Confidential Pre-Enforcement Memorandum June 29, 2012 TO: Jane Hedges, Program Manager Nuclear Waste Program K Seiler, Program Manager Hazardous Waste and Toxics Reduction Program THROUGH: John Price, Section Manager, Tri-Party Agreement (TPA) Nuclear Waste Program FROM: Kerry Graber, Inspector Hazardous Waste and Toxics Reduction Program Joanette Biebesheimer and Kathy Conaway, Inspectors Nuclear Waste Program SUBJECT: Enforcement Strategy Recommendations Solid Waste Operations Complex (SWOC): Central Waste Complex, T-Plant, Low Level Burial Grounds (DW trench 31 & 34), Waste Receiving and Processing Facility USDOE Hanford Facility, WA7890008967 Ecology is proposing to take an enforcement action against the United States Department of Energy (USDOE) for violations of the Dangerous Waste regulations at facilities at Hanford. The purpose of this memo is to provide a proposed enforcement strategy for the above-referenced facilities for your consideration and decision. With your agreement a final recommendation for enforcement (RFE) with a draft administrative order will be prepared and submitted for approval. This memo discusses the goals for the enforcement action and provides a brief discussion of enforcement approaches for your consideration. Background and Context This proposal is based on evidence collected over the past two years at four TSD groups that are collectively referred to as SWOC: • • • • Central Waste Complex (CWC) T-Plant Complex (T-Plant) Waste Receiving and Processing Facility (WRAP) Low Level Burial Grounds Trench 31 & 34 (LLBG 31 & 34) 1 Compliance staff have documented and collected evidence of violations of the Dangerous Waste Regulations, Chapter 173-303 WAC at the four SWOC TSD groups. The nature of the violations and the behaviors that are causing the compliance problems are interrelated because the four facilities operate together as a waste management system. Mixed waste retrieved from the burial ground trenches are brought to the CWC TSD group for storage (this is referred to as “waste retrieval project” waste, or WRP). From the CWC containers are either sent to the WRAP or the T-plant Complex for what USDOE claims is LDR treatment. Containers may also be prepared for shipment to an off-site Treatment, Storage and/or Disposal facility. Once low level mixed waste (LLMW) receives LDR treatment either on-site or at an off-site facility, it is land disposed in the LLBG 31 & 34 TSD group at the Hanford Facility. If the waste is “trans-uranic mixed” waste (TRUM), long-lived radioactive mixed waste, then it returns to the CWC to be stored. The M-91 milestones include schedules for completing LDR treatment, or to complete certification of trans-uranic waste for disposal at WIPP in lieu of completing LDR treatment. The storage is likely occurring because the Hanford facility no longer has the means to certify containers to be shipped to the Waste Isolation Pilot Project (WIPP) in New Mexico. USDOE no longer maintains separate certification capability at individual sites. Rather, all certification work for WIPP is conducted out of USDOE’s Carlsbad Field Office, with personnel sent to the various generator sites to conduct certification. The SWOC waste management system relies on the CWC TSD group as a critical hub because it is the first place the WRP waste is received once it is retrieved from the burial trenches. USDOE expanded this facility to include graveled areas within the boundary of the facility in order to place WRP boxes outside rather than place them in buildings or secondary containment structures. USDOE justifies the existence of the expansion area using three claims: 1. The CWC has interim status and therefore USDOE can modify the facility with a simple Part A change; 2. The entire facility is one big Dangerous Waste Management Unit (DWMU) so that waste can be placed anywhere within the facility boundary; 3. The boxes contain only solid hazardous debris that is eligible for exemption from secondary containment requirements in WAC 173-303-630. Whether USDOE received permission from Ecology to take this action is being investigated by EPA through a “show cause” letter. Ecology’s administrative record has confirmed that the agency did not receive a request for permit modification for what we call the CWC “expansion area” during the time the facility began storing boxes on gravel, around 1998 or 1999. The WRAP, like the CWC, has expanded into outside units with graveled or uncovered areas where TRUM is stored or staged. These areas did not receive Ecology approval through a permit modification process. At both WRAP and the T-Plant Complex there are dangerous waste management units that are more appropriate for waste management and are not actively used. 2 These units should either be used or be closed according to the approved closure plan in the permit. When WIPP shipments begin again USDOE may seek authorization to store wastes in these units through the permit modification process. 