ML20043C696
| ML20043C696 | |
| Person / Time | |
|---|---|
| Issue date: | 05/29/1990 |
| From: | Dennise Orlando NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Boyle R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| References | |
| REF-PROJ-M-32 NUDOCS 9006060071 | |
| Download: ML20043C696 (60) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION W A6HING TON, D. C,20666 9,.... f MAY t 91990 MEMORANDUM FOR:
Regis R.Boyle, Section Leader Regulatory Branch Division of Low-Level Waste l' anagen.ent and Deconmissioning, NHSS FROM:
Dominick A. Orlando, Project l'anager Regulatory Branch Division of Low-Level Waste Management and Deconmissioning, la!SS SUCCECT:
TRIP REPORT FOR THE WEST VALLEY PROJECT l<EETING MAY 10, 1990 PLACE:
Federal Building,_ New York City, New York, lith floor conference room TIME:
10:30 a.m. - 1:30 p.m.
ATTENDEES:
NRC EPA DOE R.D. Hurt J.Gorman W.Bixby L. Smith D.A.Orlando C.Howard B.Bowhan D.Rasch J. Wolf W. Sawyer P.Hinran C.Blake M. Stahr C. Ljungberg V. Franklin T.M intosh WVNS NYSDEC NYSERDA G. Baker J. Jones H. Jack R. Carter T.Diuilio D. Miller J.Knabenschuh K. Johnson P.Gitlin S.Quine D. Christian DISCUSSION:
The meeting o)ened with Mr. Bixby introducing the attendees and stating t1at the project was " ready to start".
By this I believe he meant that the preliniinary work had been taken care of and the paperwork was in order.
He indicated that the project had a high priority with the DOE and would be a method ay which the regulatory agencies cceld regain any lost credibility with the public.
He stated that the DOE was interested in continuing proactive discussions with all involved parties.
I t em,ese uJS.
POR ROJ
_ppc M-32 l
J
4, t i.e Regis R. Boyle.
The first item discussed was the draft FFCA (Federal facility Compliance Agreement) or FSFCA (Federal and Stutt.
Facility Compliance Agreement) and the RCP.A 3008.h Interim Status Corrective Acticn Order.
The DOE combined these two documents as they felt this was the best way to handle the issue (a copy of the docurer.t was distributed end is attached). NYSERDA indicated that the document was not acceptable in the form in which it was presented. The EPA indicated that they would not accept any documents unless they were in the form that EPA required, i.e., 6 separate FFCA or FSFCA and a 3008.h order.
EPA also indicated that they were very concerner' about the approaching 6/6/90 deadline for submission of these two documents. This discussion continued and the outcome was that EPA will review the document and DOE will prepare a separate 3008.h order, in the event the document is not acceptable to EPA.
DOE indicated that they would want official sign-off by all parties.
The DOE indicated that a conference call wculd be set up on 5/17/90 for the legal representatives of each agency to discuss the document.
DOE indicated that they would provide administrative support to for the document finalization and preparation of meeting minutes.
EPA indicated that they would have to consider the offer.
The next item was a presentation by G. Baker, Ph.D., (DOE) of the technical issues and plans for the project. An overview folder was distributed and is attached.
The -
issues presented were favorably acce)ted by the attendees, and I gathered by the way in which tie attendees reacted to the presentation that these items had been discussed at length and agreed upon in the past.
The EPA re-stated that they were mostly interested in seeing the paperwork associatedwiththeplans(FFCA,FSFCA,and3008.horder).
I am not familiar with the FFCA document but I will l
investigate and get back to you on them. The technical issues and plans did not seem to be unreasonable and I did l
not get the impression that their was any concern by the attendees.
The document provided by Davis Hurt (Executive Agreement Information and Technical Discussion) pliance Sunnary Part A Permit and Federal Facilities Com contains some statements that I think we need to take a look at, j
though.
l The item listed on the agenda indicating that a discussion concerning the 3008.h order was not performed as the EPA indicated that they had nothing new to add to what I presume have been on-going discussions about this matter.
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L The DOE indicated they would like to see any public docunents concerning the project written in such a way that the positive developments are emphasized.
They also indicated that they would like to see evidence of progress tcwards full conipliance as an acceptable substitute for full compliance now.
The next item discussed was the division of financial responsibility for the project and how the different participants would interact.
The outcome was that DOE houlc work with NYSERDA and worry about the bills later.
Sul MARY:
The EPA seemed more interested in getting the paperwork, on the proper form, than any technical issues.
They were very adamant about this item.
The DOE seemed ir.cerested in getting.
the EPA to take a look at their combined Jocument with an open mind.
NYSDEC did not have any conments during the meeting. NYSERDA seemed to want the DOE to come up with a c:ocument to cover the EPA's questions and a determination of who would be responsible for the different aspects of the program.
Original signed by Dominick A. Orlando, Project Manager Regulatory Branch Division of Low-Level Waste Management and Deconnissioning, NHSS
Enclosure:
As stated cc:
J. Austin L
Distribution: *CentraluF.ilo b a NMS$ r/f LLRB r/f N0rlando PDR YES Y
NO Category:
Proprietary or CF Only
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ACNW YES NF 4&
i SUBJECT ABSTRACT:
TRIP REPORT FOR THE WEST VALLEY PROJECT MEETING l
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l OFC :LLRB i/' :LLRB NAME:Ny do/es :RBoyl DATE://4/90
- i/g/90 OFFICIAL RTCTAD COPY
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i May 10, 1990 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION II, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION l
AND THE UNITED STATES DEPARTMENT OF ENERGY AND THE
' VEST VALLEY NUCLEAR SERVICES COMPANY, INC.
(INCLUDING SUCCESSOR DOE MANAGEMENT AND OPERATING CONTRACTOR)
AND THE I
NEW YORK STATE ENERGY RESEARCll AND DEVELOPMENT AUTHORITY AND THE i
UNITED STATES NUCLEAR REGUIATORY COMMISSION j
Ill Tile MATTER OF:
)
)
The West Valley Demonstration
)
FEDERAL AND STATE FACILITIES
)
COMPLIANCE AGREEMENT AND Proj ect; and
)
CONSENT ORDER
)
i The Western New York Nuclear
)
)
Service Center
)
)
Notes:
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TABLE OF CONTENTS Page 1.0 PARTIES............................................................
1
...... 2 2.0 PURPOSE OF THE AGREEMENT...................................
.................................. 3 1
3.0 JURISDICTION.
4.0 DEFINITIONS..................
.....................................,4
[
.................................... 8 5.0 SC0PE.........................
6.0 STATEMENT OF FACTS AND CONCLUSI0HS OF LAW.........................
10 7.0 PROJECT COMPL'ANCE REQUIREMENTS...................................
19 i
8,0 D E S I GN AT I ON O F LEAD R EGU LATORY AG EN CY............................. 2 0 9.0 RESOLUTION OF DISPUTES............................................
21 10.0 EN FOR C EM EN T....................................................... 2 5 11.0 REPORTI NG AND RECORD KEEPING...................................... 2 6 17.0 EXTENSIONS........................................................
26 16.0 COM PLI AN C E V I T H LAW S.............................................. 3 0 l' 0 FORC E KAJ EURE.................................................... 30 15,0 MODIFICATION OF AGREEMENT..........
............................. 32 16,0 DESIGNATED PROJECT COORDINATORS.................................. 32 17.0 COVENANT NOT TO SUE / RESERVATION OF RIGHTS......................... 33 18.0 AD D I T I ON AL W 0RK................................................... 3 5
.................................. 36 19.0 FUNDING........................
20.0 TERMINATION AND SATISFACTION......................................
37 21.0 EFFECTIVE DATE................................................... 38 22.0 NRC REVIEW AND CONSULTATION.......................................
38 23,0 REVIEW AND C0KMENT PROCESS FOR SUBMITTED DOCUMENTS................
40 i
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., e 1.0 PARTIES 1.1 The Parties to this Federal and State facilities Compliance Agreement and Consent Order
(" Agreement") are the United States Environnental Protection Agency (" EPA"), Region II, the State of New York (" State") through its Department of Environmental Conservation
("DEC"),
the United States Department of Energy
(" DOE * ), the New York State Energy Research and Development Authority ("NYSERDA"),
and the West Valley Nuclear Services Co., Inc. (VVNS).
The United States Nuclear Regulatory Commission (NRC) is a signator in the limited capacity set forth in Article 22.0, but the NRC is not a Party to nor bound by any other portion of this Agreement.
1.2 The terms of this Agreement shall apply to and be binding upon the Parties.
1.3 DOE, WVNS and NYSERDA shall take all appropriate measures to ensure that their respective employees, contractors, agents or assignees performing work under this Agreement act in a manner consistent with the terms of this Agreement.
This section shall not be construed as an Agreement by the Parties to indemnify each other or any third Party.
1.4 Reference in this Agreement to VVNS shall also constitute reference to any successor DOE Management and Operations contractor performing work on DOE's behalf at the West Valley Demonstration Project. Upon termination of the WVNS contract, DOE shall give written notice to the other Parties that as of the termination date, WVNS is no longer a Party to this Agreement and will designate the substitute contractor or contractors if any.
