.08, 0101.06, 0012.15, 0030.02, 0098.04, 0019.03, and 0091.01 for discussions of the issues of closure, vadose zone contamination, and the applicability of CERCLA to the TWRS action, respectively.
L.6.2 TRI-PARTY AGREEMENT
Comment Number 0032.01
Heacock, Harold
Comment We consider the cleanup, stabilization, processing, disposal of the tank waste to be the focal point of the Hanford cleanup program.
We also strongly support the Tri-Party Agreement as the definitive document for the Hanford cleanup program. Compliance with the Tri-Party Agreement is a major responsibility and obligation of the Department.
The Department must in its selection of an alternative for the cleanup of tank wastes maintain and comply with its commitments under the Tri-Party Agreement.
Several of the alternatives considered in this Draft EIS do not meet the requirements of either the Tri-Party Agreement or statutory cleanup requirements for waste cleanup and disposal and should not be considered further.
Response DOE and Ecology acknowledge the preference expressed in the comment and will take this preference and other public comments into consideration when making a final decision on remediating the TWRS waste. Please refer to the response to Comment number 0040.01 for a discussion of factors influencing the evaluation of alternatives.
As required by CEQ, the TWRS Draft EIS identifies and analyzes the range of reasonable alternatives for the proposed action and the alternative of no action. Potential violation of existing laws, regulations, or agreements is not considered a basis for eliminating otherwise reasonable alternatives from consideration under NEPA guidance. Please refer to the response to Comment number 0072.05 for a discussion of NEPA requirements to consider a range of alternatives and 0072.52 and 0072.80 for a discussion of why an EIS is required to analyze all alternatives, even when they do not comply with regulations.
Comment Number 0047.03
Ahouse, Loretta
Comment It is of the utmost importance the Tri-Party Agreement be abided by. Please, do not delay, just get on with the cleanup. The Tri-Party Agreement outlines clearly what are the priorities for citizens in Washington State.
I am very concerned that the Department of Energy is considering not abiding by this agreement.
Response DOE and Ecology acknowledge the preference expressed in the comment and will take this preference and other public comments into consideration when making a final decision on remediating the TWRS waste. DOE fully intends to abide by the Tri-Party Agreement. The preferred alternative, Phased Implementation, is consistent with the Tri-Party Agreement requirements and major milestones. Part of getting on with the cleanup is complying with Federal law (i.e., NEPA), which requires preparation and public review of an EIS for any major Federal action including an action such as defined in the Tri-Party Agreement. Please refer to the response to Comment numbers 0072.80, 0034.05, 0072.05, 0038.02, and 0009.01.
Comment Number 0062.01
Longmeyer, Richard
Comment I've been following the process of the cleanup at Hanford for many, many years now. I have made comments at public meetings before, and I'm well aware of the action that had been going on for many years in trying to accomplish the process. It concerns me some that we've seen many mile posts, or milestones missed in the Tri-Party Agreement. The original Tri-Party Agreement when it was enacted was touted as the way of accomplishing the cleanup, and when we began to see that we weren't going to accomplish some of the mile posts, they just decided well we'll just renegotiated the agreement. And it has somewhat lessened the impact that it was intended to have of putting some time bounding on the process of cleaning up Hanford.
In particular, this year we now have the new process of privatization of the vitrification plant. And really what we've done is just push the process of accomplishing the vitrification farther and farther behind, as we've gone on and on. And as the individual from HEAL during his comments stated, we study and we study, and really don't accomplish much in the way of a cleanup.
Response DOE is committed to complying with the Tri-Party Agreement and making every effort to meet Tri-Party Agreement milestones. Tri-Party Agreement milestones are identified in Volume One, Section 6.0. Please refer to the response to Comment numbers 0047.03, 0072.02, 0072.03, and 0072.52.
Comment Number 0068.01
Martin, Todd
Comment The Tri-Party Agreement has been spoken about several times tonight, and I want to address that as well. One of the problems we've had, indeed what is left us with the legacy of Hanford is the problem of accountability. How do we make the Federal government accountable? The Tri-Party Agreement is that mechanism. It is up to this point we've had a Tri-Party Agreement that has had a very long list of specific dates DOE must meet, as well has intermediate steps to get to those dates. These are things that we can hold DOE accountable to. The Tri-Party Agreement, as it now exists under the privatization plan, has been reduced to just a few handful of milestones that are generally way out in the future. Those are very easy ones for the Federal government to sign up to, because they don't have to necessarily make the progress to meet those. There is no affective accountability mechanism being built into the Tri-Party Agreement right now.