3 It is important that the SWOC waste management system be corrected with a comprehensive approach so that compliance at one facility as a natural consequence supports compliance at the other facilities. Requirements for waste acceptance practices must be clear, and standards for safe storage must be met, to safely manage the WRP containers throughout the system. This safety concern includes the off-site facilities that receive shipments for LDR treatment and repackaging. Failures of current practices to safely protect workers and the environment can be directly linked to a failure to follow regulatory requirements. The violations are systematic and demonstrate a pattern of non-compliance indicating all four facilities are significant non-compliers (SNCs). According to the HWTR’s compliance assurance policy a SNC is a facility that: • Warrants formal enforcement ; and • Has caused actual exposure, or a substantial likelihood of exposure, of dangerous waste or dangerous waste constituents to humans or the environment; or • Is a chronic or recalcitrant violator; or • Has violation(s) which deviate substantially from the conditions of a permit, order, agreement, or hazardous waste statutory or dangerous waste regulatory requirement. Public entities receive special consideration under the compliance assurance policy. When Ecology takes informal and formal enforcement actions to assure compliance of a local, state, or federal entity, special circumstances such as the impacts on the Hanford Facility careful attention needs to be paid to constructing timeframes that are achievable and at the same time are protective of human health and the environment. However, the policy is clear that Ecology does not provide an exemption for public entities from enforcement. Once an enforcement pathway is chosen the compliance assurance policy provides discretionary factors that are evaluated by compliance staff in making recommendations for the penalty amount. Discretionary factors may adjust the penalty amount per violation. The factors are summarized as follows: • • • • Small business incentive – adjust penalty down Degree of deviation from the regulations – adjust penalty up History of non-compliance – adjust penalty up Demonstration of good faith – adjust down or up A full discussion of the violations, the evidence, an evaluation of the factors, and how the factors apply to this specific enforcement will be provided in the RFE. In accordance with the Ecology enforcement policy, we propose to develop an RFE that details the violations, calculates a penalty, and provides requirements that will be set forth to solve the compliance order provisions to solve the problems we have identified. 4 Categories of Compliance Problems The problems associated with the SWOC TSD groups are identified in one of five categories: • Spills and Releases o Failure to properly notify, report, and mitigate spills (WAC 173-303-145), and failure to adequately prepare for spills and maintain preventative measures (WAC 173-303-340). • General Waste Analysis o Failure to adequately characterize, designate and verify dangerous and mixed waste retrieved from the low level burial grounds under the M-91 TPA milestone (WAC 173-303-300). The lack of appropriate waste verification, questionable treatment practices, and the confirmed presence of liquids in “debris” containers, are all issues related to this problem. • Container Management o Failure to provide care and containment for hazardous waste containers that comply with the required container management standards (WAC 173-303-630). o Failure to adequately inspect, prevent and respond to/remedy unsatisfactory container conditions (WAC 173-303-320). o Failure to close storage units that are not receiving or actively storing mixed waste (WAC 173-303-630 and -610). • Transportation o Transportation of dangerous and mixed waste to an off-site facility in violation of United States Department of Transportation regulations that are referenced in WAC 173-303-190. • Expansion o Failure to submit a permit modification request to expand an existing facility (permit changes) under WAC 173-303-830. Goals for the Enforcement We need to stay in close coordination with EPA while they develop a separate but parallel enforcement action against USDOE on the permit status of SWOC TSD groups based on the National Enforcement and Investigations Center (NEIC) inspection in 2011. It is important that 6 we avoid duplicating our citations if possible. The following goals are proposed to resolve the identified problems at the SWOC TSD groups: 1. Spill notification, mitigation, reporting and contingency plan. It is the goal of this enforcement to clarify and specify uniform requirements for the four facilities for spill management consistent with Ecology’s WAC 173-303-145 regulation and existing state-wide guidance. Currently the facilities do not have enforceable requirements under the existing 1994 permit contingency plan, making it difficult for Ecology to be clear about our compliance expectations. The enforcement will provide operating requirements for meeting WAC 173-303-350 (Contingency plan and emergency procedures). An added benefit of the anticipated enforcement action is that it will prepare the permittee for the requirements to be placed in the final new permit. It will also provide consistency with other TSDs in Washington State. 2. Waste analysis plans and waste acceptance practices. The four facilities do not have an Ecology-accepted, approved, waste analysis plan (WAP). The HWTR program’s position is that a comprehensive, enforceable WAP is essentially the key to effective compliance. For the SWOC TSD groups it is necessary to ensure that the required standards for storage, effective treatment, and land disposal are conducted in a manner that is protective and prevents further site contamination. Currently, the SWOC TSD groups employ waste acceptance practices that rely solely on “acceptable knowledge” information that does not meet all requirements of WAC 173303-300 for waste characterization and verification. The consequences of this practice are that containers are stored in areas without containment or cover, the transportation and movement of containers are incorrectly identified, releases of liquids occurs from containers that were only supposed to contain solids, and ultimately more risk placed on workers at off-site treatment facilities. Clarity on waste analysis requirements is needed so that the facilities understand exactly what steps are required (not optional or subject to judgment) so that safe handling and management is assured. The enforcement will place the four facilities with emphasis on the CWC under common minimum requirements for waste identification, characterization, and verification. The enforcement will be specific about when waste analysis actions must be taken, and what actions are required and not optional. This will prepare the permittee for compliance with final provisions of the new permit once it is issued. A secondary goal is to bring the facilities into compliance under requirements that are consistent with permits for TSDs statewide. 