Nevada Test Site Consent Order (Federal Facility Agreement and Consent Order - Ffaco)

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 1 TABLE OF CONTENTS 7 LIST OF ACRONYMS ................................................................................. ..................................... v 15 IV. STATEMENT OF FACTS ANDCONCLUSIONS OF LAW ...................... 2 18 5.1 Statement of Purpose ...................................... 3 21 5.3.1 Establishment of Compliance Schedules .. .................................................... 4 22 5.3.2 Milestones and Target Dates .. ........................................................................ 4 23 5.3.3 Definition of Milestones................................................. 4 24 5.3.4 Definition of Target Dates............................................................................... 4 25 5.3.5 Approach to Setting Milestones and Target Dates ...................................... 4 26 5.3.6 Categories of Milestones and Target Dates................................................... 5 27 5.3.6.1 Plans Where Treatment Technology Exists .................... 5 28 5.3.6.2 Plans Where Technology Must Be Developed .................. 6 29 S.3.6.3 Plans for Radionuclide Separation..................................... 6 30 S.3.6.4 Plans for Potential Mixed Waste AwaitingFurther 37 5.4.4 Requests for Approval ........................... 11 38 5.4.5 Public Review of Updated STP.................................................................... 11 39 5.5 Adding or Removing Waste Streams ............................................ 12

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NEVADA TEST SITE 1 5.5.2 New Waste Stream Notification .................................................... 12 2 5.5.3 Removing Waste Streams............................................................................. 12 7 5.6.1 Description of Revisions ............................... 14 8 5.6.2 Execution of a Revision ....................... 14 9 5.7 DOE/NV’s National Environmental Policy Act (NEPA) Review and 11 5.7.1 Current DOE/NV NEPA Activities............................................................. 15 12 5.7.2 Subsequent Requirements or Actions ......................................................... 16 13 5.7.3 Changes per Public Comment ..................... 16 15 VI. PROJECT MANAGERS ........................................................................................... 16 16 6.1 Project Manager Selection ........................... 16 17 6.2 Project Manager Authority ................................... 16 18 6.3 Results of Project Manager’s Meetings .............................. 17 19 6.4 Project Manager Disputes.......................................................................... 17 21 YD. METHOD OF NOTIFICATION .......................................... 17 23 vm. PROCEDURE FOR REVIEW AND APPROVAL ............................. 17 25 8.2 Receipt of Deliverables .............................................................................................. 18 26 8.3 Review of Deliverables .............. 18 27 8.4 Deliverables Not Requiring Approval ............................... 18 28 8.5 Deliverables Requiring Approval .......................................................................... 18 29 8.5.1 Approve, Approve with Modifications, or Disapprove .......................... 19 30 8.5.2 Approval Without Response........................................................................ 19 31 8.5.3 Deliverable Returned With Comments ....................................................... 19 34 9.1 Consequences of Failure to Comply .......................................................... 20 35 9.2 Acknowledgement of Enforcement ....................................................... 20 38 X. AMENDMENT, MODIFICATION, AND TERMINATION ............................................ 20 39 10.1 Terms of Amendments Or Modification ........... 20 March 28, 1995 Page ii

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 1 10.3 Notification of Termination.................................................................. 21 2 10.4 Changes In Laws ................................................................... 21 5 XL DELAYS AND EXTENSIONS IN ACHIEVING COMPLIANCE ............................... 21 6 11.1 Notice of Delay ..................................................... 21 7 11.2 Description of Unforeseen Delays ............................................................................. 22 8 11.3 Request for Extensions ................................................. 23 9 11.4 Extensions versus Revisions ..................................................................................... 23 14 12.2 Dispute Resolution Reconciliation............................................................................ 24 15 12.3 Initiating Dispute Resolutions ................................................................................... 24 16 12.4 Levels of Authority for Resolving Disputes............................................................ 24 18 12.6 Time Lines of Appeal ............................................................................... 25 22 13.1 Approach to STP Funding Requirements.......................... 25 25 XIV. COVENANTS AND RESERVATIONS............. .................................................................. 26 March 28, 1995 Page iii

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 LIST OF TABLES Table 1 Schedule for Wastes with Existing Treatment Technologies ................................... 5 Table 2 Schedule for Mixed Waste without Existing Treatment Technologies ................... 6 Table 3 Schedule for Radionuclide Separation of Mixed Wastes......................................... 7 Table 4 Process for Potential Mixed Waste Awaiting Further Characterization ............. 8

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 1 LIST OF ACRONYMS 5 C.F.R. Code of Federal Regulations 6 CO Consent Order 7 DOE U.S. Department of Energy 8 DOE/NV DOE Nevada Operations Office 9 EA Environmental Assessment 10 EIS Environmental Impact Statement 11 EPA U.S. Environmental Protection Agency 12 FFCAct Federal Facility Compliance Act 13 LDR Land Disposal Restriction 14 MTRU Mixed Transuranic 15 NAC Nevada Administrative Code 16 NDEP Nevada Division of Environmental Protection 17 NEPA National Environmental Policy Act 18 NRS Nevada Revised Statute 19 NTS Nevada Test Site 20 PEIS Programmatic Environmental Impact Statement 22 R&D Research and Development 23 RCRA Resource Conservation and Recovery Act 24 ROD Record of Decision 25 STP Site Treatment Plan 27 U.S.C. United States Code 28 WIPP Waste Isolation Pilot Plant