Response The TWRS EIS is providing the required environmental impact analysis for the proposed action and alternatives in support of compliance with the Tri-Party Agreement and applicable Federal and State regulatory requirements. DOE is accountable to Washington State and the EPA, which have enforcement authority for the Tri-Party Agreement. Please refer to the response to Comment numbers 0062.01, 0047.03, 0072.02, 0072.03, 0038.02, and 0009.01.
Comment Number 0069.14
Pollet, Gerald
Comment We think it is wrong for the departments to put into the EIS an assumption that waste that remains at Hanford forever and is dubbed low-activity waste, is anything but high-level nuclear waste. And in fact the State of Washington has taken that position before. And it would require a new policy issuance from the Department of Ecology to reverse course on that.
Response The terms used in the EIS are defined by or consistent with the Tri-Party Agreement and regulatory authority and opinion. Ecology is a party to the Tri-Party Agreement and a co-preparer of this EIS and has agreed to dispose of Hanford tank waste as set forth in the Tri-Party Agreement. Under the Tri-Party Agreement, the tank waste will be processed into two fractions, a concentrated HLW fraction containing the majority of the radioactive constituents, which would be disposed of offsite in a potential geologic repository, and a LAW fraction containing a low concentration of radioactive constituents, which would be disposed of onsite at the Hanford Site. The NRC staff concluded that the low-activity fraction would not be HLW. Please refer to the response to Comment numbers 0035.04, 0052.01, 0069.05, 0072.118, and 0072.111. Because the information contained in the Draft EIS is correct, no change to the text was made.
Comment Number 0072.52
CTUIR
Comment It is still not logical to evaluate alternatives which violate the Tri-Party Agreement, which is a volume-based retrieval agreement. The sentence (p. S-13) stating that the Tri-Party Agreement allows privatization in order to "improve performance and reduce costs without sacrificing worker or public safety of environmental protection" suggests that there is room for negotiating variations in the retrieval/disposal/closure process that combines risk-based and volume-based approaches. If this is the case, then CTUIR must be a party to the discussions so that the proper technical and regulatory issues are adequately addressed. The Tri-Party Agreement currently requires that each tank be retrieved to a pre-determined percentage, and only if this is not practicable will negotiations be started on an individual tank basis for an alternative remedy. The TWRS EIS did not seem to recognize this.
Response Major Federal actions significantly affecting the environment are required by NEPA to consider alternatives to the proposed action. Neither NEPA nor its implementing regulations (40 CFR 1500-1508) make any provision for excluding an otherwise reasonable alternative from the analysis on the basis of noncompliance with existing law, regulation, or agreement. Rather, an EIS must state how alternatives considered will or will not achieve requirements of environmental law and policy (40 CFR 1502.2d). For a related discussion please refer to the response to Comment numbers 0072.80 and 0072.05.
DOE recognizes the CTUIR interest in the Tri-Party Agreement. Section 10.10 of the Tri-Party Agreement acknowledges and defines the involvement of affected Tribal Nations. DOE remains committed to fulfillment of the stated requirements.
Any item in the Tri-Party Agreement may be renegotiated if agreeable to the parties. Tri-Party Agreement Milestone M-45-00 does not include the word "only" as stated in the comment. Therefore, the Tri-Party Agreement identifies circumstances that could result in modification of retrieval criteria. It does not exclude modification in response to other circumstances.
Comment Number 0094.02
Moore, Jennifer
Comment I think the Tri-Party Agreement should adhere to be ... I mean, excuse me, I think the Department of Energy should adhere to the Tri-Party Agreement which they entered into willingly.
Response DOE and Ecology acknowledge the preference expressed in the comment and will take this preference and other public comments into consideration when making a final decision on remediating the TWRS waste. Having agreed to the Tri-Party Agreement, DOE has complied with and will continue to comply with the Tri-Party Agreement. The Tri-Party Agreement provides a mechanism for dispute resolution, annual review, and renegotiation. This mechanism permits accommodation of unforeseen implementation problems, new information, better, faster, or cheaper technology, or other factors that the parties agree require consideration and decision. Please refer to the response to Comment numbers 0062.01 and 0072.52.
Comment Number 0101.09
Yakama Indian Nation
Comment The EIS should be revised to take into consideration the conditions and regulatory impacts, including potential cost impacts, associated with the potential future regulation of privatized and/or Government nuclear facilities and nuclear material possession and handling.
Response The potential effect of regulation on privatization was considered throughout the analysis of potentially applicable regulations. Other than the likelihood of NRC licensing of privatized facilities, no major difference was noted. Any change in regulation of government nuclear facilities is speculative and without basis for analysis in the EIS; therefore, no change has been made to the EIS.
L.6.3 INCIDENTAL WASTE
Comment Number 0005.57
Swanson, John L.
