CHAPTER 6
REGULATORY REQUIREMENTS
This section discusses the significant Federal, State, and local permit and approval requirements required for construction and operation of the DARHT Baseline Alternative and the other analyzed alternatives. Names of outside agencies and individuals contacted during preparation of the draft EIS are also included.
6.1 RADIOACTIVE AIR EMISSIONS
Radioactive emissions from LANL facilities are subject to the Environmental Protection Agency (EPA) National Emission Standards for Hazardous Air Pollutants at 40 CFR Part 61. In particular, Subpart A, "General Provisions," and Subpart H, "National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities," are applicable. Emissions of radionuclides to the ambient air from a DOE facility are not to exceed those amounts that would cause any member of the public to receive in any year an effective dose equivalent of 10 mrem/yr [40 CFR 61.92]. DOE submitted an application to construct the DARHT Facility, as described in the DARHT Baseline Alternative, to the Region VI Office of EPA in 1988. In a letter to DOE, dated August 2, 1988, that approved the construction, EPA determined the projected dose to the nearest offsite resident from DARHT operations and other activities conducted at LANL would be well within the 10 mrem/yr standard.
Subpart H of 40 CFR Part 61 [40 CFR 61.93] prescribes emission monitoring and test procedures to determine compliance with the 10 mrem/yr standard at DOE facilities. By letter dated June 25, 1991, DOE informed EPA that LANL was not in full compliance with Subpart H. Although DOE monitors LANL's radionuclide emissions, LANL's monitoring program does not meet the requirements of Subpart H. EPA subsequently issued a Notice of Noncompliance to DOE on November 27, 1991. Shortly thereafter DOE and EPA entered into discussions to execute a Federal Facilities Compliance Agreement to bring LANL into compliance. The EPA issued the draft agreement for public comments on June 5, 1995 [60 FR 29594]; the comment period closed on August 4, 1995. Although the Agreement has not yet been finalized, DOE has been working in the interim to bring sources which emit radionuclides into compliance. The source that emits 95 percent of the radionuclides at LANL, the Los Alamos Meson Physics Facility, is in full compliance, and DOE anticipates full compliance for all sources by the end of 1997. On September 13, 1994, the Concerned Citizens for Nuclear Safety brought a civil action against DOE under the Clean Air Act to enforce the 40 CFR Part 61 requirements at LANL. That matter is still in litigation.
6.2 NONRADIOACTIVE AIR EMISSIONS
Nonradioactive emissions from LANL facilities are subject to the regulatory requirements of the New Mexico Environment Department (NMED) established under the New Mexico Air Quality Control Act. The NMED Air Quality Control Regulation requires a permit for constructing stationary sources or modifying existing sources in the event that the source would have potential emission rates greater than 10 lb/h (4.54 kg/h) or 25 ton/yr (22.67 metric ton/yr) of any regulated air contaminant subject to a Federal or New Mexico ambient air quality standard [NMED Air Quality Control Regulations §702 Part Two.A(1)]. The PHERMEX Facility has not been subject to this requirement because its construction and operation preceded the effective date of §702 Part Two. The DARHT Baseline Alternative and the alternatives other than the No Action Alternative could be subject to the §702 Part Two permit requirement if they are classified as new stationary sources or modified stationary sources. The NMED regulations give a research facility, such as LANL, the opportunity to group its sources for the purposes of §702 at NMED's discretion [NMED Air Quality Control Regulations §702 Part One.33]. Consequently, the DARHT Facility could potentially be grouped with PHERMEX and not classified as a new stationary source. The DARHT Facility would be a "modification" to the PHERMEX Facility if 1) potential emissions of any regulated air contaminant increase in the event that DARHT became operational and PHERMEX were closed, or 2) new contaminants would be emitted by the DARHT Facility [NMED Air Quality Control Regulations §702 Part One.19].