At the time of termination of the WVNS contract, or, if WVHS obligations have been terminated by operation of this Agreement, or otherwise consistent with applicable l
- law, the Parties agree that DOE will require the successor l
contractor to accept transfer of WVNS responsibilities pursuant to ROUCH DRAFT Preliminary, Discussion Only 1
DRAFT this Agreement or DOE shall be deemed to have accepted transfer of responsibility for such future performance.
Upon such termination, WNS will be relieved of any further obligations for performance under this Agreement, including its responsibilities under DOE's Action Plan prepared pursuant to Article 7.0 of this Agreement.
2.0 PURPOSE OF THE AGREEMENT 2.1 This Agreement is entered into by the parties to provide a process for implementing compliance plans and schedules set forth in and B of this Agreement (hereinafter the " Action Appendices 4
Plans"); and to address the management of radioactive mixed waste at the Vestern New York Nuclear Service Center (" Center") consistent with the requirements of the Resource ConsetNation and Recovery Act, the Atomic Energy Act of 1954, as amended, (AEA), the Vest Valley Demonstration Project Act (WDP Act) and the National Environmental Policy Act (NEPA) or, as appropriate, the New York State Environmental Quality Review Act. (SEQRA) 2.2 The purpose of this Agreement is to specify those terms and conditions under which the Parties shall accomplish the following mutual objectives:
i l
2.2.1 Define the regulatory framework for all present and future activities through site closure so as to resolve potential inconsistencies between regulations involving hazardous and radioactive waste management, assure regulatory compliance, or equivalency, and provide for dispute resolution.
2.2.2 Specify an appropriate review process and schedule to assure that the current WDP radioactive mixed waste management activities are carried out in a manner consistent with, or equivalenet to RCRA and the New York State Industrial Hazardous Waste Management Act (IHVMA) and in a manner which furthers the WDP mission of solidification of the high level radioactive waste (HLW).
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- Identify, store, treat and minimize restrictive wastes restricted from land disposal.
l 2.2.4 Achieve compliance or demonstrate equivalency with requirements for interim status treatment and storage facilities.
2.2.5 Undertake comprehensive site characterization to determine the need for corrective action, if any, consistent with the WDP Act, 2.2.6 Implement environmental compliance activities or corrective action.
If any consistent with NEPA and similar New York State requirements.
{
2.2.7 Facilitate cooperation and exchange of information between all Parties to the Agreement.
2.2.8 Allow continued storage of restricted wastes at the Center until on site treatment or offsite disposal facilities are operational or until treatment can be secured.
2.3 EPA and DEC have determined that this Agreement, including the l
requireaants contained herein, constitutes a " plan" as described in Section 1 601 of Executive Order 12088, to address compliance issues at the Center regarding hazardous waste requirements found at 40 CFR l
Parts 268 to 270.
l 3.0 JURISDICTION 3.1 EPA enters into this Agreement pursuant to the Solid Wasta Disposal Acc, commonly referred to as the Resource Conservation and Recovery l
Act, as amended by the Hazardous and Solid Waste Amendments of 1984
(" RCRA"), 42 U.S.C.
6901, el see, including without limitation sections 3004(u) and (v) 3005(e), 3008(h) and 3013.
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.*.c 3.2 DEC enters into this Agreement pursuant to the New York State Industrial Hazardous Waste Management Act, (hereinafter referred to as "IHVMA") E.C.L. Article 27 Title 9, and E.C.L 3 0301, and the regulations promulgated thereunder.
3.3 DOE has entered into this Agreement under authority of the West Valley Demonstration Project Act, the National Environmental Policy Act (NEPA), the Atomic Energy Act of 1954 (AEA), as amended, and Executive Order 12088.
3.4 With respect to DOE's management of radioactive mixed waste, nothing in this Agreement shall be construed to require ~ DOE to take any action pursuant to RCRA which is inconsistent with the requirements of the Atomic Energy Act or the West Valley Denonstration Project Act.
4.0 D,EFINITIONS 4.1 Except as provided below or otherwise explicitly stated herein, the definitions provided in RCRA shall control the meaning of the terms used in this Agreement.
4.1.1 Additional Work shall mean any work agreed upon by the Parties under Article 18 (Additional Work) to this Agreement.
4.1.2 Agreement shall mean this Federal and State Facilities Compilac.:e Agreement and Consent
- Order, including all Appendices attached hereto.
4.1.3 Atomic Energy Act (AEAl shall mean the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011, et seq.
4.1.4 Authorized Representatives shall mean a Party's employees, I
agents, successors, assigns, contractors or subcontractors, i
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f DRAFT including Management and Operating contractors, acting in any capacity (including an advisory capacity) consistently with their contracts, when so designated by that Party for a particular purpose or purposes.
4.1.5 center shall mean the Vestern New York Nuclear Service Center referred to in the Vest Valley Demonstration Project Act as and further described in the " Cooperative Agreement" between DOE and NYSERDA, 4.1.6 Cooperative Agreement shall mean the Cooperative Agreement entered into between NYSERDA and DOE effective October 1, 1980, as amended September 18, 1981.
4.1,7 Days shall mean calendar days, unless business days are specified.
Any submittal or written statement of dispute that under the terms of this Agreement would be due on a Saturday, Sunday, or holiday shall be due on the following business day.
4.1,8 DEC shall mean the New York State Department of Environmental Conservation and its authorized representatives, 4.1.9 DOE shall mean the United States Department of Energy and its authorized representatives, exclusive of WNS, but including the Idaho Operations Office and the West Valley Project Office.
4.1.10 EPA shall mean the United States Environmental Protection Agency and its authorized representatives, 4.1.11 Force Maieure shall have the meaning as set forth in Article 14,0 (Force Majeure),
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.e 4.1.12 Ha:ardous constituent (s) shall mean those substances listed in Appendix VIII to 40 CPR Part 261, and in 6 NYCRR 371, Appendix 23, 4.1.13 Hazardous Vaste(s) shall have the meaning set forth by Section 1004($) of RCRA, 42 U.S.C.
Section 6903($), 40 CFR Parts 260 and 261.
4.1.14 Industrial Hazardous Waste Management Act (IHVMA) shall mean the New York State Industrial Hazardous Vaste Management Act.
E.C.L.
Section 27 0900, e.t.
seq.,
a s.
implementated under 6 NYCRR Parts 370 through 373.
4.1.15 Manacement and operating contractor shall mean a contractor with the federal government which contracts for the operation, maintenance, or support, on its behalf, of a federal government owned or controlled research, development, demonstration, special production or testing estab116hment wholly or principally devoted to one or more major programs of the contracting federal agency.
4.1.16 NEPA shall mean the National Environmental Policy Act of 1969 (P.L. 91 190), as amended by P.L. 94 83 (Au6ust 9,1975), 42 U.S.C. Sec. 4321,,e.t. seq.
l 4.1.17 NRC shall mean the U. S. Nuclear Regulatory Commission and its authorized representatives.
4.1.18 Parties shall mean all Parties who are signatories to this Agreement, excluding the NRC.
4.1.19 Restricted Vastes shall mean the hazardous waste component of radioactive mixed wastes that are restricted from storage or disposal pursuant co the amendments to Section 3004 of RCRA i
by the Hazardous and Solid Vaste Amendments of 1984 I
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.. s 4.1.20 Proieet Coordinator (s) shall mean the representative (s) designated by the Parties to coordinate, monitor or direct actions required by this Agreement at the Site.
4.1.21 Radioactive Mixed Vaste(RMW) or Mixed Waste shall mean vaste that contains both hazardous components subject to RCRA and radioactive components subject to the Atomic Energy Act of 1954 and as further defined in DOE's interpretive rule for by product material, 10 CTR 962, (52 TR 15937), May 1, 1987.
4.1.22 RCRA shall mean the Resource Conservation and Recovery Act, Pub.
L.
98 616, 42 U.S.C.
6901, el seg, as amended by the Hazardous and Solid Vaste Amendsants of 1984, i
4.1.23 SEQRA sha'11 mean the New York State Environmental Qutlity Review Act, Environmental Conservation Law, Article 8. Title f
l 0101, el sea.
4.1.24 Solid Vaste(s) shall have the meaning set forth in Section 1004(2) of RCRA, 42 U.S.C.
Section 6903(27), and 40 C.F.R.
Part 261, i
4.1.25 Timetables and Deadlines shall mean schedules as well as that work and those actions that are to be completed and performed in conjunction with such schedules, including performances of actions established pursuant to Articles 7.0 (Compliance Requirements), 9.0 (Resolution of Disputes), 11.0 (Reporting) l and 18.0 (Additional Work) of this Agreement.
4.1.26 VVDP shall mean the West Valley Demonstration Project as authorized by the WDP Acc.
4.1.27 WNS shall mean West Valley Nuclear Services Co., Inc., DOE's management and operating contractor at the time of the ROUCH DRArt Preliminary, Discussion Only 7
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,o effective date of this Agreement and any successor DOE Management and Operating contract)r for the WDP.
4.1.28 WNS Contract sh.0 1 mean the Management and Operating Contract between DOE and WNS for the West Valley Demonstration
- Project, Contract No, DE.AC07 81NE44139, effective on August 26, 1981.
