MEMORANDUM

To: The Record 

Subject: Land Disposal Restrictions: Site-Specific Treatment Variance for P and 

U-Listed Hazardous Mixed Wastes Treated by Vacuum Thermal 

Desorption at the Energy Solutions’ Facility in Clive Utah – Response to 

Four Comments Received on the Direct Final Rule 

Background

On March 6, 2008 (73 FR 12017), the Environmental Protection Agency (EPA) issued a 

direct final rule granting a site-specific treatment variance to EnergySolutions, LLC 

(EnergySolutions) in Clive, Utah for the treatment of certain P and U-listed hazardous 

waste containing radioactive contamination (“mixed waste”) using vacuum thermal 

desorption (VTD). The variance is an alternative treatment standard to treatment by 

combustion (CMBST) required for these wastes under EPA rules implementing the land 

disposal restrictions (LDR) provisions of the Resource Conservation and Recovery Act 

(RCRA). The Agency determined that combustion of the solid treatment residue 

generated from the VTD unit is technically inappropriate due to the effective 

performance of the VTD unit. Once the P and U-listed mixed waste are treated using 

VTD, the solid treatment residue can be land disposed without further treatment. The 

treatment variance is conditioned upon Energy Solutions complying with a Waste 

Family Demonstration Testing (WFDT) plan specifically addressing the treatment of 

these P and U listed wastes, which is to be implemented through a RCRA Part B permit 

modification for the VTD unit. 

EPA published this rule as a direct final rule because we view this action as 

noncontroversial. Based on the information and data submitted by the petitioner for this 

site specific treatment variance and the oversight being provided by the regulatory 

authority in the State of Utah, we do not believe that there will be significant adverse 

comments to this action. However, EPA also published on March 6, 2008 (73 FR 12024) 

a separate document that would serve as a proposed rule should EPA receive significant 

adverse comments on the direct final rule. 

Analysis of Four Comments Received

The Agency received four comments on the direct final rule. Two of the 

comments were identical, and urged the Nuclear Regulatory Commission (NRC) to deny 

EnergySolutions’ request to import nuclear waste into the United States for disposal. We 

have concluded that these comments are not germane to the treatment variance and 

addressed an issue outside the scope of this rulemaking. The third comment supported 

granting the site-specific treatment variance to EnergySolutions. The final comment 

raised concerns about radioactive waste being treated in Utah and EPA’s determination 

that the only regulated entity that would be affected by the rule would be EnergySolutions

(see 73 FR at 12044). The commenter argued that EnergySolutions was not the only 

affected party and stated that the commenter, the State of Utah, and the United States 

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would be affected by granting this treatment variance. The commenter however, did not 

state why or how these entities would be affected. While the commenter’s assertion that 

citizens, the States, and the federal government could be affected by this action may be 

correct in the broadest sense, we believe that it has no relation to the narrow question at 

issue here of whether the criteria for a treatment variance are satisfied. However, EPA 

believes firmly that no entities will be adversely affected by granting the treatment 

variance. First, EnergySolutions is a permitted hazardous waste treatment, storage and 

disposal facility and is subject to regulations and permit conditions which assure 

protection of human health and the environment. Second, the unchallenged record 

indicates that EnergySolutions’ method of treatment fully satisfies the criterion for a 

treatment variance; that is, the method of treatment is one that minimizes threats to 

human health and the environment posed by land disposal of the wastes being treated.1

After review of the comments, the Agency has determined that the site specific treatment 

variance to EnergySolutions should be promulgated. 

 

1 It should be noted that even if the Agency were to deny EnergySolutions’ petition, 

it would not prevent them from treating these wastes, although the solid treatment 

residue generated from the VTD unit would need to be further treated by CMBST. 

However, the data and information provided by EnergySolutions demonstrates that such 

further treatment is inappropriate. 

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