[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Proposed Rules]
[Pages 69569-69572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26480]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 194

[FRL-7844-4]


Waste Characterization Program Documents Applicable to 
Transuranic Radioactive Waste From the Hanford Site for Disposal at the 
Waste Isolation Pilot Plant

AGENCY: Environmental Protection Agency.

ACTION: Notice of availability; opening of public comment period.

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SUMMARY: The Environmental Protection Agency (EPA, we or Agency) is 
announcing the availability of and soliciting public comment for 30 
days on, Department of Energy (DOE) documents applicable to the 
characterization of transuranic (TRU) radioactive solid waste from the 
Plutonium Finishing Plant (PFP) at the Hanford site. The documents are 
available for review in the public dockets listed in SUPPLEMENTARY 
INFORMATION. EPA is issuing this notice because the Agency must conduct 
an expedited review of one of the elements of Hanford's waste 
characterization (WC) processes, known as acceptable knowledge (AK). In 
June 2003, EPA conducted an inspection at Hanford, pursuant to 40 CFR 
194.8, to evaluate the WC processes used for characterizing PFP solid 
waste. However, at that time, EPA did not examine the AK process for 
the same waste. In August 2003, EPA approved all WC components except 
AK for characterizing the PFP solid waste and noted in the approval 
letter that the PFP solid waste may not be disposed of at the WIPP 
because EPA had not examined and approved the AK process. In the 
absence of the EPA approval of this waste, however, in July 2004, the 
Department of Energy (DOE) mistakenly certified this waste stream as 
eligible for disposal at WIPP. As a result, 600 drums of PFP solids 
were emplaced in the WIPP repository between July and September 2004. 
Early in September 2004, the DOE discovered this error and immediately 
suspended the shipment of the PFP solids from Hanford. To meet the 
Agency's regulatory obligations EPA must conduct an ``after-the-fact'' 
review of the AK process to determine adequacy of the AK documentation. 
Therefore, EPA will conduct an evaluation of AK documents and, as 
needed, telephone interviews with site personnel specific to the PFP 
solids to determine Hanford's compliance with EPA's WIPP compliance 
criteria and ensure that the emplacement of this waste has no adverse 
effect on WIPP's performance. EPA's evaluation may lead to an approval 
at which time the site could resume shipment of the PFP solid waste to 
WIPP for disposal. EPA does not believe that the PFP solid wastes 
improperly emplaced at WIPP constitute a threat to human health, to the 
environment or to the long-term performance of the WIPP repository. 
Based on this determination, the Hanford PFP solid waste may remain in 
WIPP while EPA undertakes a desk-top review of the AK information.

[[Page 69570]]


DATES: EPA is requesting public comment on the documents. Comments must 
be received by EPA's official Air Docket on or before December 30, 
2004.

ADDRESSES: Comments may be submitted by mail to: EPA Docket Center 
(EPA/DC), Air and Radiation Docket, Environmental Protection Agency, 
EPA West, Mail Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460. Attention Docket ID No. OAR-2004-0477. Comments may also be 
submitted electronically, by facsimile, or through hand delivery/
courier. Follow the detailed instructions as provided in Unit I.B of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Ms. Rajani D. Joglekar, Office of 
Radiation and Indoor Air, (202) 343-9462. You can also call EPA's toll-
free WIPP Information Line, 1-800-331-WIPP or visit our Web site at 
http://www.epa/gov/radiation/wipp.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OAR-2004-0477. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA 
Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Air and Radiation Docket is (202) 566-1742. These documents are 
also available for review in paper form at the official EPA Air Docket 
in Washington, DC, Docket No. A-98-49, Category II-A2, and at the 
following three EPA WIPP informational docket locations in New Mexico: 
In Carlsbad at the Municipal Library, hours: Monday-Thursday, 10 a.m.-9 
p.m., Friday-Saturday, 10 a.m.-6 p.m., and Sunday, 1 p.m.-5 p.m.; in 
Albuquerque at the Government Publications Department, Zimmerman 
Library, University of New Mexico, hours: vary by semester; and in 
Santa Fe at the New Mexico State Library, hours: Monday-Friday, 9 a.m.-
5 p.m. As provided in EPA's regulations at 40 CFR part 2, and in 
accordance with normal EPA docket procedures, if copies of any docket 
materials are requested, a reasonable fee may be charged for 
photocopying.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.B. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments. However, late 
comments may be considered if time permits.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification,

[[Page 69571]]

EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OAR-
2004-0477. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to <a href="/cdn-cgi/l/email-protection#38591559565c154a155c575b535d4c785d4859165f574e"><span class="__cf_email__" data-cfemail="9ffeb2fef1fbb2edb2fbf0fcf4faebdffaeffeb1f8f0e9">[email protected]</span></a>, Attention Docket ID No. OAR-2004-0477. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    2. By Mail. Send your comments to: EPA Docket Center (EPA/DC), Air 
and Radiation Docket, Environmental Protection Agency, EPA West, Mail 
Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Attention Docket ID No. OAR-2004-0477.
    3. By Hand Delivery or Courier. Deliver your comments to: Air and 
Radiation Docket, EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC, Attention Docket ID No. OAR-
2004-0477. Such deliveries are only accepted during the Docket's normal 
hours of operation as identified in Unit I.A.1.
    4. By Facsimile. Fax your comments to: (202) 566-1741, Attention 
Docket ID. No. OAR-2004-0477.

C. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Background

    DOE operates the WIPP near Carlsbad in southeastern New Mexico as a 
deep geologic repository for disposal of TRU radioactive waste. As 
defined by the WIPP Land Withdrawal Act (LWA) of 1992 (Pub. L. 102-
579), as amended (Pub. L. 104-201), TRU waste consists of materials 
containing elements having atomic numbers greater than 92 (with half-
lives greater than twenty years), in concentrations greater than 100 
nanocuries of alpha-emitting TRU isotopes per gram of waste. Much of 
the existing TRU waste consists of items contaminated during the 
production of nuclear weapons, such as rags, equipment, tools, and 
sludges.
    On May 13, 1998, EPA announced its final compliance certification 
decision to the Secretary of Energy (published May 18, 1998, 63 FR 
27354). This decision stated that the WIPP will comply with EPA's 
radioactive waste disposal regulations at 40 CFR part 191, subparts B 
and C.
    The final WIPP certification decision includes conditions that (1) 
prohibit shipment of TRU waste for disposal at WIPP from any site other 
than the Los Alamos National Laboratory (LANL) until EPA determines 
that the site has established and executed a quality assurance program, 
in accordance with Sec. Sec.  194.22(a)(2)(i), 194.24(c)(3), and 
194.24(c)(5) for WC activities and assumptions (Condition 2 of Appendix 
A to 40 CFR part 194); and (2) prohibit shipment of TRU waste for 
disposal at WIPP from any site other than LANL until EPA has approved 
the procedures developed to comply with the waste characterization 
requirements of Sec.  194.22(c)(4) (Condition 3 of Appendix A to 40 CFR 
part 194). EPA's approval process for waste generator sites is 
described in Sec.  194.8. As part of EPA's decision-making process, the 
DOE is required to submit to EPA appropriate documentation of quality 
assurance and WC programs at each DOE waste generator site seeking 
approval for shipment of TRU radioactive waste to WIPP. In accordance 
with Sec.  194.8, EPA will place such documentation in the official Air 
Docket in Washington, DC, and informational dockets in the State of New 
Mexico for public review and comment.
    In June 2003, EPA inspected Hanford's WC processes used when 
characterizing PFP solid waste. During this inspection, however, EPA 
did not examine the acceptable knowledge (AK) process. EPA inspected 
the other components of the system of controls (radioassay, 
radiography, visual examination, and WIPP Waste Information System) 
implemented by Hanford to demonstrate to EPA and DOE the adequacy of 
its TRU waste characterization program. In an August 7, 2003, letter to 
the Carlsbad Field Office (CBFO), EPA approved Hanford's TRU debris 
waste from the Waste Receiving and Processing Plant and PFP 
characterized using the approved systems and processes covered in the 
June 2003 Inspection Report. In the letter, EPA specifically stated 
that ``EPA has not approved acceptable knowledge for TRU solids, 
specifically ash and mixed oxides, characterized at the PFP facility. 
As a result, DOE may not dispose at the WIPP any ash and mixed oxides 
from the PFP facility.''
    EPA recently discovered that between July 25 and September 4, 2004, 
DOE had shipped and emplaced in the WIPP approximately 1,500 drums of 
PFP solid waste (ash) and mixed oxides from Hanford. The emplacement of 
the PFP solid waste drums at the WIPP repository was based on a DOE 
certification letter to Hanford, dated July 14, 2004. The DOE 
certification letter did not reflect EPA's restriction on disposal of 
Hanford's PFP solid waste stream. This restriction was based on the 
fact that EPA had not fully evaluated, nor approved, AK documentation 
as part of the waste characterization for these solid wastes. Under our 
regulations, without EPA approval, DOE cannot certify any waste from 
TRU waste sites for disposal at the WIPP. Thus, CBFO's certification of 
Hanford PFP solids for disposal at WIPP conflicts with EPA's site 
approval and violates EPA regulations at 40 CFR 194.8 and 24. DOE has 
voluntarily suspended further PFP solid waste shipments from Hanford to 
WIPP and has agreed to take steps to identify the cause of the error 
and prevent recurrence. Nevertheless, significant quantities of this 
waste have already been emplaced at WIPP. EPA must

