70584 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This rule is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects 

40 CFR Part 9 

Environmental protection, Reporting 

and recordkeeping requirements. 

40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements. 

Dated: November 10, 2010. 

Wendy C. Hamnett, 

Director, Office of Pollution Prevention and 

Toxics. 

■ Therefore, 40 CFR parts 9 and 721 are 

amended as follows: 

PART 9—[AMENDED] 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 7 U.S.C. 135 et seq., 136–136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345(d) and 

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 

1971–1975 Comp. p. 973; 42 U.S.C. 241, 

242b, 243, 246, 300f, 300g, 300g–1, 300g–2, 

300g–3, 300g–4, 300g–5, 300g–6, 300j–1, 

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., 

6901–6992k, 7401–7671q, 7542, 9601–9657, 

11023, 11048. 

■ 2. The table in § 9.1 is amended by 

removing under the undesignated center 

heading ‘‘Significant New Uses of 

Chemical Substances’’ § 721.10201. 

PART 721—[AMENDED] 

■ 3. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, and 

2625(c). 

§ 721.10201 [Removed] 

■ 4. Remove § 721.10201. 

[FR Doc. 2010–29147 Filed 11–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 194 

[EPA–HQ–OAR–2009–0330; FRL–9227–4] 

Criteria for the Certification and 

Recertification of the Waste Isolation 

Pilot Plant’s Compliance With the 

Disposal Regulations: Recertification 

Decision 

AGENCY: Environmental Protection 

Agency. 

ACTION: Recertification decision. 

SUMMARY: With this document, the 

Environmental Protection Agency (EPA) 

recertifies that the U.S. Department of 

Energy’s (DOE) Waste Isolation Pilot 

Plant (WIPP) continues to comply with 

the ‘‘Environmental Standards for the 

Management and Disposal of Spent 

Nuclear Fuel, High-Level and 

Transuranic (TRU) Radioactive Waste.’’ 

EPA initially certified that WIPP met 

applicable regulatory requirements on 

May 18, 1998, and the first shipment of 

waste was received at WIPP on March 

26, 1999. The first Compliance 

Recertification Application (CRA) was 

submitted by DOE to EPA on March 26, 

2004, and the Agency’s first 

recertification decision was issued on 

March 29, 2006. 

DATES: Effective November 18, 2010. 

FOR FURTHER INFORMATION CONTACT: Ray 

Lee or Jonathan Walsh, Radiation 

Protection Division, Mail Code 6608J, 

U.S. Environmental Protection Agency, 

1200 Pennsylvania Avenue, 

Washington, DC 20460; telephone 

number: 202–343–9463 or 202–343– 

9238; fax number: 202–343–2305; e-mail 

address: lee.raymond@epa.gov or 

walsh.jonathan@epa.gov. Copies of the 

Compliance Application Review 

Documents (CARDs) supporting today’s 

action and all other recertificationrelated documentation can be found in 

the Agency’s electronic docket found at 

http://www.regulations.gov (FDMS 

Docket ID No. EPA–HQ–OAR–2009– 

0330) or on its WIPP Web site (http:// 

www.epa.gov/radiation/wipp). 

SUPPLEMENTARY INFORMATION: EPA 

initially certified that WIPP met 

applicable regulatory requirements on 

May 18, 1998 (63 FR 27354), and the 

first shipment of waste was received at 

WIPP on March 26, 1999. The first 

Compliance Recertification Application 

(CRA) was submitted by DOE to EPA on 

March 26, 2004, and the Agency’s first 

recertification decision was issued on 

March 29, 2006 (71 FR 18010–18021). 

This action represents the Agency’s 

second periodic evaluation of WIPP’s 

continued compliance with the disposal 

regulations and WIPP Compliance 

Criteria. The compliance criteria 

implement and interpret the disposal 

regulations specifically for WIPP. As 

directed by Congress in the WIPP Land 

Withdrawal Act (LWA), this 

‘‘recertification’’ process will occur five 

years after the WIPP’s initial receipt of 

TRU waste (March 26, 1999), and every 

five years thereafter (e.g., March 2004, 

March 2009) until the end of the 

decommissioning phase. For each 

recertification—including the one being 

announced with today’s action—DOE 

must submit documentation of the site’s 

continuing compliance with the 

disposal regulations to EPA for review. 