NMED regulations also require a permit prior to the construction of new or modified sources with potential emissions of toxic air pollutants exceeding specified quantities [NMED Air Quality Control Regulations §702 Part Three.C]. The term new source is defined to be any source for which construction commenced after 1988, but not including any new source which is integrally related with and connected to the process of an existing source [NMED Air Quality Control Regulations §702 Part Three.B.(4)]. All alternatives analyzed except the No Action and PHERMEX Upgrade alternatives are, consequently, potentially subject to the permit requirement. However, the rule exempts from the permitting requirements activities such as those analyzed in this EIS (except for the Enhanced Containment Alternative) which are classified as "non-process fugitive emissions of toxic air pollutants from stationary sources" [NMED Air Quality Control Regulations §702 Part Two.C(3)(j)]. The Enhanced Containment Alternative, if implemented, would not be automatically exempt from the air toxic permit requirements since emissions from containment structures would pass through a vent and, therefore, not be classified as fugitive emissions under the definition of this term in §702 Part One.16. Appendix A to §702 Part Three of the NMED Air Quality Control Regulations contains the threshold quantity emission limits that would trigger the need for a toxic air emissions permit. The air pollutants from the alternatives under consideration with the greatest likelihood of triggering the permit requirement are uranium and lithium hydride. Appendix A specifies that a permit would be needed if emissions of natural uranium exceed 0.0133 lb/h (6 g/h) and emissions of lithium hydride exceed 0.00167 lb/h (0.76 g/h). (The DARHT Baseline Alternative and the alternatives use depleted uranium; however, the toxicity of depleted uranium is similar to natural uranium.)
If the Enhanced Containment Alternative were to be implemented, a vessel cleanout facility would be built to handle the debris resulting from cleaning the containment structure or vessels after each use. Air emissions for this facility are not currently defined. The need for an emissions permit under §702 will be evaluated when information becomes available.
NMED regulations require owners of sources with potential emissions greater than 10 ton/yr (9.1 metric tons/yr) of any regulated contaminant or 1 ton/yr (0.91 metric tons/yr) of lead to file a Notice of Intent with NMED, whether or not a permit is required, as a condition of construction [NMED Air Quality Control Regulations §703.1 Part Two.A]. Emissions from the DARHT Baseline Alternative or the other alternatives would be within these levels; consequently, a Notice of Intent would not be needed.
All of Los Alamos County has attainment status for the National Ambient Air Quality Standards listed at 40 CFR Part 50. Consequently, a written determination indicating that implementing any alternative analyzed in this EIS would conform to the New Mexico State Implementation Plan does not need to be prepared [20 New Mexico Administrative Code 2.98(2)]. Major new sources of pollutants in attainment areas are subject to prevention of significant deterioration (PSD) permit requirements. None of the alternatives analyzed would by themselves trigger the need for a PSD permit because they are not major stationary sources (as that term is defined in the NMED Air Quality Control Regulations §707.P.26) of regulated air pollutants. Projected emissions from any alternative selected for implementation would be combined with other emissions from LANL to determine whether total sitewide emissions would trigger the need for a sitewide PSD.
The DARHT Baseline Alternative and the other alternatives would not be included within the source categories subject to new source performance standards [NMED Air Quality Control Regulations §750].
Emissions of hazardous air pollutants from the DARHT Baseline Alternative or its alternatives would be less than 10 tons/yr (9.1 metric tons/yr) for a single hazardous air pollutant and 25 tons/yr (22.7 metric tons/yr) for any combination of two or more hazardous air pollutants. Consequently, the DARHT Baseline Alternative and the other alternatives would not be major sources of hazardous air pollutants subject to the requirements covering the construction or modification of major sources of hazardous air pollutants at 20 New Mexico Administrative Code 2.83.
Nonradioactive emissions from implementing the DARHT Baseline Alternative or another alternative would eventually be covered in an operating permit issued under NMED Air Quality Control Regulations §770 for the entire LANL site. DOE expects to submit an operating permit application to NMED in late 1995.