4.1.29 WDP Act shall mean the West Valley Demonstration Project Act of 1980, Public 1.u 96 368.
5,0 SCOPE 5.1 Except as specifically set forth herein, this Agreement shall apply to all Radioactive Mixed Waste units located on the Center; to the RCRA Land Disposal Restrictions pertaining to past, ongoing and future ~
collection,
- storage, and treatment and disposal of restrictive waste collected, or treated at the Center.
The storage j
restrictions of LDR requirements apply only to those restrictive wastes placed in RMW storage units or disposal facilities after the effective dates of the LDR prohibitions.
5.2 The Parties acknowledge that this Agreement is not intended to implement remedial actions authorized pursuant to the State Inactive Hazardous Waste Disposal Sites Act, E.C.L. Article 27. Title 13 or the Comprehensive Environmental
- Response, Compensation, and Liability Act (CERCLA),
Corrective action, to the extent required, shall be addressed as specified in Appendices A and B of this Agreement,- the DOE Five Year Plan, any permits to be issued by the state and/or EPA, or applicable and appropriate orders, or in any subsequent modifications to this Agreement issued pursuant to RCRA, or the New York State IHWMA, or combination of the foregoing.
5.3 Nothing in this Agreement shall require DOE, WNS or NYSERDA to take any action or exercise any discretion inconsictent with the scope of l
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.o o their respective responsibilities and obligations under either the i
implemented by the Cooperative Agreement or the WNS WDP Act as Contract.
The Parties acknowledge that the conditions giving rise they may relate to either the to the need for this Agreement as State Disposal Area, which is under NYSERDA's exclusive control, or to WDP premises and f acilities, which are under DOE's control, are appropriately addressed in the Action Plans (Appendices A & B).
Under no circumstances shall any Party attempt to assess liability inconsistent with the WDP Act for corrective action responsibilities against DOE or WNS resulting from any conditions, acts or omissions occurring or existing prior to February 26, 1982, the date DOE took physical possession of the WDP premises and facilities.
5,4 The Parties acknowledge the existence of the WNS contract, the Memorandum of UnderstandinB between DOE and the Nuclear Regulatory Commission (NRC) and the Cooperative Agreement between DOE and NYSERDA, and agree that nothing in this Agreement shall affect or operate to modify the above contractual or cooperative arrangements, including but not limited to.
DOE's authority to supervise and direct its Management and Operating contractor's performance.
In no event shall WNS be required to independently fund any work to 5.5 be undertaken pursuant to the Action Plans or incur any liability other than that contemplated by the WNS Contract or as otherwise imposed by law.
5.6 DOE, WNS or NYSERDA do not waive any defenses DOE, WNS or NYSERDA may have or wish to pursue in any action outside the terms of this Agreement with the exception that DOE and NYSERDA agree not to contest EPA's or DEC's jurisdiction to execute this Agreement, 5,7 Nothing in this Agreement shall constitute an admission or evidence of an admission by any Party, except in an action or preceeding by a Party to enforce the terms of this Agreement, ROUGH DRAFT - Preliminary, Discussion Only 9
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6.0 STATEMENT OF FACTS AND CONCLUSIONS OF 1AV 6.1, History of the Vestern New York Nuclear Service Center 6.1.1 In 1962 Nuclear Fuel Services, Inc.
(NTS) entered into Agreements with the Atomic Energy Co'nmission and New York State to construct the first commercial reprocessing plant of nuclear fuel in the United States.
The NFS reprocessing f acility was located on state owned property known aa the Western New York Nuclear Service Center (Center).
A provisional operating license for the Center was issued on April 19, 1966.
6.1.2 From 1966 to 1972, the Western New York Nuclear Service Center was the location of the only commercial nuclear ft.el reprocessing facility ever operated in the United States. As a result of this operation, nearly 600,000 gallons of high level liquid nuclear waste, a by product of reprocessing, was produced and remained in underground storage tanks at the facility.
6.1.3 In 1972, the NFS Reprocessing plant was shut down for modifications to increase capacity.
6.1.4 In 1976, NFS withdrew from the reprocessing business.
6.2 The Vest Valley Demonstration Proiect Act and DOE's Involvement 6,2.1 In 1980, Congress passed the WDP Act, Public Law 96 368, directing the U.S. Department of Energy (DOE) in cooperation with NYSERDA to carry out a high level radioactive waste i
management demonstration project at the Center for the l
of demonstrating solidification techniques which can purpose be used for preparing high level radioactive waste for ultimate disposal.
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DRAFT 6.2.2 Under the WDP Act, DOE is mandated to solidify the liquid high level radioactive waste in a
form suitable for transportation and eventual disposal at a federal high level radioactive waste repository; develop containers suitable for permanent disposal of the high level radioactive waste presently located at the Center; as soon as feasible transport the solidified high level waste to a federal repository for permanent disposal; dispose of low level and transuranic waste produced by WDP activities; and decont.aminate and decommission the tanks in which the high level waste was stored and facilities, hardware and material used in the WDP.
6.2.3 Pursuant to Section 2(c) of the kNDP Act. DOE entered into a Memorandum of Understanding with the Nuclear Regulatory Commission (NRC) concerning activities to be conducted at the Center.
,The full text of this Memorandum of Understanding, effective September 27, 1981, is published in the Federal Register at 46 FR 56960 (November 19, 1981).
This Memorandum of Understanding established procedures for review and consultation by the NRC with respect to activities at the Center under the WDP Act.
6.2.4 Effective October 1, 1980, DOE, on behalf of the United States of America, and NYSERDA, on behalf of the State of New York, entered into a Cooperative Agreement as required under Section 2(b)(4) of the WDP Act.
The express purpose of the Cooperative Agreement is to establish a cooperative framework for the implementation of the ' WDP by DOE and NYSERDA.
6.2.5 On September 30, 1981, the NRC issued an amendment to the facility license (Change No. 31 to facility license No. CSF 1) which permitted transfer of the facility to the ROUGH DRAFT Preliminary, Discussion Only 11 m.
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DRAFT DOE for the purpose of carrying out the WDP (46 FR 49237).
On February 18, 1982, the NRC published notice in the Federal Register (47 FR 7352) that it had issued an Amendment to the Itcense held jointly by NFS and NYSERDA, Under this amendment NFS authority and responsibility under the license was terminated.
This action was subject to the following three conditions, all of which have been subsequently satisfied:
1.
Acceptance of surrender of the facility by NYSERDA from NFS; 2.
DOE's assumption of exclusive possession of the facility; and 3.
Settlement of pending litigation in the U.S.
District Court for the Vestern District of New York.
NYSEADA rem.t ins the exclusive licensee but NYSERDA has no authority to operate the facilities on WDP premises or on the Center under the license.
NYSERDA's authority for activities with regard to the State Licensed Disposal Area (SDA) is separate from this license.
6.2.6 On August 24, 1981, the West Valley Nuclear Services Company, Inc.,
'WNS ) was selected as DOE's Management and Operating Contractor for the WDP.
WNS is obligated under this contract (Contract No. DE AC07 81NE44137) to manage, operate, and maintain the WDP facilities on behalf of DOE upon the terms and conditions of the contract "in accordance with such direction and instructions not inconsistent with this contract which the (DOE]
Contracting Officer may deem necessary to give [WNS) from time to time."
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DRAFT 6.2.7 On February 26, 1982 the DOE and WNS assum:d physical
.s possession and control of WDP facilities and premises without the transfer of title from the State of New York.
NYSERDA has jurisdiction over the Center for the State of New York under Public Authorities 1.aw Section 1856, including WDP facilities and premises, and holds title to the Center in the name of the state.
6.2.8 Pursuant to Section 2(b)(4)(A) of the LTDP
- Act, as ittplemented by Section 4.03 of the Cooperative Agreement, DOE is required to surrender to NYSERDA premises, facilities, material and hardware used to carry out the WDP.
6.3 The National Environmental Policy Act and the State Environmental Quality Review Act 6.3.1 The requirements of the National Environmental Policy Act.
(NEPA) apply to the DOE activities at the WDP.
They are reinforced and given a further site specific perspective by virtue of several additional factors, including, but not limited to, the following:
i 6.3.1.1 The West Valley Demonstration Project Act reiterates the requirement to undertake environmental impact analysis (Section 2(L)(3)(D)).
6.3.1.2 DOE /EIS 0081, " Final Environmental Impact Statement Long Term Management of Liquid High Level Radioactive Waste Stored at the Western New York Nuclear Service Center," dated June 1982 which provided the NEPA review for initial WDP HLW Solidification activities committed the-DOE to follow on environmental reviews, as appropriate, for low level and transuranic waste disposal and final decontamination and decommissioning of the tanks in ROUGH DRAFT Preliminary, Discussion Only 13
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,a which the high level waste was stored and the facilities, material and hardware used during the i
Proj ec t.
6.3.1.3 New York State has its own State Environmental
{
-Quality Review Act (SEQRA) which requires state agencies to evaluate their proposed actions in much the same way as NEPA applies to federal agencies.
6.3.1.4 In the Cooperative Agreement, Section 6.03, DOE and NYSERDA agreed that their respective actior.s under the Cooperative Agreement would only be taken in accordance with the applicable legal requirements of NEPA, and SEQRA, respectively, 6.3.1.5 On December 27, 1987, the United States District Court for the Vestern District of New York approved Stipulation of Compromise Settlement, Civil a
No. 86 1052 C, in which DOE agreed to specified conditions regarding NEPA review for disposal of WDP produced radioactive waste not classified as high level waste.