In accordance with the WIPP 

Compliance Criteria, documentation of 

continued compliance was made 

available in EPA’s dockets, and the 

public was provided at least a 30-day 

period in which to submit comments. In 

addition, all recertification decisions 

must be announced in the Federal 

Register. According to the WIPP LWA, 

Section 8(f), these periodic 

recertification determinations are not 

subject to rulemaking or judicial review. 

This action is not a reconsideration of 

the decision to open WIPP. Rather, 

recertification is a process that evaluates 

changes at WIPP to determine if the 

facility continues to meet all the 

requirements of EPA’s disposal 

regulations. The recertification process 

ensures that WIPP’s continued 

compliance is demonstrated using the 

most accurate, up-to-date information 

available. 

This recertification decision is based 

on a thorough review of information 

submitted by DOE, independent 

technical analyses, and public 

comments. The Agency has determined 

that DOE continues to meet all 

applicable requirements of the WIPP 

Compliance Criteria, and with this 

notice, recertifies the WIPP facility. This 

recertification decision does not 

otherwise amend or affect EPA’s 

radioactive waste disposal regulations 

or the WIPP Compliance Criteria. 

Table of Contents 

I. General Information 

II. What is WIPP? 

A. 1998 Certification Decision 

B. 2006 Recertification Decision 

III. With which regulations must WIPP 

comply? 

A. Radioactive Waste Disposal Regulations 

& Compliance Criteria 

B. Compliance With Other Environmental 

Laws and Regulations 

IV. What has EPA’s role been at WIPP since 

the 1998 certification decision? 

A. Continuing Compliance 

B. Annual Change Reports 


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Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 70585 

1 Department of Energy National Security and 

Military Applications of Nuclear Energy 

Authorization Act of 1980, Public Law 96–164, 

section 213. 

2WIPP Land Withdrawal Act, Public Law 102– 

579, section 2(18), as amended by the 1996 WIPP 

LWA Amendments, Public Law 104–201. 

3WIPP LWA, section 8(b). 

4 50 FR 38066–38089 (September 19, 1985) and 

58 FR 66398–66416 (December 20, 1993). 

5 61 FR 5224–5245 (February 9, 1996). 

6WIPP LWA, section 8(d). 

C. Monitoring the Conditions of 

Compliance 

D. Inspections and Technical Exchanges 

V. What is EPA’s 2010 recertification 

decision? 

A. What information did the Agency 

examine to make its final decision? 

B. Content of the Compliance 

Recertification Application (§§ 194.14 

and 194.15) 

C. Performance Assessment: Modeling and 

Containment Requirements (§§ 194.14, 

194.15, 194.23, 194.31 through 194.34) 

D. General Requirements 

E. Assurance Requirements (§§ 194.41 

Through 194.46) 

F. Individual and Groundwater Protection 

Requirements (§§ 194.51 Through 

194.55) 

VI. How has the public been involved in 

EPA’s WIPP recertification activities? 

A. Public Information 

B. Stakeholder Meetings 

C. Public Comments on Recertification 

VII. Where can I get more information about 

EPA’s WIPP-related activities? 

A. Supporting Documents for 

Recertification 

B. WIPP Web Site & WIPP–NEWS E-mail 

Listserv 

C. Dockets 

VIII. What happens next for WIPP? What is 

EPA’s role in future WIPP activities? 

I. General Information 

A. How can I get copies of this 

document and other related 

information? 

1. Docket. EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0330. 

Publicly available docket materials are 

available either electronically at http:// 

www.regulations.gov or in hard copy 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. 

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/. 

II. What is WIPP? 

The Waste Isolation Pilot Plant 

(WIPP) is a disposal system for defenserelated transuranic (TRU) radioactive 

waste. Developed by the Department of 

Energy (DOE), WIPP is located near 

Carlsbad in southeastern New Mexico. 