6.3 LIQUID DISCHARGES TO SURFACE WATER AND THE GROUND
The three sources of liquid discharges from the DARHT Baseline Alternative and all but the No Action Alternative are cooling tower blowdown, septic tank sanitary waste effluent, and storm water runoff. Although these sources would discharge to the ground, the discharges may enter Water Canyon, an ephemeral tributary to the Rio Grande. The State of New Mexico Environmental Improvement Division issued DOE a septic tank permit (number SF890589) for the DARHT Facility on October 30, 1989. Other septic tank permits have been issued for the Radiographic Support Laboratory and the PHERMEX Facility. EPA issued to LANL on December 29, 1994, a National Pollutant Discharge Elimination System (NPDES) permit (number NMR10A236) covering storm water discharges from construction activity at the DARHT site. A storm water pollution prevention plan for the construction activity was completed and implemented. The cooling tower blowdown from the DARHT Baseline Alternative would have an average flow of 2,000 gal/d (7,600 L/d). This discharge is incorporated into the LANL sitewide NPDES permit (permit number NM0028355) issued to DOE and LANL by EPA Region VI on June 24, 1994.
6.4 CHEMICAL AND MATERIAL STORAGE
Chemical and material storage at a LANL facility would be conducted according to DOE Orders and Manuals. In particular, DOE Orders 5480.4 (Environmental Protection, Safety, and Health Protection Standards) and 5480.7A (Fire Protection) require compliance by DOE and its contractors with National Fire Protection Association Codes and Standards, the Occupational Safety and Health Standards at 29 CFR Part 1910 established by the Occupational Safety and Health Administration (OSHA), and the DOE Explosives Safety Manual. In addition, DOE rules in 10 CFR Part 835 establish radiation protection standards and program requirements to protect occupational workers at DOE facilities.
6.5 WASTE MANAGEMENT
If implemented, the DARHT Baseline Alternative or the other alternatives would produce five categories of regulated waste: solid waste, hazardous waste, mixed radioactive and hazardous waste (mixed waste), low-level radioactive waste, and TRU waste.
Solid waste that is not classified under Subtitle C of the Resource Conservation and Recovery Act (RCRA) as a hazardous waste would be disposed at the LANL Area J landfill in TA-54 or sent offsite to an approved disposal facility. The Area J landfill is operated according to the requirements in Subtitle D of RCRA, the New Mexico Solid Waste Act, and regulations issued under each Act.
Waste that is classified as hazardous waste under Subtitle C of RCRA would be taken to TA-54 for temporary storage. Ultimate treatment and disposal would occur at RCRA interim status or permitted facilities at LANL or offsite. Hazardous waste storage areas in TA-54 are operated according to the requirements of Subtitle C of RCRA, the New Mexico Hazardous Waste Act, and regulations issued under each Act.
Mixed waste would be treated and disposed according to the site treatment plan for LANL developed in response to the Federal Facility Compliance Act [42 U.S.C. 6939c(b)]. The availability of proposed site treatment plans for various DOE sites, including LANL, was announced April 5, 1995 [60 FR 17346].
Low-level radioactive waste would be disposed at the LANL low-level radioactive waste disposal site in TA-54. This site is operated according to the requirements in chapter III of DOE Order 5820.2A (Radioactive Waste Management).
Materials required to be disposed as TRU waste would be size reduced, as appropriate, to minimize volumes of waste sent to the Waste Isolation Pilot Plant (WIPP). TRU waste would be stored at LANL Area G in TA-54 prior to packaging and certification for shipment to the WIPP.
6.6 NOISE
If implemented, the DARHT Baseline Alternative or the other alternatives would create substantial noise during those times when explosions occur as discussed in section 5.2.3.
Federal efforts to regulate noise largely derive from the Noise Control Act of 1972 [42 U.S.C. 4901-4918]. Under the Act, Federal agencies such as DOE are to carry out their programs to further the Act's purpose of promoting an environment for all Americans that is free from noise that jeopardizes health or welfare [42 U.S.C. 4903(a)]. DOE seeks to meet this obligation by placing high explosives test areas, such as PHERMEX or the DARHT Facility, away from populated areas, localizing the noise impacts to the extent practicable, and conducting operations involving explosives during hours when most people within hearing distance are not sleeping. Beyond the general obligation in the Noise Control Act, no specific requirements in the Noise Control Act or in any regulations implemented under the Act prohibit or regulate the activities conducted at the DARHT Baseline Alternative and its alternatives [42 U.S.C. 4309].