6.3.1.6 On December 30, 1988, the DOE published a Notice of Intent to prepare an Environmental Impact Statement jointly with NYSERDA for " Completion of the West Valley Demonstration Project Act.vities and Closure
?
of the Western New York Nuclear Service Center." (53 FR 53052)
The EIS is to 1.rovide environmental information for consideration in federal and NYSERDA decision making relat d to West Valley Demonstration Project completion activities by DOE and the state, and the closure of the Western New York Nuclear Service Center by NYSERDA.
NYSERDA subsequently published a similar notice.
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DRAFT 6.4 The Role of NYSERDA 6.4.1 NYSERDA is responsible for maintaining the inactive State.
1 licensed Disposal Area (SDA) adjacent to VVDP premises.
Pursuant to Section 4.11, the Cooperative Agreement, DOE performs certain services for NYSERDA on a total cost reimbursement basis related to the SDA and other premises and facilities retained by NYSERDA.
6.4.2 (OMITTED) 6.4.3 (OMITTED) 6.4.4 The requirements of the New York State Environmental Quality Review Act (SEQRA) apply to NYSERDA activities at the Ceriter.
6.5 The West Valley Demonstration Project 6.5.1 VVDP is located on the Western New York Nuclear Service Center, near the Town of Vest Valley, New York, and is situated approximately 50 KM (30 miles) south east of Buffalo, New York.
6.5.2 The West Valley Demonstration Project premises and facilities generally described as approximately 200 acres of land are situated in the Town of Ashford, Cattaraugus County, State of New York, located north of Buttermilk Road, formerly part of the approximately 3300 acre parcel known as the Western New York Nuclear Service Center.
The site consists of all land and improvements includin5 the Process Plant and project facilities within the perimeter of an eight foot chain link-fence, including the Nuclear Regulatory Commission Licensed Burial [ Disposal) Area (NDA) but excluding an approximately 15 acre rectangular area situated ir the southeastern portion ROUGH DRAFT Preliminary, Discussion Only 15
ql. :4 :
9_
WlM.L-DRAFT llJ}<
, of the site known as the State Licensed Low Level Burial
]
'(Disposal) Area (SDA).
6 '. 5. 3 DOE has no authority under the WDP Act with respect to disposition of those portions of
- Project Premises-and Facilities" (as defined in the Cooperative Agreement) not used in the solidification project, nor does DOE generally have authority with regard to disposition of facilities not on WDP Premises.
[ REMAINDER OMITTED) 6,5.4 The clean up and management of the ' WDP facilities and i
premises results in the collection and storage of restricted waste for which there is no currently available treatment capacity.
6.6 The Applicability of RCRA 6.6.1 On April 13, 1984, DOE was found to be subject to regulation by the EPA under RCRA, except as inconsistent with the Atomic Energy Act.
LEAF v.
IM.1, 586 F. Supp.1163 (E.
D. Tenn.
1984).
The DOE is subja.t to RCRA requirements by virtue of RCRA Section 6001, 6.6.2 On October 17, 1984, pursuant to Section 3010 of RCRA, 42 U.S.C.
Section 6910, DOE notified EPA of WDP hazardous waste management activities and requested the issuance of an EPA Hazardous Waste Identification number.
6.6.3 On. September 23, 1988, EPA published a Clarification Notice.
(53 FR 37045) which stated that
" Facilities
- treating, storing, or disposing of radioactive mixed waste in states that received authorization by September 23, 1988, are not subject to RCRA regulations until the state revisits its existing authorized hazardous waste program to include The State of authority to regulate radioactive mixed waste."
New York is such a jurisdiction, ROUCH DRAFT - Preliminary, Discussion Only l
16 I
L
i DRAFT 6.6.4 Pursuant to Section 3006(b) of RCRA - 42 U.S.C. '6926(b), on May 15, 1986 the Administrator of EPA authorized the State of New York, effective May 29, 1986, to administer and enforce l
the state hazardous wasce program in lieu' of the federal i
program (51 FR 17737).
By EPA "Immediate-Final Rule" dated March 6, 1990, New York State was authorized to regulate the hazardous waste constituents of radioactive mixed waste, ef fective May 7, 1990 (55 FR 7896).
6.6.5 On May 1990 DOE and NYSERDA submitted a RCRA "Part A" Permit Application, addressing the active RMW waste management units at the WDP.
A schedule for submitting the WDP "Part B" permit applications are addressed in the Action
- Plans, i
6.6.6 NYSERDA is the " owner" of both the WDP site and the Center as a whole, including units where hazardous and radioactive mixed waste are or were, collected, created, stored and disposed of at the Center, as those terms are defined in -.
40 CFR Part 260,10 and New York State Hazardous Waste Mana6ement Regulations, 6 NYCRR 370.2(b)(120).
6.6.7 The WDP is a " f acility" as that term is defined at 40 CFR 260.10 and 6 NYCRR 370.2(b)(63),
6.6.8 Pursuant to Section 3006(g) of
- RCRA, requirements or restrictions appitcable to the generation, transportation, i
treatment, storage or disposal of hazardous waste imposed by or through HSWA take effect immediately in authorized states' and 'are enforceable by EPA.
The requirements set out in 40 CFR Part 268 were imposed pursuant to HSWA amendment of SeeH ons 3004(a) through (k) and 3004(m), and are therefore entorceable by EPA.
ROUCH DRAPI Preliminary, Discussion Only 17
DRAFT
,e--'4 6.6.9 As of the effective date of this Agreement, the state has not been authorized to administer the LDR portion of HSWA.
51 FR 24504 [ INSERT DAT(.
6,7 The Applicability of LDR r
6.7.1 LDR regulations were first promulgated by EPA on November 7, 1986, for listed solvents and dioxins (51 FR 40572).
On July 8,
- 1987, EPA promulgated regulations for certain California list wastes (52 FR 25760).
Radioactive vaste mixed with LDR solvents and dioxins or California' list waste is prohibited from land disposal pursuant to the solvent, dioxin and California list land disposal prohibitions, 6.7.2 The LDR prohibits the land disposal of hazardous wastes (other than those wastes which qualify for an exemption from the restrictions pursuant to 40 CFR Part 268) which have not been treated with specified technologies or to treatment standards determined by EPA to be protective of human health and the environment, 6.7.3 Certain wastes which have been restricted from land disposal pursuant to RCRA were previously collecte( and stored, and are currently treated and rendered non hazardous, l
6,7.4 Pursuant to 40 CFR 268,50, storage of hazardous waste except j
f for the purpose of accumulating quantities necessary to facilitate proper recovery, treatment or disposal of such astes, is prohibited unless pursuant to 40 CFR 268,6 an exception has been granted, L
l 6.7-.5 DOE and WNS brought to EPA's attention that it is currently storing radioactive contaminated restricted waste, and such storage could be construed as storage for purposes other than for accumulating quantities necessary to facilitate proper ROUCH DRAFT Preliminary, Discussion Only 18 l*
DRAFT recovery, treatment or disposal of such vastes. With respect to the VVDP's high level radioactive vaste, EPA and DEC have determined that after 1992 DOE's collection. and-storage of restrictive wastes, prohibited from land disposal, o
are being accumulated to facilitate proper
- recovery, treatment and disposal and thus does not constitute a violation of applicable hazardous waste. laws and regulations, including RCRA regulations found at 40 CFR 268.50.
6.7.6 DOE and tTYSERDA are currently
- planning, permitting, constructing and operating a number of RMW treatment and storage facilities to accommodate the wastes to be collected I
and which are currently in storage at the Center, 1989 DOE ID submitted to DOE HQ the 6.7.7 On information needed to prepare the National Report on restrictive Waste and Treatment Options, which was submitted to EPA on
, 19 as required by the Rocky Flats Plant Federal Facility Compliance Agreement, 6,7.8 VVDP has prepared and implemented a site wide hazardous vaste minimization program.
Annual reports are submitted to EPA and DEC, 7.0 PROJECT COMPLI ANCE REQUIREMENTS (The following sections, 7.1, 7,2 and 7.3 will describe how DOE and NYSERDA will address, as appropriate, compliance issues concerning LDR, equivalency, ALARA, schedules, etc.)
7.1 Description of Operable Units (To Be Provided]
7.2 Compliance concerns [To be Provided) 7,3 Regulatory Determinations (To be Provided)
ROUGH DRAFT - Preliminary, Discussion Only 19
DRAFT 7.4 The DOE and NYSERDA Action Plans, are attached as Appendices A and B.
These Action Plans describe how DOE and NYSERDA vill address issues concerning site characterization or investigation and corrective
- actions, if
- any, and schedules for regulatory shall compliance.
Implementation of their respective Action Plans remain the separate responsibilities of DOE and NYSERDA.
Modification to the Action Plans shall require approval of the Lead Regulatory Agency, but shall not require signature of all Parties under section 15.1 (Modifications),
Modifications to their respective - Action Plans as may be proposed by DOE or NYSERDA shall be subject to dispute resolution under Article 9.0 (Resolution of Disputes) if not approved by the Lead Regulatory Agency.