At WIPP, radioactive waste is disposed 

of 2,150 feet underground in an ancient 

salt layer which will eventually creep 

and encapsulate the waste. WIPP has a 

total capacity of 6.2 million cubic feet 

of waste. 

Congress authorized the development 

and construction of WIPP in 1980 ‘‘for 

the express purpose of providing a 

research and development facility to 

demonstrate the safe disposal of 

radioactive wastes resulting from the 

defense activities and programs of the 

United States.’’ 1 The waste which may 

be emplaced in the WIPP is limited to 

TRU radioactive waste generated by 

defense activities associated with 

nuclear weapons; no high-level waste or 

spent nuclear fuel from commercial 

power plants may be disposed of at the 

WIPP. TRU waste is defined as materials 

containing alpha-emitting radioisotopes, 

with half lives greater than twenty years 

and atomic numbers above 92, in 

concentrations greater than 100 nanocuries per gram of waste.2

Most TRU waste proposed for 

disposal at the WIPP consists of items 

that have become contaminated as a 

result of activities associated with the 

production of nuclear weapons (or with 

the clean-up of weapons production 

facilities), e.g., rags, equipment, tools, 

protective gear, and organic or inorganic 

sludges. Some TRU waste is mixed with 

hazardous chemicals. Some of the waste 

proposed for disposal at the WIPP is 

currently located at Federal facilities 

across the United States, including 

locations in California, Idaho, Illinois, 

New Mexico, Nevada, Ohio, South 

Carolina, Tennessee, and Washington. 

The WIPP LWA, passed initially by 

Congress in 1992 and amended in 1996, 

is the statute that provides EPA the 

authority to oversee and regulate the 

WIPP. (Prior to the passage of the WIPP 

LWA in 1992, DOE was self-regulating 

with respect to WIPP; that is, DOE was 

responsible for determining whether its 

own facility complied with applicable 

regulations for radioactive waste 

disposal.) The WIPP LWA delegated to 

EPA three main tasks, to be completed 

sequentially, for reaching an initial 

compliance certification decision. First, 

EPA was required to finalize general 

regulations which apply to all sites— 

except Yucca Mountain—for the 

disposal of highly radioactive waste.3

These disposal regulations, located at 

subparts B and C of 40 CFR part 191, 

were published in the Federal Register 

in 1985 and 1993.4

Second, EPA was to develop criteria, 

by rulemaking, to implement and 

interpret the general radioactive waste 

disposal regulations specifically for the 

WIPP. In 1996, the Agency issued the 

WIPP Compliance Criteria, which are 

found at 40 CFR part 194.5

Third, EPA was to review the 

information submitted by DOE and 

publish a certification decision.6 The 

Agency issued its certification decision 

on May 18, 1998, as required by Section 

8 of the WIPP LWA (63 FR 27354– 

27406). 

A. 1998 Certification Decision 

The WIPP LWA, as amended, 

required EPA to evaluate whether the 

WIPP site complied with EPA’s 

standards for the disposal of radioactive 

waste. On May 18, 1998 (63 FR 27354– 

27406), EPA determined that the WIPP 

met the standards for radioactive waste 

disposal. This decision allowed the 

emplacement of radioactive waste in the 

WIPP to begin, provided that all other 

applicable health and safety standards, 

and other legal requirements, had been 

met. The first shipment of TRU waste 

was received at WIPP on March 26, 

1999. 

Although EPA determined that DOE 

met all of the applicable requirements of 

the WIPP Compliance Criteria in its 

original certification decision (63 FR 

27354–27406; May 18, 1998), EPA also 

found that it was necessary for DOE to 

take additional steps to ensure that the 

measures actually implemented at the 

WIPP (and thus the circumstances 

expected to exist there) were consistent 

with DOE’s Compliance Certification 

Application (CCA) and with the basis 

for EPA’s compliance certification. To 

address these situations, EPA amended 

the WIPP Compliance Criteria, 40 CFR 

part 194, and appended four explicit 

conditions to its certification of 

compliance for the WIPP. 

