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’ F acility in Clive Utah – Response to

Four Comments Received on the Direct Final Rule

Background

On March 6, 2008 (73 FR 12017), the Envi ronmental 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 altern ative treatment standard to treatment by combustion (CMBST) required for these wast es under EPA rules implementing the land disposal restrictions (LDR) provisions of th e Resource Conservation and Recovery Act (RCRA). The Agency determined that comb ustion of the solid treatment residue generated from the VTD unit is technica lly 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 la nd disposed without furt her 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 fina l rule because we view this action as

noncontroversial. Based on the information an d data submitted by the petitioner for this site specific treatment variance and the ov ersight 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
Energy Solutions ’ 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 th is rulemaking. The third comment supported granting the site-specific tr eatment variance to Energy Solutions . The final comment

raised concerns about radioactive waste bein g treated in Utah and EPA’s determination that the only regulated entity that woul d be affected by the rule would be Energy Solutions (see 73 FR at 12044). The commenter argued that Energy Solutions was not the only affected party and stated that the commenter , the State of Utah, and the United States

1would be affected by granting this treatment variance. The commenter however, did not state why or how these enti ties would be affected. While the commenter’s assertion that citizens, the States, and the federal governme nt 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 treatm ent variance are satisfied. However, EPA believes firmly that no entities will be ad versely affected by gr anting the treatment

variance. First

, Energy Solutions is a permitted hazardous waste treatment, storage and disposal facility and is subject to regulati ons and permit conditions which assure protection of human health and the enviro nment. Second, the unchallenged record indicates that Energy Solutions ’ 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 Energy Solutions should be promulgated.

1 It should be noted that even if the Agency were to deny Energy Solutions’ 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 in formation provided by Energy Solutions demonstrates that such further treatment is inappropriate.

2