[[Page 69572]]

assess the AK process to comply with the requirements of 40 CFR part 
194, section 24. EPA does not believe that the PFP solid wastes 
improperly emplaced at WIPP constitute a threat to human health, to the 
environment or to the long-term performance of the WIPP repository. 
Based on this determination, the Hanford PFP solid waste will remain in 
WIPP while EPA undertakes a desk-top review of the AK information for 
the PFP solid wastes.
    With regard to mixed oxides, DOE has clarified that these materials 
are properly categorized as debris waste rather than as part of the PFP 
solid waste stream. Based on documentation provided by the DOE, we 
concur in this determination. The 900 drums of mixed oxides were fully 
characterized using the procedures approved by EPA for debris waste 
(S5000) in our August 7, 2003, letter. Therefore, we find their 
characterization is adequate and no further action is needed to confirm 
that their placement in the WIPP is allowed. For the remaining 600 
drums of ash belonging to the solid waste stream, further evaluation is 
needed to assess the adequacy of waste characterization processes. 
Until EPA completes its review of the AK process for Hanford PFP solids 
and, if warranted, approves the subject waste stream (S3000) for 
disposal at the WIPP, the Agency has directed DOE not to resume 
shipment of the remaining TRU solid waste containers from the Hanford 
PFP.
    In most cases, EPA's inspections are conducted through on-site 
inspections in which the operation of WC equipment and processes can be 
demonstrated. However, the evaluation of AK relies almost exclusively 
on a review of documentation. Thus, while such review is often 
conducted on-site ( for convenience, in conjunction with other on-site 
evaluations), it can be conducted at a remote location with equal ease 
and rigor. This is especially true for AK related to Hanford PFP 
solids. Hanford has not relied on the AK information for physical and 
radiological characterization of the PFP solids; the site relied 
exclusively on spectroscopic systems to establish isotopic ratios. 
(Isotopic ratios are sometime used to estimate individual radionuclides 
when the equipment is not able to quantify them.) Because AK 
information for the waste was not used to derive or extrapolate WC data 
tracked for the waste, we expect little linkage with other WC 
procedures, so there is no need to conduct an on-site inspection. By 
thorough inspection of the AK documents we can determine adequacy, 
completeness, sufficiency, and appropriateness of the AK used for waste 
characterization.
    For this inspection, EPA will conduct a desk-top review of the most 
recent versions of the AK documents applicable to the Hanford PFP solid 
waste that were used by the DOE auditors in June 2003. As necessary, 
EPA will interview by phone the relevant experts at Hanford PFP. 
Evaluation of the AK documentation pertaining to the PFP solids will be 
limited to verification of the waste pedigree--defense determination, 
S3000 waste category determination, absence of liquids confirmation, 
and classification as TRU waste. This evaluation will allow sufficient 
evaluation of the adequacy, completeness, and effectiveness of the 
applicable AK process.
    Through this Federal Register notice, EPA is notifying the public 
that EPA will evaluate Hanford's AK process and procedure specific to 
the PFP solid waste. EPA will perform an inspection of Hanford's AK 
process for the PFP solid waste in accordance with Condition 3 of the 
WIPP Certification. If EPA determines as a result of the evaluation 
that the AK documentation is adequate and is well supported by the 
radioassay, radiography, and visual examination results, we will notify 
DOE by letter and place the letter in the official Air Docket in 
Washington, DC, as well as in the informational docket locations in New 
Mexico. A letter of approval will allow DOE to leave waste in WIPP 
underground panels and to resume disposal of the remaining PFP solid 
waste characterized by the approved processes from Hanford to WIPP. EPA 
will not make a determination of compliance prior to completing its AK 
documentation audit or before the 30-day comment period has closed. We 
have separately directed DOE by letter what measures or restrictions 
are necessary to prevent recurrence of such violations of EPA's site-
specific waste characterization requirements. This letter is available 
in Docket A-98-49 (Washington, DC, and our three locations in New 
Mexico), as well as online at the EDOCKET Web site (http://www.epa.gov/edocket) in Docket ID No. OAR-2004-0477.
    Information on the certification decision is filed in the official 
EPA Air Docket, Docket No. A-93-02 and is available for review in 
Washington, DC, and at three EPA WIPP informational docket locations in 
New Mexico. The dockets in New Mexico contain only major items from the 
official Air Docket in Washington, DC, plus those documents added to 
the official Air Docket since the October 1992 enactment of the WIPP 
LWA.

    Dated: November 23, 2004.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 04-26480 Filed 11-29-04; 8:45 am]
BILLING CODE 6560-50-P


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