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 THE STATE OF NEVADA DIVISION OF ENVIRONMENTAL PROTECTION UNITED STATES DEPARTMENT OF ENERGY In the Matter of: ) DEPARTMENT OF ENERGY ) Nevada Test Site ) Nevada Code § a. The state of Nevada and the U.S. Department of Energy (DOE), “the Parties,” enter into this Consent Order (CO) regarding DOE Nevada Operations Office’s (DOE/NV’s) Nevada Test Site (NTS) and selected government-owned sites around the NTS located in Nye County, Nevada, approximately 65 miles northwest of Las Vegas at Mercury, Nevada. a. DOE and the state enter into this CO pursuant to Nevada Revised Statutes (NRS) §§459.400 - 459.600, Nevada Administrative Code (NAC) §§444.842 - 444.960, and the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., and the Federal Facility .Compliance Act (FFCAct) of 1992, Pub. L. No. 102386, 106 Stat. 1505 (1992), which requires each department, agency, and instrumentality of the federal government engaged in the disposal or management of hazardous waste to comply with all federal and state requirements respecting the control and abatement of hazardous waste disposal and management, 42 United States Code (U.S.C.) §6961, Executive Order 12088. DOE, a department of the executive branch of the federal government, owns and operates the NTS, a nuclear testing and research facility located at Mercury, Nevada. b. The state administers a hazardous waste management program pursuant to NRS §§459.400 - 459.600 and NAC §§444.842 - 444.960. The state of Nevada is authorized, pursuant to RCRA, to administer this hazardous waste management program, (identify the federal register number naming Nevada as a RCRA authorized state). DOE generates, transports, and

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 manages hazardous waste at the NTS and is, therefore, subject to and must comply with all applicable federal and state requirements respecting hazardous waste including NRS c. DOE agrees not to contest the jurisdictional elements of this CO or seek administrative or judicial review of this CO. d. The state and DOE agree that this CO fulfills the requirements contained in the FFCAct of §3021(b)(5)), it is the intent of the Parties that this CO shall stand in lieu of any interpretations of DOE’s requirements to develop and submit a plan for the development of treatment capacities and technologies pursuant to RCRA §3021. Except as explicitly stated herein, the terms used in this CO shall have the same meaning as used in Agency’s (EPA) Rules and Regulations, 40 C.F.R. Parts 124, 260-268, and 270; and the DOE/NV Site Treatment Plan (STP). IV. STATEMENT OF FACTS AND CONCLUSIONS OF LAW a. The DOE owns and is responsible for the operation of the NTS. hazardous waste that is prohibited from one or more methods of land disposal, the storage of waste restricted from land disposal is prohibited unless such storage is solely for the purpose of accumulation of quantities of hazardous materials as necessary to facilitate proper recovery, treatment, or disposal. c. DOE is currently constructing or planning to construct or obtain facilities that shall treat and/or dispose of the wastes described in the STP to meet the Land Disposal Restriction d. DOE and the state are currently negotiating a Federal Facilities Agreement for the future generation of mixed waste by the environmental restoration program at the NTS. e. DOE and the state have negotiated compliance requirements for transuranic (TRU) waste currently stored at the NTS, whereby DOE constructed an asphalt pad for storing TRU waste as stated in the Settlement Agreement, 1992.

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 2 f. The state has given DOE authority to temporarily store mixed waste on the TRU Waste 3 Storage Pad until such time as treatment technologies have been identified and applied for 4 meeting LDR standards as stated in the Mutual Consent Agreement. 8 5.1 Statement of Purpose 10 The purposes of this CO are to: 12 a. Fulfill the requirements of the FFCAct and other applicable requirements of federal and state 13 hazardous waste laws and regulations for matters covered herein; 15 b. Establish an enforceable framework in which DOE shall develop and apply treatment or 16 otherwise meet LDR standards for all covered LDR mixed wastes currently in storage and to 17 be generated or received in the future; and, 19 c. Provide for storage of current and projected covered LDR mixed wastes at the NTS, pending 20 the development of treatment technology or capacity and ultimate treatment or other 21 disposition of such wastes according to LDR standards during the term of this CO. 23 The purpose of this CO is intended to be achieved through a STP. The STP is comprised of two 24 volumes. The Background Volume (BV) contains general site information and is unenforceable per 25 this CO between DOE and the state of Nevada. The Plan Volume (PV) contains the overall schedules 26 for achieving compliance with the LDR standards that shall be enforced under this CO. The 27 procedures for establishing schedules and adding or deleting waste streams in the PV of the STP, as 28 well as administrative procedures, are contained in this CO. 32 This CO shall apply to wastes at the NTS that are specifically identified in the PV of the STP and any 33 subsequent waste streams added to the PV of the STP per Section 5.5, Adding or Removing Waste 34 Streams. This CO addresses standards pertaining to the storage and treatment of such wastes, whether 35 such wastes were generated or accumulated in the past or present, as well as other compliance matters. -