Comment On page 6-19 it is said (following a sentence regarding incidental waste) "Therefore, DST waste not exceeding the Class C standards would be suitable for disposal as incidental waste." This is an illogical conclusion (with reference to the preceding sentence), and I do not believe that it is a correct interpretation of "policy."
Response This sentence was not intended to be a conclusion. The sentence has been revised to state that the incidental waste would not exceed the concentration limits for Class C LLW, as defined in 10 CFR 61.
Comment Number 0069.05
Pollet, Gerald
Comment When we look at these alternatives. Let me go back up, throw on this slide for the alternatives. When we look at the alternatives, we look at, what we're talking about is claiming some fraction of these wastes are high-level, and some fraction are low-level. This EIS is based on assumption that violates Federal law. Federal law considers all wastes that are in the tanks as the by-product of the nuclear weapons separations process, and the reactor created fuel that was basically melted down, turned into the liquid high-level waste. All of it is high-level waste. And one question is whether not we as the public, and the State of Washington, should be willing to say that, oh, after you separate it some portion is going to be claimed to be low activity, and therefore low-level waste and can be buried at Hanford forever, and only a tiny smidgeon needs to be considered legally high-level waste. The law is very clear. It is all high-level waste. Therefore, no matter how you calculate this repository fee, because it is based on essentially the waste content, it really doesn't vary. It doesn't vary legally, because it is based on the waste content. So whether or not you separate it, the repository fee isn't going to vary.
Response No Federal law requires placing DOE HLW in a geologic repository or prohibits separating HLW components from a residual of other waste components. Nor are there Federal laws that prohibit disposal of the LAW residual in accordance with applicable LLW disposal criteria. In support of a denial of petition for rulemaking (58 FR 12342), the NRC reviewed DOE's earlier plans to separate Hanford Site tank waste into concentrated HLW for geologic disposal and LAW for disposal onsite in near-surface vaults. The NRC concluded that, on the condition that most of the originally generated radioactive material would be recovered, the residual waste material should be classified as incidental waste because these wastes are incidental to the process of recovering HLW. The NRC concluded that the residual waste would not be HLW and therefore not be subject to NRC licensing authority (58 FR 12342). DOE has authority to dispose of the incidental waste in accordance with LLW disposal criteria. Applicable regulatory requirements are discussed in the Summary and Volume One, Section 6.0.
The amount of HLW that ultimately could be accepted at a national repository is a function of available subsurface area and emplacement constraints among HLW and SNF within this area. In addition, there is a statutory limit on emplacement of HLW and SNF in a first repository (70,000 MTHM) until a second repository is in operation. As a planning basis, the Department has allocated 10 percent of the statutory capacity of the first repository for defense SNF and HLW.
The physical amount of available subsurface area for HLW and SNF disposal and the associated number of packages of HLW and SNF would be defined through repository design and performance assessment activities based on information collected during repository scientific investigations. Neither of these activities is completed. However, for planning purposes, the repository Advanced Conceptual Design assumes that 12,900 canisters of defense HLW, each containing 0.5 MTHM, can be accommodated within the statutory limit.
A number of factors are important in estimating disposal costs including number and size of canisters handled, number of waste packages, operation and capital costs, and number of shipments to a repository. In addition, there are common costs that must be allocated among waste generators, such as development and evaluation costs, to ensure full cost recovery. Using radionuclide inventory of Hanford HLW relative to other waste would not provide an equitable basis for cost estimating. Please refer to the response to Comment numbers 0004.01, 0057.04, and 0081.02 for information regarding repository cost and capacity issues. Because the information contained in the Draft EIS is correct, no change to the text was made.
L.6.4 OTHER
Comment Number 0005.08
Swanson, John L.
Comment Going into this review, I was most interested in seeing how the HLW disposal aspects were handled-because I have been hearing different stories for some time regarding not only what the costs of such disposal were likely to be, but also what are the laws/rules governing such disposal and what are peoples interpretations/speculations on things such as how much space will be available for defense HLW in the first repository. Unfortunately, this EIS did nothing to clarify the issues; in fact, I feel that it contains misinterpretations of the facts. I feel that a much greater effort should have been devoted to understanding and explaining the issues involved in this area. Maybe the picture is really so muddled that it is not possible to understand; if so, it is a pretty sad commentary on the abilities and actions of the DOE. Some examples of my and/or your confusion in this area are:
(a) I do not believe that there is a "canister count" limit for defense HLW in the first repository, but this draft repeatedly assumes one- and compares the number of canisters estimated for the different alternatives to that assumed number.
(b) I do believe that there is a MTHM limit on the first repository; and that all of the alternatives that send all of the HLW to the repository would contribute the same to this limit (e.g., the extensive separations and the ex situ/no separations case would send essentially the same amount of radioactivity to the repository).