Proposed modifications to NYSERDA's Action plan shall be provided to DOE for comment.
Proposed modifications to DOE's action plan shall be provided to NYSERDA for comment.
7.5 Summary of Action Plan to be provided by DOE.
DOE's Action Plan shall be referred to as Appendix A.
INFORMATION TO BE PROVIDED BY THE WDP TECHNICAL STAFF AFTER THIS CONSULTATION WITH THE EPA AND NYSDEC.
.'TYSERDA's Action 7,6 Summary of Action Plan to be provided by NYSERDA.
Plan shall be referred to as Appendix B.
THIS INFORMATION TO BE PROVIDED BY THE NYSERDA TECHNICAL STAFF CONSULTATION WITH THE EPA AND NYSDEC.
8.0 DESIGNATION OF LEAD REGULATORY AGENCY 8.1 For purpose of this Agreement, EPA shall be the Lead Regulatory including, Agency for all matters related to site characterization, the investigation of the Center and any subsequent implementation of corrective measures, if any.
EPA shall also be the Lead Regulatory Agency for matters relating to LDR.
ROUGH DRAFT - Preliminary, Discussion Only 20
DRAFT B.2 - DEC shall be the Lead Regulatory Agency for catters relating to interim status, permitting and closure of hazardous waste management units used by the WDP.
8.3 In the event that tne state becomeo authorized, pursuant to Section 3006 o f RCRA, for che LDR-portion of the HSWA program while this Agreement is in effect, the Parties agree that as of the date of such authorization the designation of Lead Regulatory Agency for to Article 7.0 purposes of approval of documents submitted pursuant of this Agreement shall automatically transfer to the state in accordance with the change'in authorization.
Upon authorization of the state, this Agreement shall become enforceable by the state in.
accordance with the terms herein.
9.0 RESOLUTION OF DISPUTES 9.1 Except as specifically set forth elsewhere in this Agreement, if a dispute arises under this Agreement, including a dispute under Article 7,0 (Compliance Requirements),
the procedures of this Article shall apply.
Any Party to this Agreement may invoke this dispute resolution procedure, provided, however, [ PARTIAL OMISSION)
- WNS will consult and coordinate with DOE prior to invoking the dispute resolution procedure.
All Parties to this Agreement shall make reasonable efforts to informally resolve disputes at the Project Coordinator or immediate supervisor level.
If resolution be achieved informally, the procedures of this Article shall cannot be implemented to resolve a dispute.
9.2 Within thirty (30) days after any action which leads to or generates a dispute (including a failure of the informal dispute resolution process), the disputing Party shall submit to the Dispute Resolution Committee (DRC) a written statement of dispute setting forth the nature of the dispute, the work affected by the dispute, the disputing Party's position with respect to the Dispute and the ROUGH DRAFT - Preliminary, Discussion Only 21 1
1
o.
DRAFT information the disputing Party is relying - upon to support its
- position, Within thirty (30) days of receipt of notice of dispute, Parties may submit written statements of position, with tho other supporting information.
9.3 Prior to issuance of a written statement of dispute, the disputing Party shall engage the.other Parties in informal dispute resolution Coordinators and/or their immediate supervisors.
among the Project During this informal dispute resolution period, the Parties shall meet as many times as are necessary to discuss and attempt resolution of the dispute.
9,4
[0MITTED) as a forum for resolution of disputes for which '
9.5 The DRC will serve Agreement-has not been reached through informal 1 dispute The Parties shall each designate one individual and an 1
resolution.
alternate to serve on the DRC.
The individuals designated to serve on *.he DRC shall be employed at the policy level (Senior Executive Servine (SES) or equivalent) or be delegated the authority to-participate on the DRC for the purposes of dispute resolution under this Agteement.
The EPA representative on the DRC is of EPA's Region II.
DOE's the designated member is the West Valley Project Office WVNS's NYSERDA's representative is its representative is its Vice President and Radiological and Environmental Safety Manager.
DEC's designated. member is the Written notice of any delegation of authority from a Party's designated representative on the DRC shall be provided to all other Parties pursuant to the procedures of Article 16.0 (Designated Project Coordinators).
9.6 Following the receipt-of all statements of position or the expiration of the period pr ovided for their submittal, (whichever occurs first) the DRC shall have twenty one (21) days to unanimously ROUCH DRAFT Preliminary, Discussion Only 22
.E '
DRAFT 4--
resolve the dispute and issue a written decision.
If the DRC is-unable to unanimously resolve the dispute within this twenty one (21)-day period, the written statement of dispute shall be forwarded within seven (7) days to the Senior Executive Committee (SEC) for resolution, The SEC will serve as the forum for resolution of disputes for which 9.7
' Agreement has not been reached by the DRC.
EPA's representative on of EPA's Region II.
the SEC is the DEC's representative-on the SEC is DOE's representative on the SEC the is the DOE West Valley Project Operations Director.
NYSERDA's representative on the SEC is WNS 's representative is its President and Ceneral Manager.
The SEC members shall, as appropriate, confer, meet and exert their best efforts to resolve the dispute and issue a written decision.
If unanimous resolution of the dispute is not reached within twenty one (21) days, EPA's Regional Administrator shall issue a written decision on the dispute within 21 days of the close of the 21 day resolution period.
Any SEC member may, within twenty one (21) days of the Regional Administrator's issuance of EPA's position, issue a written notice elevating the dispute to the Administrator of EPA for resolution in accordance with all applicable laws and procedures.
In the event that DEC, DOE, WNS, AND NYSERDA elect not to alevate the dispute - to the Administrator within the designated twenty one (21) day escalation period, they shall be deemed to have agreed with to the the Regional Administrator's -written position with respect dispute.
9.8 Upon escalation of a dispute to the Administrator of EPA pursuant to Section 9.7, the Administrator will review and resolve the dispute-within twenty-one (21) days.
Upon request, and prior to resolving the dispute, the EPA Administrator shall meet and confer with the Secretary of Energy and the Commissioner of DEC to discuss the issue (s) under dispute.
Upon resolution, the Administrator shall l
ROUCH DRAFT - Preliminary, Discussion Only l
23 l
i ii DRAFT provide DEC, DOE, WNS and NYSERDA with a written final decision setting forth resolution of the. dispute, The duties of the.
forth in this Article 9.8 shall not be delegated.
Administrator set
[ ADDITIONAL DISPUTE RESOLUTION MAY BE APPROPRIATE VHEN THE STAET (DEC) IS THE LEAD REGUIATORY AGENCY.]
9.9 The pendency of any dispute under this Article shall not affect DOE's, WNS's or NYDERDA's responsibility for timely performance of the work required by this Agreement, except that the time period of shall be extended for a completion of work affected by such dispute period of time, usually not to exceed the actual time taken to resolve any good f aith dispute, in accordance with the procedures specified herein.
All elements of the work required by this Agreement which are not affected by the dispute shall continue and be completed in accordance with the applicable schedule.
9.10 When dispute resolution is in progress, work affected by the dispute will immediately be discontinued if the Lead Regulatory Agency requasts, in writing, that work related to the dispute be stopped because, such work is inadequate or defective, and such inadequacy or defect is likely to yield an adverse effect on human health or welfare or the environment, or is likely to have a substantial adverse effect on the remedy selection or implementation process, To the extent possible, EPA or DEC shall give DOE, WNS and NYSERDA prior notification that a work stoppage request is forthcoming.
After stoppage of work, if DOE or NYSERDA believes that the work is inappropriate or may have potential significant adverse-stoppage DOE and NYSERDA may meet with the Lead Regulatory Agency,
- impacts, to discuss the work stoppage.
Following the meeting, - and further consideration of the issues, the lead Regulatory Agency will issue, The in writing, a final decision with respect to the work stoppage.
final written decision of the Division Director may immediately be subjected to formal dispute resolution.
Such dispute may be brought directly to either the DRC or the SEC, at the discretion of the disputing Party.
ROUGH DRAFT - Preli s ary, Discussion Only f
24 1
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- k DRAFT f',,,,.O_
9.11 Within twenty one (21) days of resolution of a dispute-pursuant to the procedures specified in this Part, NYSERDA, WNS and DOE shall incorporate the resolution and final determination into the appropriate plan, schedule or procedures and proceed to implement this Agreement according to the amended
- plan, schedule or procedures.
9.12 Except as provided below, resolution of a dispute pursuant to this Article of the Agreement constitutes a final resolution of that dispute arising under this Agreement.
The DOE, WNS and NYSERDA shall abide by all terms and conditions of any final resolution of dispute obtained pursuant to this section.
9.13 Disputes between NYSERDA and DOE concerning their respective authority and responsibilities arising from or related to the WDP' Act or the Cooperative Agreement, including disputes regarding matters referenced in their Agreement in Section 5.3 (Concernin6 the SDA) and Section 6.5.3 (Concerning the NDA)' shall be subject to the forth in Section 8.03 of the Cooperative Agreement, procedures set entitled " Resolution of Disputes as to Project Cost."
9.14
[0MITTED]
9.15 (OMITTED) 10.0 ENFORCEMENT 10.1 DOE and NYSERDA recognize their respective obligations to comply with the applicable federal and state laws and regulations, including RCelA, as set forth in Section 6001 of RCRA, 42 U.S.C.