OSHA has established regulations to regulate the noise exposure of occupational workers [29 CFR 1910.95]. DOE Order 5480.4 specifies that DOE contractor operations, such as those to be conducted under the DARHT Baseline Alternative or an alternative, are to meet all OSHA standards in 29 CFR Part 1910.
The Noise Control Act requires Federal agencies to meet State and local requirements relating to the abatement of noise [42 U.S.C. 4903(b)]. No State requirements would prohibit or regulate the noise associated with operation of the DARHT Baseline Alternative or the other alternatives. The Los Alamos County Code does have noise restrictions. It is a violation of the code to cause noise levels exceeding 65 dBA in residential areas of the county between 7 a.m. and 9 p.m. and 53 dBA between 9 p.m. and 7 a.m. (Los Alamos County Code, Ch. 8.28.030). Between 7 a.m. and 9 p.m., the permissible noise level can be increased to 75 dBA in residential areas provided the noise is limited to 10 minutes in any 1 hour. Persons who cannot meet the preceding requirements can request a permit from the county for noise-generating activities of a temporary nature [Los Alamos County Code, Ch. 8.28.060(d)].
6.7 FLOODPLAINS AND WETLANDS
DOE's policy is to avoid, to the extent possible, the long- and short-term adverse impacts associated with the destruction of wetlands and the occupancy and modification of floodplains and wetlands [10 CFR 1022.3]. Executive Order 11988, issued by President Carter in 1977, requires Federal agencies to avoid direct or indirect support of floodplain development when there is a practicable alternative. Executive Order 11990, also issued by President Carter in 1977, directs Federal agencies to minimize the detrimental impact of their actions on wetland areas and avoid new construction on wetlands unless no practicable alternative exists. DOE has determined no floodplains or wetlands are present on land which would be affected by the DARHT Baseline Alternative or the other alternatives.
6.8 THREATENED AND ENDANGERED SPECIES
AND MIGRATORY BIRDS
The Endangered Species Act of 1973 requires that Federal agencies not take any action that is likely to jeopardize the continued existence of any endangered species or threatened species or result in destruction or adverse modification of their habitat [16 U.S.C. 1536]. Unless otherwise permitted by regulation, the Migratory Bird Treaty Act makes it unlawful to pursue, hunt, take, capture, kill (or to attempt any of the preceding) any migratory bird or nest or eggs of such bird [16 U.S.C. 703]. The Bald and Golden Eagle Protection Act [16 U.S.C. 668] protects bald and golden eagles. The Fish and Wildlife Coordination Act [16 U.S.C. 661] provides other requirements for protecting wildlife. DOE has reviewed the preceding authorities and has determined that construction and operation of the DARHT Baseline Alternative or another alternative would be consistent with the authorities through implementation of appropriate mitigating measures.
DOE has determined, and the U.S. Fish and Wildlife Service (USFWS) has concurred, that the preferred alternative analyzed in the EIS will not adversely affect any threatened or endangered species or their habitat. DOE and the USFWS have completed informal consultation under Section 7 of the Endangered Species Act; see appendix K. Mitigation measures have been negotiated and are discussed in section 5.11 and appendix K.
6.9 NATIVE AMERICAN, ARCHEOLOGICAL,
AND HISTORIC PRESERVATION
DOE's American Indian Tribal Government Policy is in DOE Order 1230.2, issued April 8, 1992. DOE commits in the Order to consult with Tribal governments to assure that Tribal rights and concerns are considered prior to DOE taking actions that may affect Tribes. DOE also has committed to avoiding unnecessary interference with traditional Tribal religious practices.