Condition 1 of the certification 

applies to the panel closure system, 

which is intended, over the long-term, 

to block brine flow between waste 

panels in WIPP. In the CCA, DOE 

presented four options for the design of 

the panel closure system, but did not 

specify which one would be constructed 

at the WIPP facility. The Agency based 


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70586 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 

its certification decision on DOE’s use of 

the most robust design (referred to in 

the CCA as ‘‘Option D’’). Condition 1 of 

EPA’s certification required DOE to 

implement the Option D panel closure 

system at WIPP, with Salado mass 

concrete replacing fresh water concrete. 

Conditions 2 and 3 of the final 

certification decision apply to activities 

conducted at waste generator sites that 

produce TRU waste proposed for 

disposal at WIPP. The WIPP 

Compliance Criteria (§§ 194.22 and 

194.24) require DOE to have, in place, 

a system of controls to measure and 

track important waste components, and 

to apply quality assurance (QA) 

programs to waste characterization 

activities. These two Conditions state 

that EPA must separately approve the 

QA programs for other generator sites 

(Condition 2) and the waste 

characterization system of controls for 

other waste streams (Condition 3). The 

approval process includes an 

opportunity for public comment, and an 

inspection or audit of the waste 

generator site by EPA. The Agency’s 

approvals of waste characterization 

systems of controls and QA programs 

are conveyed by letter from EPA to DOE. 

EPA also made changes to the 

compliance criteria in July 2004 (69 FR 

42571–42583). These new provisions 

provide equivalent or improved 

oversight and better prioritization of 

technical issues in EPA inspections to 

evaluate waste characterization 

activities at DOE WIPP waste generator 

sites. The new provisions also offer 

more direct public input into EPA’s 

decisions about what waste can be 

disposed of at WIPP. The Agency 

continues to conduct independent 

inspections to evaluate a site’s waste 

characterization capabilities, consistent 

with Conditions 2 and 3. 

Condition 4 of the certification 

applies to passive institutional controls 

(PICs). The WIPP Compliance Criteria 

require DOE to use both records and 

physical markers to warn future 

societies about the location and contents 

of the disposal system, and thus to deter 

inadvertent intrusion into the WIPP 

(§ 194.43). In the CCA, EPA allowed 

DOE to delay submission of a final PICs 

design. Condition 4 of the certification 

requires DOE, prior to the submission of 

the final recertification application, to 

submit a revised schedule showing that 

markers and other measures will be 

implemented as soon as possible after 

closure of the WIPP. The Department 

also must provide additional 

documentation showing that it is 

feasible to construct markers and place 

records in archives as described in the 

CCA. After WIPP’s closure, DOE will 

not be precluded from implementing 

additional PICs beyond those described 

in the application. DOE recently 

requested a delay for all PICs activities 

until approximately ten years prior to 

the decommissioning of the WIPP 

facility (which is currently anticipated 

in 2033). EPA approved the delay 

(March 7, 2008; Air Docket A–98–49, 

Item II–B2–67), with the condition that 

it was based on current projections and 

activities and also revised the schedule 

that was proposed originally in 

November 2002 (Air Docket A–98–49, 

Item II–B3–41). This schedule not only 

gave DOE more time to seek out the 

most viable PICs options, but also 

ensured that testing and research is in 

fact being done and reported to EPA on 

a regular basis. 

The complete record and basis for 

EPA’s 1998 certification decision can be 

found in Air Docket A–93–02. 

B. 2006 Recertification Decision 

After the 1998 certification decision, 

EPA continued to conduct ongoing 

independent technical review and 

inspections of all WIPP activities related 

to compliance with the EPA’s disposal 

regulations. The initial certification 

decision identified the starting 

(baseline) conditions for WIPP and 

established the waste and facility 

characteristics necessary to ensure 

proper disposal in accordance with the 

regulations. At that time, EPA and DOE 

understood that future information and 

knowledge gained from the actual 

operation of WIPP would result in 

changes to the best practices and 

procedures for the facility. In 

recognition of this, section 8(f) of the 

amended WIPP LWA requires EPA to 

evaluate all changes in conditions or 

activities at WIPP every five years to 

determine if WIPP continues to comply 

with EPA’s disposal regulations for the 

facility. 