6961 and Parts 370 through 374 of Title 6 of the New York Sec.
Code, Rales and Regulations, and to faithfully discharge the requirements described in the Actions Plans.
ROUCH DRAFT - Preliminary, Discussion Only 25 l
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DRAFT a, s..
10.2 The - provisions' of _ this Agreement shall constitute requirements which are enforceable against DOE, WNS or NYSERDA pursuant to the citizen suit provision of Section 7002 of RCRA, 42 U.S.C.
6972.
DOE, WNS and NYSERDA agree that the state (DEC) constitutos a
" person" pursuant to Section 7002(a) of RCRA.
Therefore, citizen suits include actions or suits by the state to enforce the terms of this Agreement.
10.3 The actions taken under this Agreement are presumed to satisfy.
applicable statutory requirements, regulations, permits, closure plans, or corrective actions, and thus are enforceable under Section 7002(a) of RCRA.
10.4 If any provision of the Agreement is determined to be invalid, shall illegal or unconstitutional, the remainder of the Agreement not be affected by such determination.
r 11.0 REPORTINC AND RECORD REEPING 11.1 All correspondence, notices, submittals, and agency comments shall be sent to the attention of the Project Coordinators designated vider Article 16.0 (Designated Project Coordinators)
DOE will prepare meeting minutes summary for each formal meeting 11.2 among the Parties concerning action under this Agreement and shall a copy to the other parties within fifteen (15) days.
1 provide EPA, DEC or NYSERDA may provide written clarification of the minutes.
12.0 EXTENSIONS Either a timetable or deadline shall be extended upon receipt of a 12.1 timely request from DOE, WNS or NYSERDA for extension and when good cause exists for the requested extension. Any request fe an.
extension shall be made prior to the date for which extensit n is ROUGH DRAIT - Preliminary, Discussion only 26
~ '
DRAFT 1
sought to EPA or DEC, as appropriate, either in writing or' orally with a written follow up request within. ten (10) business days of the request. The request for an extension shall operate to extend the deadline until receipt of EPA's or DEC's written position concerning the request, unless it is determined that the request was made-in bad faith and without reasonable justification.
Any oral or written request shall be provided to the other Parties pursuant to Article 16.0 (Designation of Project Coordinators).
The written request shall specify:
12.1.1 The timetable and deadline or the schedule that is sought to be extended;
.12.1.2 The length of the extension sought:
12,1.3 The good cause(s) for the extension; and 12.1.4 Any related timetable and deadline or schedule that would be affected if the extension were granted.
12.2-Good cause exists for an extension when sought in regard to:
12.2.1 An event of force majeure as provided for in Article 14.0; 12.2.2 A delay caused by another Party's failure to meet any requirement of this Agreement; 12.2.3 A. delay caused by the good faith invocation of dispute resolution or the initiation of administrative or judicial action; 12.2.4 A delay caused, or which is likely to be' caused, by the of an extension in regard to another timetable and grant deadline or schedule; ROUCH DRAFT Preliminary, Discussion Only 27
a DRAFT j.' *'
12.2.5 A delay caused by additional work agreed co by the Parties; 12.2.6 Circumstances unforeseen at the time this Agreement was.
prepered that significantly affect the work required under o
the Agreement; E
F 12.2.7 Delay in issuing a permit required to meet deadlines and schedules; and 12.2.8 Any other event or series of ' events including a delay caused by the initiation of a judicial action by anyone not a Party to this Agreement mutually agreed to by the
, Parties as constituting good cause.
12.3 Absent an agreement of the Parties with respcet to the existence of good cause, the Parties may seek and obtain a determination through the dispute resolution process whether or not good cause exists.
12.4 For' extension requests by DOE, WNS, or NYSERDA, the EPA and DEC will follow the following procedures:
12.4,1 Within. twenty one (21) days of receipt of a written for an extension of a timetable and deadline or a request
~
schedule, the EPA and DEC shall advise all Parties in-Any writing of their respective positions on the request.
failure by EPA or DEC to respond within the 21 day period shall be deemed to constitute. concurrence with the-l requested extension.
If the agency designated as the Lead Regulatory Agency pursuant to Article 8.0 (Lead Regulatory Agency Designation) for the activity subject to.the i
1 request for an extension does not concur with the it shall include in its statement of requested extension, nonconcurrence an expl aaation of the basis for its position.
ROUCH DRAFT - Preliminary, Discussion Only l
1.
R i
DRAFT 12.4.2 If the Lead Regulatory Agency agrees that the requested extension is warranted, then DOE shall extend the affected timetable and deadline or schedule accordingly.
If the Lead-Regulatory Agency does not agree that all or part of the - requested. extension -is warranted, the timetable and t
deadline or schedule shall not be extended except in c
accordance with a determination resulting from the dispute resolution process.
12.4.3 Within twenty one (21) days of receipt of a statement from
't the Lead Regulatory Agency of nonconcurrence with the requested extension, DOE,. WNS or NYSERDA may invoke dispute resolution.
If DOE, WNS or NYSERDA does not invoke dispute resolution within twenty one 4 31) business days of receipt of a statement of nonconcurrence, then the nonconcurrence is accepted and the existing schedule will be followed.
12.4.4 When a timely and good faith request for an extension is 1
- made, EPA and or DEC shall refrain from judicial-enforcement of the affected timetable and deadline or schedule until a decision is reached 'on whether the requested extension will be approved.
Following the grant of an extension,. an application for judicial enforcement-may be sought, if appropriate, only to compel compliance with the timetable and deadline or schedule as most recently extended.
I 12.5 For extension requests by EPA and DEC, if no Party invokes dispute resolution within twenty one (21) days after written notice of the requested extension, the extension shall be deemed approved.
ROUCH DRAFT - Preliminary, Discussion Only 29
DRAFT.
13.0 C0MPl.I ANCE WITH 1AWS All actions undertaken pursuant to this Agreement' by DOE, WNS, or
-NYSERDA shall be done in accordance with all applicable federal laws,
regulations and Executive Orders, and all applicable state and local laws and regulations.
14.0 FORCE MAJEURE 14.1 Force Majeure shall mean any event arising from causes beyond the reasonable control of a Party that causes a delay in or prevents the performance - of any obligations under this Agreement, including, but not limited to:
14.1.1 Acts of God; fire; war; insurrection; civil disturbances; or explosion.
14.1.2 Unanticipated breakups or accident to machinery, equipment or lines of pipe despite reasonably diligent maintenance; 14.1.3 Adverse weather conditions that - could not be reasonably anticipated; unusual delay in transportation; 14.1.4 Restraint by Court Order or order of public authority; 14.1.5 Inability to obtain, at reasonable cost and after exercise of reasonable diligence, any necessary authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority other than DOE or NYSERDA; 14.1.6 Delays caused by compliance with applicable statutes or regulations governing work to be performed under this Agreement including,. but not limited to, contracting, procurement or acquisition procedures, despite the exercise of reasonable diligence; and ROUGH DRAFT - Preliminary, Discussion Only
)
30 1
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,4:
o 14. 'J. 7 Delays caused by compliance with NEPA; 14.1.8 For EPA, DEC, DOE and NYSERDA only, to the extent performance of activities. pursuant to this Agreeraent require appropriated funds, insufficient availability of.
appropriated funds which have been diligently sought.
In order for Force Majeure based on -insufficient funding to apply to DOE or NYSERDA, DOE consistent with Article 19.0 (Funding) of this Agreement, or NYSERDA shall have made-timely requtst for such funds.
14.1.9 For DOE's contractors only, includin5 WVNS, insufficient availability of appropriated funds from DOE required to fund activities.
It is expressly understood that neither WVNS nor its parent
- company, Westinghouse. Electric corporation, is required to independently expend any funds to carry out any of the obligations of the Agreement.
14.1,10 Impossibility of performance despite the exercise of due diligence caused by matters outside the control of the Parties.
14.1,11 Any strike or other labor dispute, whether or not within
.the control of the Parties affected thereby.
14.2 Force Majeure shall not include increased costs or expenses of conducting any required activity, whether or not anticipated at the time such activity was initiated.
14.3 In the event of a Force Majeure creating an impossibility of' performance in compliance with the terms herein, the Parties agree to negotiate in good faith a modification to the Agreement.
ROUGH DRAFT - Preliminary, Discussion Only 31 l
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- DRAFT, 15.0 MnnIFICATION OF AGREEMENT 15.1 This-Agreement, including the Action Plans, may be modified by Y
Agreement of all the Parties.
All modifications shall be in writing and shall be effective when signed by all Parties, EPA shall be the last signatory to.any modifications to the
'A5reement, Disagreements regarding the modifications are subject to dispute resolution under Article 9.0 (Resolution of Disputes).
15.2 Modification to the Action Plans shall require approval of the Lead Regulatory Agency but shall not require the signature of all Parties under this section; in accordance with Section 7,1 of this Agreement (Compliance Requirements).
15.3 No informal advice, guidance, suggestions or comments by EPA or DEC' regarding reports, plans, specifications or schedules, nor other writing submitted by DOE, WVHS or NYSERDA shall be construed as relieving DOE, WVNS, or NYSERDA of their obligations to obtain such formal approval as may be required by this Agreement, 16.0 DESIGNATED PROJECT COORDINATORS The Parties will each designate Project Coordinators to coordinate 16.1 and shall notify the other the implementation of this Agreement Parties in writing of the designation within ten (10) -days of the effective date of this Agreement.
