May 13, 1992

This is in response to your request that we review issues presented by the State of New Mexico concerning the Waste Isolation Pilot Plant (WIPP).

We have reviewed the letter from New Mexico and the labor union petitions. We have also had discussions with the federal agencies involved and reviewed various relevant laws and regulations.

It is our understanding that the WIPP in Carlsbad, New Mexico, will not commence test operations for at least another year. Consequently, there is certainly sufficient time for any safety reviews which the New Mexico Occupational Health and Safety Bureau may believe are necessary.

WIPP will store and process wastes. The Department of Energy, of course, has primary responsibility for transporting, handling and processing such materials. Elaborate NRC, DOT, DOE, and FEMA regulations and procedures already exist for the safe packaging and transporting of such materials.

DOE has indicated to us that they do not regulate emergency responders located on the routes these materials are shipped. (NRC, which has responsibility for civilian nuclear wastes, has indicated that they do not license such emergency responders). Consequently, 29 CFR 1910.120(q), or its EPA or state plan state equivalents, are applicable to emergency responders who may work for state and local governments or private or volunteer emergency responders who may respond to emergency spills of nuclear hazardous substances transported to WIPP.

The New Mexico letter has not mentioned any particular issue which would require a special interpretation of 29 CFR 1910.120. We believe that the standards requirements and various interpretations are generally applicable to this situation. If particular unique problems arise that require interpretation, we will of course provide them.

We have had extensive discussion with DOE (regarding waste transportation). They have indicated the wastes are transported in containers which meet NRC requirements. They have stated that the transporting company is under contract with them, and that the drivers are specially trained and have sophisticated communication and monitoring equipment. They have also stated that they have an emergency response plan and that they provide special supplementary emergency response training on the problems presented by radioactive materials to police, fire, EMT, hospital and other possible emergency responders along the designated transportation routes. DOE also provides additional equipment which may be needed for responses to possible emergencies involving radioactive materials. This program is called the State Training and Education Program (STEP).

In general, DOE indicated that the local emergency responders would take actions up to, at maximum, first responder operation level. More difficult response actions would be taken by DOE employees who are trained to greater than HAZMAT specialist or incident commander levels.

The State of New Mexico Occupational Health and Safety Bureau may wish to review the training and equipment provided to local emergency responders in the context of the plan that will be implemented. They will then be in position to see if local responders meet the New Mexico Hazard Waste Operations and Emergency Response regulation.

We understand there are a number of local interagency and inter-government committees set up to handle WIPP situations. There are also DOE personnel in both New Mexico, and the Washington D.C. area, who are very familiar with the DOE emergency response plan and training. If New Mexico has not already done so, it may wish to discuss the matter with the relevant DOE officials and the local committees.

The National Response Team (NRT) is in the best position to handle questions of a regional or national concern which require interagency or intergovernmental coordination in this area. The NRT which has an OSHA representative, could then bring forward questions to OSHA as they arise.

[Corrected 4/10/2003]