The first recertification process, 

which occurred in 2004–2006, included 

a review of all of the changes made at 

the WIPP facility since the original 1998 

EPA certification decision to the 

submittal of the initial CRA. The 

Agency received DOE’s first CRA on 

March 26, 2004. On May 24, 2004, EPA 

announced the availability of the CRA– 

2004 and EPA’s intent to evaluate 

compliance with the disposal 

regulations and compliance criteria in 

the Federal Register (69 FR 29646– 

29649). At that time, EPA also began 

accepting public comments on the 

application. Following over a year of 

requests for additional information from 

DOE, EPA issued its completeness 

determination for the CRA–2004 on 

September 29, 2005 (70 FR 61107– 

61111). ‘‘Completeness determinations’’ 

are solely administrative steps and do 

not reflect any conclusion regarding 

WIPP’s continued compliance with the 

disposal regulations. 

All completeness determinations are 

made using a number of the Agency’s 

WIPP-specific guidances; most notably, 

the ‘‘Compliance Application Guidance’’ 

(CAG; EPA Pub. 402–R–95–014) and 

‘‘Guidance to the U.S. Department of 

Energy on Preparation for 

Recertification of the Waste Isolation 

Pilot Plant with 40 CFR parts 191 and 

194’’ (Docket A–98–49, Item II–B3–14; 

December 12, 2000). Both guidance 

documents include guidelines 

regarding: (1) Content of certification/ 

recertification applications; 

(2) documentation and format 

requirements; (3) time frame and 

evaluation process; and (4) change 

reporting and modification. The Agency 

developed these guidance documents to 

assist DOE with the preparation of any 

compliance application for the WIPP. 

They are also intended to assist in EPA’s 

review of any application for 

completeness and to enhance the 

readability and accessibility of the 

application for EPA and public scrutiny. 

Following the September 2005 

completeness determination, EPA began 

its in-depth technical review on the 

CRA–2004 using the entire record 

available to the Agency, which is 

located in EPA’s official Dockets (FMDS 

Docket ID No. EPA–HQ–OAR–2004– 

0025 found at http:www.regulations.gov, 

and also Air Docket A–98–49). Much of 

the CRA–2004 documentation was also 

placed on the Agency’s WIPP Web site 

(http://www.epa.gov/radiation/wipp/ 

2004application.html and http:// 

www.epa.gov/radiation/wipp/ 

2006recertfication.html). 

EPA’s technical review evaluated 

compliance of the CRA–2004 with each 

section of the WIPP Compliance 

Criteria. The Agency focused its review 

on areas of change relative to the 

original certification decision as 

identified by DOE, in order to ensure 

that the effects of the changes have been 

addressed. EPA also made sure to 

address any substantial public 

comments received on the application 

(e.g., karst, waste inventory) in its 

Compliance Application Review 

Documents (CARDs) and Technical 

Support Documents (TSDs). On March 

29, 2006, EPA officially recertified the 

WIPP facility for the first time, exactly 

six months following the September 

2005 completeness determination. 


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Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 70587 

7Compliance with these regulations is addressed 

in the site’s Biennial Environmental Compliance 

Report (BECR). 

8WIPP LWA, sections 7(b)(3) and 9. 

III. With which regulations must WIPP 

comply? 

A. Radioactive Waste Disposal 

Regulations & Compliance Criteria 

WIPP must comply with EPA’s 

radioactive waste disposal regulations, 

located at subparts B and C of 40 CFR 

part 191. These regulations limit the 

amount of radioactive material which 

may escape from a disposal facility, and 

protect individuals and ground water 

resources from dangerous levels of 

radioactive contamination. In addition, 

the Compliance Recertification 

Application (CRA) and other 

information submitted by DOE must 

meet the requirements of the WIPP 

Compliance Criteria at 40 CFR part 194. 