Any Party-may unilaterally change its designated Project Coordinator by notifyin5 the other Parties in writing, communications 16,2 Except where otherwise specified in the Agreement, between the Parties and all documents and notices including
- reports, agreements, and other correspondence concerning the to the terms and conditions of this activities performed pursuant Agreement shall be directed through the Proj ect Coordinators.
Each Project Coordinator shall be responsible for assuring the ROUCH DRAFT Preliminary, Discussion Only 32
4 DRA7T
,,f, internal dissemination and processing of all communications and documents received from the other Project Coordinators, 17,0 COVENANT NOT TO SUE / RESERVATION OF RIGHTS In consideration for DOE's, WNS's and NYSERDA's compliance with 17,1 this Agreement to implement those activities for which each is responsible under the Action Plans, and based on the information EPA known to the' Parties on the effective date of this Agreement, and DEC agree that compliance with this Agreement shall stand in lieu of any administrative, legal and equitable remedies against the DOE, WNS, NYSERDA, or each of their officers, directors, employees, agents or authorized representatives; and in lieu of civil or criminal referral by EPA to the Department of Justice, or DEC to the New York State Attorney General against DOE, WNS,
NYSERDA or their Authorized Representatives, with respect to matters covered by this Agreement.
17,2 In the event that any Party is alleged to be out of compliance with this Agreement, the noncompliance of that Party shall not operate to nullify the covenant not to sue with, respect to the other Parties, DOE does~not waive any claim of 17,3 By entering into this Agreement, sovereign immunity that it may have under federal or state law or not expressly waived by statute; nor does it waive any immunity from payment of fines or penalties, nor does it waive any claim of jurisdiction over matters reserved to it-under the AEA.
17,4 Except as otherwise set forth in this Agreement, DEC does not waive any right or authority it may have under Federal or New York it State law.
DEC expressly reserves all rights and authorities may have under Federal and New York State law except that it expressly agrees to exhaust any applicable remedies provided in Article 9.0, as appropriate (Resolution of Disputes) and as ROUGH DRAFT - Preliminary, Discussion Only 33
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-.i....
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-o provided-in Article 10.0 (Enforcement) of this Agreement prior to exercising - any such rights.
Unless expressly waived by law, the State of New York does not waive its sovereign immunity by entering into this Agreement.
resolution concerning any matter requires decision by 17.5 If dispute the ' Regional Administrator of EPA, or the Administrator of EPA, the Parties may mutually agree to accelerate that-matter through-the dispute resolution procedures of Article 9.0 (Resolution of Disputes) under this Agreement to the Administrator.
17,6 Notwithstanding Article 9.0 of this Agreement (Resolution of y
Disputes), DOE, WNS and NYSERDA reserve che right to seek resolved under judicial review with regard to such disputes not Section 9.1.12, 9.1.14 and 9.1.15 above (regarding resolution of disputes).
17.7 Except as otherwise set forth in this Agreement, the Parties reserve any other rights with respect to any other Party to this or their Authorized Representatives, and with regard to Agreement, any person not a Party to this Agreement, except to the extent that that person is acting in compliance with this Agreement as the Authorized Representative of a Party.
=
17.8 In the event that the Agreement is terminated pursuant to its EPA and the DEC reserve any right they may have to address F
terms.
any alleged violations existing as of the date of termination.
However, such termination shall not. operate to modify the terms of to activities conducted by DOE, NYSERDA this section with respect or WNS af ter the effective date and prior to termination which were in compliance with the terms of this Agreement.
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18.0- ADDITIONAL WORK t
18.1 Either EPA or DEC may at any time request additional work, including field modifications, investigatory work, or engineering evaluations, which the Parties determine necessary to accomplish-the purposes of this Agreement.
Such requests shall be in writing to DOE, WVHS and NYSERDA with copies to the other Parties.
- DOE, WVNS or NYSERDA, as appropriate, agree to give full consideration to all such requests. 'The DOE, VVNS or NYSERDA, as appropriate, may either accept or reject any such requests and shall do so in writing, together with a statement of reasons, within forty five
'(45) days of receipt of any such requests.
However, before DOE's contractors (including VVNS) may accept any ' requests for additional work which would require the expenditure of DOE funds or affect a schedule or other matter for which DOE is responsible under this Agreement, DOE's contractors must obtain the concurrence of DOE prior to accepting any such requests.
If there is no Agreement concerning whether or not the requested additional work or modification to work should be conducted, then dispute i
resolution may be invoked.
18.2 Should additional work be required pursuant to this section, deadlines and schedules for implementation of any activity shall be proposed by DOE, WVNS or NYSERDA, as appropriate, and reviewed included and approved by the Lead Re5ulatory Agency and shall be in the Action Plans prepared pursuant to Sections 7.5 and 7.6 of this Agreement.
18.3 The discovery of previously unknown facts or conditions related to equivalency, ALARA, extensions, LDR's or other compliance issues may be addressed as additional work under this section.
I
]<
Any additional work or modifications to work proposed by NYSERDA, 18.4 l
DOE or WVNS shall be proposed in writing to the other Parties and shall be subject to review by the Lead Regulatory Agency.
l' ROUGH DRAFT - Preliminary, Discussion Only l
35
et DRAFT
.sp NYSERDA, DOE or WNS shall not initiate such work prior to review and approval by the Lead Regulatory Agency.
18.5 Any additional work or modification to work agreed to or required under this Article, shall be completed in accordance with the standards, specifications and schedules determined or approved by the Lead Regulatory Agency and shall be governed by the provisions of this ABreement.
19.0 FUNDING It is the expectation of the Parties to this Agreement that all obligations of DOE arising under this Agreement will be fully funded.
DOE shall take all necessary steps and make efforts to obtain timely funding.to meet its obligations under this Agreement.
19.1 DOE is preparing an Environmental Restoration and Waste Management Five Year Plan (the "Five Year Plan") to identify, integrate, and prioritize DOE's compliance and cleanup activities at all' DOE nuclear facilities and sites.
The Five Year Plan will assist DOE in addressing environmental requirements at its facilities and sites and in developing and supporting its budget requests.
DOE will update its Five Year Plan on an annual basis.
l 19.2 The terms of the Five Year Plan shall be consistcuc with the provisions of this Agreement, including all requirements and l
schedules contained herein; it is the intent of the Parties that DOE's Five Year Plan be drafted and updated-in a manner that ensures that the provisions of this Agreement are ' incorporated I
into the DOE plannin5 and budget process.
l-19.3 DOE is developing a national prioritization system for inclusion I
in its Five Year Plan.
DOE's' application of its national i
prioritization system may indicate to DOE th#v amendment or modification of the provisions and/or milestones established by ROUGH DRAFT - Preliminary, Discussion Only 36
j.,
DRAFT
.e this Agreement is appropriate.
In_that event, DOE may request, in writing, amendment or modification of.this Agreement, including deadlines established herein.
k'he re the Parties are unable to reach Agreement on a requested amendment or modification, DOE may_
invoke the dispute resolution provisions of this Agreempt.
Pending resolution of any such dispute, the provisions and deadlines in effect pursuant to this Agreement shall' remain in effect and enforceable in accordance with the terms of this Agreement.
19.4 DOE shall include in its annual report to Congress the specific i
cost estimates and budgetary proposal associated with the f
implementation of this Agreement.
Any requirement for the payment or obligation of funds by DOE established by the terms of this Agreement shall be subject to the availability of appropriated I
provision herein shall be interpreted to require funds, and no obligation or payment of funds in violation of the Anti Deficiency i
Act, 31 U.S.C. and 1341, el sea.
19.5 In cases where payment or obligation of funds would constitute a violation of the Anti Deficiency Act, the dates established requiring the payment or obligation of such funds shall be appropriately adjusted.
i 19.6 Nothing herein shall affect DOE's authority over its budget and.
i funding level submissions.
20,0 TERMINATION AND SATISFACTION 20.1 This Agreement shall remain in effect until such time that all activities conducted under this agreement are completed or until of all i
such time that it is superceded or modified by Agreement Parties.
ROUGH DRAFT - Preliminary, Discussion Only 37
Er DRAFT
-20.2 Following=the issuance of a RCRA Part B permit, or upon completion
~
of all required actions and upon written request by DOE, WNS or NYSERDA, EPA and DEC shall send to DOE, WNS and NYSERDA (as appropriate) a written notice of satisfaction of the terms of this Agreement within ninety (90) days of this request.
WNS may request written notice of satisfaction under this section only if any, which EPA or DEC have required WNS to regarding matters, independently perform.
The notice shall state that, in the opinion of EPA and DEC, that. DOE, WNS or NYSERDA (as appropriate) has satisfied all of the terms of this Agreement in accordance with the requirements of RCRA, and all related regulations and that the work perf ormed by DOE, WNS or NYSERDA was consistent with the Agreement.
Any refusal by EPA and/or DEC to supply DOE,.
WNS or NYSERDA with a notice of satisfaction shall be subject Article 9.0 (Resolution of Disputes).