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 3 5.3.1 Establishment of Compliance Schedules 5 The PV of the STP provides overall schedules for achieving compliance with LDR standards for 6 mixed wastes at the NTS. The schedules include those activities required to bring existing waste 7 treatment facilities or technologies into operation and those required to develop new facilities and 8 capacity for characterization and treatment. The schedules show target dates and milestones for 9 treatment technologies and facilities for wastes covered under the PV of the STP. The schedule 10 symbolically depicts and differentiates among milestones and target dates which shall be converted to 11 milestones. Other schedule information may be depicted in the BV of the STP, but such information 12 is provided solely for informational purposes. 14 5.3.2 Milestones and Target Dates 16 For the purposes of this CO, milestones and target dates shall identify specific dates on which certain 17 activities are scheduled to occur, as identified in the PV of the STP, or any other dates or deliverables 18 that are properly incorporated into this CO by agreement of the Parties. Nonenforceable 19 commitments such as target dates are not subject to citizen suits under RCRA. 21 5.3.3 Definition of Milestones 23 Milestones are fixed, firm, and enforceable dates as set forth in the PV of the STP. Revisions to PV 24 milestones are subject to approval, approval with modifications, or disapproval by the state according 25 to the procedures in this CO. Only one milestone is enforceable and effective at any time for each 26 treatment capacity identified in the PV and schedules. Subsequent activities associated with each 27 treatment facility are identified as target dates, defined in Section 5.3.4, Definition of Target Dates. 29 5.3.4 Definition of Target Dates 31 Target dates mark the anticipated completion of tasks thathave notbeendesignated asmilestones. 32 Target dates correspond to the categories of milestonesset forth inSection 5.3.6,Categories of 33 Milestones and Target Dates, and are unenforceable. Target dates are converted into enforceable 34 milestones relative to the procedures specified in this CO. 36 5.3.5 Approach to Setting Milestones and Target Dates 38 DOE/NV proposes using the rolling milestone approach outlined in the addendum to the STP, 39 Milestone Approach and Budget Formulation Process.

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5.3.6 Categories of Milestones and Target Dates The categories of activities for which milestones and target dates will be provided for different types of treatment approaches in the Compliance PV are listed in the Tables 1 through 4 and in other provisions below. The categories of activities are based on Section 3021(b)(l)(B)(i), (ii) and (iii) of RCRA, to the extent appropriate. Depending upon the status of the facility (e.g., operating under interim status or at differing stages of development), for a particular facility or treatment option, certain types of target dates or milestones may not be necessary, the activities may appear in a different order, or an alternative activity more appropriate to the facility or treatment approach may be provided as a target date or milestone. 5.3.6.1 Plans Where Treatment Technology Exists The Parties expressly recognize that treatment technologies have been identified and developed for some of the mixed wastes currently being generated and stored at the NTS. For other mixed wastes, there are either no available technologies or the treatment technology must be modified or adapted to be made available for mixed waste. If there are mixed wastes for which treatment technologies have been identified and developed, a schedule is required for the submission of all permit applications, entering into contracts, initiating construction, conducting systems testing, commencing operations, and processing backlogged and currently generated wastes. For wastes that shall be treated onsite, categories of milestones and target dates identified in Table 1, Schedule for Wastes with Existing Treatment Technologies, shall apply. Table 1 Schedule for Wastes with Existing Treatment Technologies NEVADA TEST SITE CONSENT ORDER •' OCTOBER 1985 Categories of Milestones/Target Dates: a. Submit RCRA Permit applications to the state. d. Commence systems testing. f. Submit for approval a schedule for processing backlogged and currently generated mixed

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NEVADA TEST SITE CONSENT ORDER OCTOBER 1995 S.3.6.2 Plans Where Technology Must Be Developed If there are mixed wastes for which no treatment technologies have been identified and developed or for which treatment technology must be modified or adapted and made available for mixed waste, a schedule is required for identifying and developing technologies; generating the funding requirements for identifying, developing, modifying, or adapting technologies; submitting treatability study exemptions; and submitting research and development permit applications. For these wastes that shall be treated onsite, those categories of milestones and target dates identified in Table 2, Schedule for Waste without Existing Treatment Technologies, shall apply. Table 2 Schedule for Mixed Waste without Existing Treatment Technologies Categories of Milestones/Target Dates: a. Identify funding requirements for identification and development of technology. b. Identify and develop technology. c. Submit treatability study exemptions. d. Submit Research and development (RD&D) permit applications. e. Submit schedule for treatment in accordance with Table 1 or new schedule for development of alternative treatment technologies in accordance with this section. S.3.6.3 Plans for Radionuclide Separation The FFCAct sets additional requirements in cases when DOE/NV intends to conduct radionuclide separation of mixed waste. No current plans exist to conduct radionuclide separation of mixed wastes generated or stored at the NTS. Should DOE/NV determine that it intends to conduct radionuclide separation of such wastes, DOE/NV shall provide an estimate of the volume of waste generated by each case of radionuclide separation and the estimated costs of waste treatment if radionuclide separation is …