The August 11, 1978, American Indian Religious Freedom Act (AIRFA) [42 U.S.C. 1996] establishes that it is United States policy to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise their traditional religions, including access to sites, use and possession of sacred objects, and the freedom to worship through ceremonies and traditional rites. The Native American Graves Protection and Repatriation Act provides that Tribal descendants shall own Native American human remains and cultural items discovered on Federal lands after November 16, 1990 [25 U.S.C. 3002]. When items are discovered during an activity on Federal lands, the activity is to cease, and appropriate Tribal governments are to be notified. Work on the activity can resume 30 days after receipt of certification that notice has been received by the Tribal governments.
During the NEPA process for DARHT, DOE has consulted with local American Indian Tribes regarding sites in the vicinity of DARHT and PHERMEX. These consultations are summarized in section 4.6.3, and they are expected to continue in a similar manner through the life of testing activities at DARHT and PHERMEX.
During May, June, and July of 1995, DOE consulted with representatives of the four Accord Tribes, Cochiti, Jemez, Santa Clara and San Ildefonso Pueblos, which have identified themselves as the Tribes most affected by activities at LANL. Meetings included discussions concerning AIRFA matters, on a government-to-government basis following the publication of the draft EIS. Based on general and specific comments provided by Tribal government representatives, DOE has made changes in the content of the final EIS with respect to traditional cultural properties and mitigation measures to protect cultural resource sites. DOE will continue regular consultations with Tribal governments throughout the life of the DARHT project to ensure protection of traditional properties.
The Archaeological Resources Preservation Act prohibits the excavation of material remains of past human life that have archeological interest and are at least 100 years old without a permit from the appropriate Federal land manager or an exemption [16 U.S.C. 470bb, 470ee]. The Federal land manager for LANL is DOE.
The National Historic Preservation Act authorizes the Secretary of the Interior to maintain a National Register of Historic Places [16 U.S.C. 470a(a)(1)]. Federal agencies cannot approve projects that would affect properties listed, or eligible for listing, on the Register without considering the effect on the listed or eligible properties [16 U.S.C. 470f]. For proposed actions at LANL, DOE consults with the New Mexico State Historic Preservation Office and the Advisory Council on Historic Preservation, as necessary. DOE consulted with these offices and with the San Ildefonso Pueblo prior to initiating construction at the DARHT site, and employed the mitigation measures agreed to at that time to protect archeological sites.
DOE has reviewed the preceding authorities and has determined that construction and operation of the DARHT Baseline Alternative or another alternative would be consistent with the authorities through implementation of appropriate mitigating measures.
6.10 SITING AND PLANNING
All of the alternatives under consideration, including the No Action Alternative, involve land in TA-15 at LANL. The LANL Site Development Plan provides that existing and planned land uses for TA-15 are for high explosives research, development, and testing (LANL 1994). All alternatives analyzed in the EIS are consistent with the planned land uses for TA-15.
6.11 OTHER AGENCIES AND INDIVIDUALS CONSULTED
In addition to the agencies discussed above, during the preparation of the draft EIS the following outside governmental agencies and individuals were consulted:
John L. Temple, Assistant Director, Bureau of Business and Economic Research, University of New Mexico, 1920 Lomas NE, Albuquerque, NM 87131-6021 (505-277-2216).
Karma A. Shore, Economist, Bureau of Business and Economic Research Data Bank, University of New Mexico, 1920 Lomas NE, Albuquerque, NM 87131-6021 (505-277-8300).
Gerry Bradley, Labor Economist Supervisor, New Mexico Department of Labor, Economic Research and Analysis, P.O. Box 1928, Albuquerque, NM 87103 (505-841-8645).
Jim Greenwood, Los Alamos Economic Development Corporation, 901 18th St., Los Alamos, NM 87544 (505-662-0001).
6.12 REFERENCE CITED IN CHAPTER 6
LANL (Los Alamos National Laboratory), 1994, Environmental Surveillance at Los Alamos During 1992, LA-12764-ENV, Los Alamos, New Mexico.
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