21.0 EFFECTIVE DATE is effective upon the date signed by EPA.
EPA shall be This Agreement the final signatory to the Agreement.
22.0 NRC REVIEW AND CONSULTATION 22.1 As mandated by the WDP Act, Section 2(c), DOE. and NRC entered into a Memorandum of Understanding (MOU) (46 FR 56960, November 19, 1981) which established procedures for review and consultation by the NRC with respect to WDP activities conducted by the DOE.
The MOU encompassed those development,
- design, construction, operation, and decontamination and decommissioning activities associated with the WDP.
The NRC review, consultation and-monitorin5 established by the MOU is to provide the - DOE with independent analyses to assist DOE in fulfilling its responsibility for public health and safety.
The NRC is responsible to carefully review, crit.ique and analyze, in a timely manner, che information provided by DOE to identify to DOE any ROUGH DRAFT - Preliminary, Discussion Only 38
.;.=
D R'A F T e
.s7*-
f potontici radiologicol d:ngor to the public hoslth end scfoty.
In addition, the WDP Act provides, in Section 2(a):
"(4)-
The (DOE) shall, in accordance with applicable licensing requirements, dispose
,Y low level radioactive waste and transuranic _ waste produced _by the solidification of the high level radioactive waste under the project.
(5)
The [ DOE) shall decontaminate and decommission -
(A) the tanks and the facilities of the Center in which the high level radioactive waste - solidified-under the project was' stored.
(B) the facilities used in the solidification of the wastes, and (C) any material and hardware used in connection with the project in accordance with such requirements as the (NRC) may prescribe.
(Emphasis supplied).
22.2 For those portions of the Center in the possession of DOE which are not used in connection with the WDP, the DOE-is to provide the NRC information to identify any potential radiological danger to the public health and safety and provide NRC access to monitor activities.
22.3 To promote consistency with requirements for. radiological and hazardous constituents with respect-to WDP Radioactive Waste Management activities, the Parties desire to obtain the review and consultation of the NRC to assist in implementing this Agreement.
Such coordination is also intended to reduce duplication in affort.
22.4 -To the extent practical and as resources are available, NRC will act as a technical consultant regarding implementation of this Agreement
- and, as requested by
- DOE, conduct ROUGH DRAFT - Preliminary, Discuspica Only 39
D R'A F T 4
- 1... c:
independent review 'of. documents provided or submitted pursuant to this Agreement.
23.0 REVIEW AND COMMENT PROCESS FOR SUBMITTED DOCUMENTS 23.1 The provisions of this Article establish the procedures that shall be used' by the Parties to provide appropriate notice, review, comment and response to comments'regarding documents relating to site characterization or investigation and corrective action, if any submitted pursuant to this Agreement.
NYSERDA, DOE and WNS will normally be responsible for submitting documents pursuant to their respective responsibilities under the Action Plans to EPA and DEC.
As of the effective date of the' Agreement, all such documents or any other' document so designated by the Lead j
Regulatory Agency which may be rem red from DOE, WNS or NYSERDA pursuant to this Agreement shall be prepared and distributed under the procedures of this. Article, and subject to dispute.in accordance with Section 23.9 below.
23.2 The designation of a document as " revised" or "ap roved" is solely for purposes of consultation with EPA and DEC in accordance with this Article.
Such designation does not effect the obligation of the Parties to issue documents,-which may be referred to herein.as
" revised" or " approved," to the public for review and comment as required by law.
l-23.3 Any document required to be submitted by DOE, WNS or NYSERDA and approved by the Lead Regulatory Agency pursuant to - the Action Plans, 'shall be submitted by DOE, WNS or NYSERDA to the Lead v
Regulatory Agency for review and comment on or before the date specified in the Action Plans.
Copies of such submittals shall be 1
I provided to all Parties.
Except as the Lead Regulatory Agency may L
otherwise direct, work may not proceed unless the applicable L
document is approved.
1 ROUGH DRAFT - Preliminary, Discussion Only 40
l
[
DRAFT 23.4 Unless extended or otherwise specified in the applicable Action Plans, all documents shall be subject to a 30 day period of review and comment by the Lead Regulatory Agency.
Review of any document by EPA or DEC may concern all aspects of the document (including technical completeness) and should include, but is not limited to, evaluation of any aspect of the document, and consistency with any pertinent guidance or policy issued by EPA or DEC.
Comments by EPA and DEC shall be provided with adequate specificity so that NYSERDA and/or DOE may respond to comments and, if appropriate,'
make changes to the document.
Comments shall refer to any pertinent sources of authority or references upon which the comments are based, and, upon request, EPA and DEC shall provide a copy of the cited authority or reference.
EPA or DEC may extend the 30 day comment period for an additional 30 days by written notice to NYSERDA, DOE or WNS prior to the end of the 30 day period.
This time period may be further extended pursuant to Article 9.0 (Resolution of Disputes) if necessary to adequately comment on the submitted document.
On or before the close of the comment period, EPA and DEC shall transmit, by next day mail, their written comments to the other Parties.
If EPA and DEC do not transmit comments within the comment period (including any extension under this paragraph) such submitted documents shall be deemed approved.
appropriate, 'shall 23.5 Representatives of DOE, WNS or NYSERDA, as make themselves 'readily available to EPA and DEC during the comment period for purposes of informally responding to questions and comments on submitted documents.
Oral comments made during such discussions need not be subject of a written response by DOE, WNS or NYSERDA.
23.6 Following the close of the comment period for a submitted document, NYSERDA, DOE and WNS shall give full consideration to Within all written comments submitted during the comment period.
30 days of the close of the comment period, NYSERDA, DOE and WNS ROUGH DRAFT - Preliminary, Discussion Only 41
D'R A F T-shall - submit to EPA and DEC a revissd dscum;nt~ which shall bs responsive to :all written comments received within the ' comment 1
_ period.
I 23.7 NYSERDA, DOE and WNS may extend the 30 day period for issuing the revised document for an additional 20 days by providing written I
In appropriate circumstances, this time period may be further extended in accordance with Archie 12.0 (Extensions).
23.8 Except as may be specifically stated in a document, no submittal, i
revision or response shall affect or modify the respective rights, obligations or liabilities of NYSERDA, DOE or WN$ under the WDP l
Act nor any contract or agreement other than this A6reement.
l t
23,9 Availability of Dispute Resolution for Documents 23.9.1 Dispute resolution shall be available to the Parties for comments or revised documents provided pursuant co this Article 23.0 as set forth in Article 9.0 (Resolution of Disputes).
23.9.2 When dispute resolution is invoked on a comment or.a revised document, DOE, WNS or NYSERDA may extend the time for performance of the work required by this Agreement in accordance with the procedures set forth in Article 9.0' (Resolution of Disputes).
The revised document shall be deemed final and approved unless the' 23.10 Lead Regulatory Agency in its discretion:
23.10.1 Submits additional comments and requests revision pursuant to the procedures of Section 23.4: or 23.10.1 Invokes dispute resolution pursuant to Section 23.9 l
above.
L ROUGH DRAFT - Preliminary, Discussion Only 42
(n..c:
-DRAFT
,....s IT IS So AGREED:
DATE:
SIGNED:
A. Pitrolo U.S. Department of Energy Idaho Falls Operation Office DATE:
SIGNED:
R. A. Thomas President and General Manager West Valley Nuclear Services Co...
Inc.
DATE:
SIGNED:
~
Irvin L. White President New York State Energy Research and i
Development Authority DATE:
SIGNED:
i Director
'l Region II U.S. Environmental Protection Agency DATE:
SIGNED:
N. D. Khal r
Director Region IX New York State Department of Environmental Compliance l
And, for the limited purpose of review and consultation, as provided in Article 22.0- (NRC Review and Consultation) of this Agreement, the U.
S.
Nuclear Regulatory Commission enters herein:
DATE:
SIGNED:
NAME TITLE U.S Nuclear Regulatory Commission 1
ROUGH DRAFT Preliminary, Discussion Only 43
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.... o-EPA /NYSDEC TECHNICAL BRIEFING CIIARACTERI7;ATION OF SWMU'S TIIE CIIARACTERIZATION OF SWMU'S FOR EIS PURPOSES AT TIIE WVDP WILL INCLUDE:
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= INDEPTII REVIEW OF OPERATING IIISTORIES 0VERLAND GAMMA RADIATION SURVEY OF 230 ACRES
= SURFACE GEOPIlYSICS (OPTIONAL)
= SURFACE SOIL SAMPLING
= SEDIMENT / SLUDGE SAMPLING
= SUBSURFACE SOIL SAMPLING
= GROUNDWATER MONITORING
= ANALYSIS OF MEDIA / UNIT SPECIFIC INDICATOR PARAMETERS INCLUDING RADIOLOGICAL AND OTliER CIIEMICAL SPECIES NYS000 s-
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o EPA /NYSDEC TECHNICAL BRIEFING TIIE WVDP EIS SITE CIIARACTERIZATION TIIIS PROGRAM INCLUDES:
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= FACILITY PROGRAMS (e.g., SWMU CIIARACTERIZATION)
= SITE PROGP.AMS (STREAM EROSION; WATER RESOURCE STUDIES)
= ' REGIONAL PROGRAMS (e.g., DEMOGRAPIIIC STUDIES)
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