3. Containment standards, unit closure, and inspection practices. The dangerous waste regulations require that containers be stored within engineered 7 containment systems designed to prevent releases to the environment. The regulations also require thorough inspection practices that help to identify unsafe or problem conditions during storage, and require prompt responses for fixing problems. Finally, the regulations require unapproved units or units not actively being used to undergo closure. CWC does not provide adequate containment for dangerous and mixed waste in the outdoor expansion area. Investigations have documented (EPA, NEIC, Ecology) that a significant number of containers have liquids. While USDOE has claimed an exemption from the -630(7) containment requirement based on an assertion that the containers do not have liquids in them, the lack of waste verification practices and the evidence of the release of liquids from December 2011 does not support their assertion. CWC has existing containment storage buildings and an outdoor containment pad that meets the regulatory standards. These are either underutilized or currently not used at all. The enforcement will provide a compliance schedule for the removal of containers from the expansion area, and prohibit the storage of dangerous and mixed waste in the future in this illegal unit. Containment units at the other three facilities that are not actively storing or processing waste will be required to close. According to NWP and EPA compliance staff, the T-Plant also has illegal outdoor storage areas currently in use. These areas are served either by asphalt pads or gravel/dirt, and do not have adequate cover or secondary containment. Some of these units were added without Ecology written approval or a permit modification request from the Permittee. These units will require assessment and if they do not meet the required standards, closure. Waste storage will need to occur only in areas specifically designed to be protective and that comply with the required standards. The enforcement will also require USDOE to notify Ecology of any planned changes to containment areas. Specifically, USDOE will be required to give notice of repairs or alterations that require demolition in order to remove contamination from surfaces – these types of activities will be clearly identified as partial closure subject to the notification and documentation requirements in the regulations (WAC 173-303-610(1)(d)). The enforcement will require USDOE to conduct daily inspection and implement a more detailed inspection protocol for the containers in the outdoor expansion area and in other illegal units during the period of removal of waste to a compliant DWMU (WAC 713303-320(1). 4. Transportation standards. Current transportation practices of dangerous and mixed waste shipments from Hanford to off-site facilities (e.g., PermaFix) do not conform to USDOT requirements. The enforcement will prohibit the use of the practice of “rolling roadblocks,” a Hanfordclaimed exemption that USDOE is not entitled to use under federal law and that is not in compliance with the state transportation requirements in Chapter 173-303 WAC. 8 5. Permit modifications and prior approval for any new or expanded units. The enforcement will prohibit USDOE from expanding the DWMUs at Hanford, or adding new units to the four SWOC TSD groups without submittal and Ecology approval of a permit modification request under the requirements of WAC 173-303-830. The enforcement will specify that the submittal of a Part A permit application requesting expansion of a DWMU is not compliant with WAC 173-303-830 and cannot be accepted in place of a permit modification request. Options for Enforcement Mechanisms Ecology’s traditional path to enforcement is to prepare a unilateral order and penalty for the violations, and if appealed either settle or proceed with litigation. The HWTR program has developed a new expedited enforcement action order (EEAO) process primarily for matters in which a substantive order is not necessary to have a facility come into compliance with the Dangerous Waste regulations and the facility has demonstrated a willingness to come into compliance with the regulations. This is not an appropriate mechanism for an enforcement of this magnitude. A third approach is to prepare an agreed order with stipulated penalty, schedule limited negotiations for the purpose of fine tuning the requirements, and set deadlines. This innovative approach has been used in the past for circumstances where cross-programmatic issues are involved, and there is a need to set out order provisions or a compliance schedule above and beyond the scope of the dangerous waste regulations. The following is an overview of the two recommended options for your consideration. Attachment 1 to this memo provides a comparison of the two options and the considerations for each. Option 1 – Unilateral Order and Penalty Following the HWTR enforcement policy an RFE memo will be prepared with penalty