(c) I have heard that there is an "equivalent MTHM" value that is to be applied to defense HLW, but I see no mention of it in this EIS. (The EIS says that ~100,000 MTU were processed at Hanford, and that the TOTAL limit on the first repository is 70,000 MTHM; unless there is an "equivalent MTHM" factor, the Hanford waste alone would exceed the total capacity of the first repository).
I hope to be able to dig into these issues to resolve them to my satisfaction, but that likely won't happen until the EIS comment period has expired so I will send these comments now. If I should be able to learn more in time, I will send you additional comments.
Response As noted in Section 6.2.1, DOE's Waste Acceptance System Requirements Document contains a limitation of 13,200 canisters of defense HLW at the first repository (DOE 1994g). The EIS uses the best estimates of future HLW storage capacity for comparisons.
As noted in Section 6.2.1, the OCRWM has set aside 7,000 MTHM of the first repository capacity for disposal of DOE-owned spent nuclear fuel and HLW. This capacity allocation only addresses the thermal and radioactivity loading of the repository. There also may be practical limitations to the volume capacity if large volumes of relatively dilute HLW are to be disposed of, such as under the Ex Situ No Separations alternative. The extensive separations and no separations alternatives would contribute essentially the same to the thermal and radioactivity loading but orders of magnitude different volumes.
The Nuclear Waste Policy Act, under section 114, requires the NRC to limit the emplacement in a first repository to a quantity of spent fuel containing in excess of 70,000 MTHM or a quantity of solidified HLW resulting from the reprocessing of such a quantity of spent fuel until a second repository is in operation. For planning purposes, DOE has assumed that a standard canister of solidified HLW contains 0.5 MTHM. This is based on equating the relative fuel burnup in megawatt-days per metric ton for HLW compared to the burnup for a standard nuclear fuel. Under this assumption, the repository Advanced Conceptual Design can accommodate up to 12,900 canisters of vitrified HLW in a first repository within the statutory limit on the first repository and the allocation of 7,000 MTHM for defense SNF and HLW. Please refer to the response to Comment numbers 0004.01, 0081.02, and 0069.05 for related discussions. Because the information contained in the Draft EIS is correct, no change to the text was made.
Comment Number 0005.58
Swanson, John L.
Comment Also on page 6-19, it is said "DST waste is currently designated HLW." I thought that the DST wastes in the two NCRW tanks and in the PFP tank were considered to be TRU waste instead of HLW.
Response The sentence has been revised in the Final EIS to state that, "most DST waste is currently designated as HLW."
Comment Number 0009.13
Broderick, John J.
Comment Some of the sections on Implementability use compliance with DOE policy or Federal and State requirements after 100 years as a decision criterion. Do not do this. They will change in a hundred years. Use only the status of the waste and health effects based on scientific analysis as the decision criteria.
Response DOE and Ecology acknowledge the preference expressed in the comment and will take this preference and other public comments into consideration when making a final decision on remediating the TWRS waste. Please refer to the response to Comment number 0040.01 for a discussion of factors
influencing the evaluation of alternatives. It is agreed that Federal and State requirements may change. However, current requirements must be considered in making decisions that could incur a future commitment for additional action. Because the information contained in the Draft EIS is correct, no change to the text was made.
Comment Number 0036.17
HEAL (Exhibit)
Comment In addressing the contamination of groundwater, the EIS states, "Current drinking water quality standards do not apply beyond 1,000 years. Therefore, contaminant levels as reported beyond 1,000 years are for comparison to the current standards and are not exceedances of the standards" (p. 5-11). What does this mean? What is the purpose and intent of this passage?
Response The two sentences are incorrect and have been deleted from the Final EIS.
Comment Number 0040.04
Rogers, Gordon J.
Comment Regulatory compliance (for the In Situ Fill and Cap alternative) will of course require resolution; however, here is a perfect example of the appalling unfairness of spending huge sums of limited taxpayer funds to reduce already low risks from nuclear wastes when other risks of injury or death to workers and the public are far larger. I think Congress will see the light on this; and I want to see them tackle this issue.
Response DOE and Ecology acknowledge the preference expressed in the comment and will take this preference and other public comments into consideration when making a final decision on remediating the TWRS waste. Please refer to the response to Comment number 0040.01 for a discussion of factors influencing the evaluation of alternatives. NEPA requires that all reasonable alternatives be evaluated, regardless of compliance to existing regulations. However, DOE and Ecology intend to comply fully with all Federal, State, and local regulations and ordinances applicable to tank waste remediation. The EIS is not a cost benefit analysis. An EIS presents costs and risks in an even handed manner for the public and the decision makers to support a comparison among alternatives. Please refer to the response to Comment numbers 0072.52 and 0072.80 for related discussions.
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