calculations supported by evidence. A draft administrative order and penalty will be provided with the RFE. This memo will be directed to both program managers for approval in order to ensure programmatic consistency. The RFE and attachments will be reviewed in advance by John Level, Assistant Attorney General. The order’s conditions in a unilateral enforcement are limited to what is authorized under Chapter 70.105 RCW and the Chapter 173-303 WAC. The entity receiving a unilateral enforcement may appeal to the Pollution Control Hearings Board (PCHB). Appeals follow administrative law procedure and include steps for discovery, pre-hearing conferences, and pre-hearing submissions under the guidance of the PCHB. The PCHB encourages settlement discussion, but does not require it. 9 Option 2 – Agreed Order with Stipulated Penalty This option is rarely used and should be carefully considered. An RFE will be prepared that calculates the penalty that would “normally” be issued unilaterally. A recommendation is made for the suspension of a certain amount of the penalty as part of the “stipulation.” USDOE would pay the non-suspended portion of the penalty within an agreed upon period of time. The rest is required to be paid within thirty days of final signature. Order provisions are similar to a unilateral order, with the consideration that Ecology agrees to limited negotiations on the finer details including the compliance schedule. Provisions that extend above and beyond the minimum requirements can be part of the order, for example, guidance, policy, and best management practices can be placed as agreed order provisions. Part of the order is an agreement by the recipient not to appeal any part of the order, pay the reduced penalty up front, and if there is failure to comply with the requirements of the order, the suspended penalty become due. To collect on the suspended penalty, Ecology provides written notification of the violation of the order (and any supporting documentation) and sends a letter and a bill for the remainder of the penalty. If the penalized party disputes its obligation to pay the suspended penalty, payment is generally pursued in superior court, or with private parties, via collection agency. Third Option A third option is open for your consideration and was provided by John Price as a strategy to use existing language in the Hanford Federal Facility Agreement and Consent Order (HFFACO) to achieve the goals recommended in this memo. A description of this third approach is provided in Attachment 2 of this memo and should receive discussion when we meet so that John Price can fully explain to you the considerations for this option. Summary There are many considerations that make option 2 attractive from a management perspective. It makes Ecology appear reasonable, is focused on problem solving, and negotiating with USDOE is a comfortable and familiar approach. If all goes well and USDOE complies with the agreed order, it is a definite win for improved protection of human health and the environment. An agreed order sets precedent for the new permit to include the more stringent provisions, possibly providing pressure for USDOE to refrain from filing appeals of the final permit language for the four SWOC TSD groups. As compliance inspectors we are biased toward option 1 based on the past history of USDOE’s recalcitrance and the challenges of holding USDOE and their contractors to past agreements. The HWTR program looks critically at agreed orders as appropriate only when we need to be: 10 1) Innovative, such as asking for actions above and beyond the requirements of the regulations; and 2) When we have a partner that is both voluntarily compliant and willing to change behaviors. We do not believe this situation meets either of these criteria. USDOE and its contractors have yet to prove they are capable, serious, and truly interested in voluntarily complying with minimum requirements. We question why Ecology would once again negotiate the terms of complying with the regulations in this case. Recalling the problem statements in the first part of this memo, it is clear that the compliance measures are within the minimum requirements for an operating TSD under the regulations. The past twelve years have muddled the administrative record and undermined Ecology’s position on the regulatory status of these critical waste management facilities. Consider that Ecology would be the sole interpreter of a unilateral administrative order, (unless an appeal is heard by the PCHB and a ruling is made), and therefore has the advantage of establishing the point of compliance with certainty for inspectors and permit writers as well as USDOE. USDOE may still appeal the final permit, holding in suspension the (soon to be) improved permit provisions that ensure safe management of mixed waste at the four SWOC TSD groups. A unilateral enforcement could bridge the gap during an appeal, as long as we successfully oppose any “motions to stay” while awaiting a hearing with the PCHB. If your decision is to direct us to prepare an RFE for option 2, we will move forward as you direct with the understanding that we are recommending unilateral enforcement based on all the concerns expressed in this memo. In order to move forward it is critical that you respond with answers to the following questions: 1. Are the stated goals for enforcement clear and do they reflect your position on this matter? 2. What is your preferred approach for achieving compliance? Please let us know if you have any questions or points that need clarification. kag/jb/kc Attachments: Table comparing options 1 and 2 Third option description from John Price cc: John Level Lee Overton 11 Nels Johnson 12