The WIPP Compliance Criteria 

implement and interpret the general 

disposal regulations specifically for 

WIPP, and clarify the basis on which 

EPA’s certification decision is made. 

B. Compliance With Other 

Environmental Laws and Regulations 

The WIPP must also comply with a 

number of other environmental and 

safety regulations in addition to EPA’s 

disposal regulations 7—including, for 

example, the Solid Waste Disposal Act 

and EPA’s environmental standards for 

the management and storage of 

radioactive waste. Various regulatory 

agencies are responsible for overseeing 

the enforcement of these Federal laws. 

For example, enforcement of some parts 

of the hazardous waste management 

regulations has been delegated to the 

State of New Mexico. The State is 

authorized by EPA to carry out the 

State’s Resource Conservation and 

Recovery Act (RCRA) programs in lieu 

of the equivalent Federal programs. New 

Mexico’s Environment Department 

(NMED) reviews DOE’s permit 

applications for treatment, storage, and 

disposal facilities for hazardous waste, 

under Subtitle C of RCRA. The State’s 

authority for such actions as issuing a 

hazardous waste operating permit for 

the WIPP is in no way affected by EPA’s 

recertification decision. It is the 

responsibility of the Secretary of Energy 

to report the WIPP’s compliance with all 

applicable Federal laws pertaining to 

public health and the environment to 

EPA and the State of New Mexico.8

Compliance with environmental or 

public health regulations other than 

EPA’s disposal regulations and WIPP 

Compliance Criteria is not addressed by 

today’s action. 

IV. What has EPA’s role been at WIPP 

since the 1998 certification decision 

and 2006 recertification decision? 

A. Continuing Compliance 

Since EPA’s 1998 certification 

decision (and through the initial 2006 

recertification decision), the Agency has 

been monitoring and evaluating changes 

to the activities and conditions at WIPP. 

EPA monitors and ensures continuing 

compliance with EPA regulations 

through a variety of activities, 

including: Review and evaluation of 

DOE’s annual change reports, 

monitoring of the conditions of 

compliance, inspections of the WIPP 

site, and inspections of waste 

characterization operations. 

At any time, DOE must report any 

planned or unplanned changes in 

activities pertaining to the disposal 

system that differ significantly from the 

most recent compliance application 

(§ 194.4(b)(3)). The Department must 

also report any releases of radioactive 

material from the disposal system 

(§ 194.4(b)(3)(iii), (v)). Finally, EPA may 

request additional information from 

DOE at any time (§ 194.4(b)(2)). This 

information allows EPA to monitor the 

performance of the disposal system and 

evaluate whether the certification must 

be modified, suspended, or revoked to 

prevent or quickly reverse any potential 

danger to public health and the 

environment. 

B. Annual Change Reports 

Under § 194.4(b) DOE was required to 

submit a report of any changes to the 

conditions and activities at WIPP within 

six months of the 1998 certification 

decision and annually thereafter. DOE 

met this requirement by submitting the 

first change report in November 1998 

and annually thereafter. 

Since 1998, DOE’s annual change 

reports have reflected the progress of 

quality assurance and waste 

characterization inspections, minor 

changes to DOE documents, information 

on monitoring activities, and any 

additional EPA approvals for changes in 

activities and conditions. All 

correspondence and approvals regarding 

the annual change reports can be found 

in Air Docket A–98–49, Categories II–B2 

and II–B3. 

C. Monitoring the Conditions of 

Compliance 

As discussed previously, Condition 1 

of the WIPP certification requires DOE 

to implement the Option D panel 

closure system at WIPP, with Salado 

mass concrete used in place of fresh 

water concrete. Since the 1998 

certification decision, DOE has 

indicated that it would like to change 

the design of the Option D panel closure 

system selected by EPA (Air Docket 

A–98–49, Item II–B3–19). EPA chose to 

defer review of a new panel closure 

design until after issuing the first 

recertification decision (Air Docket 

A–98–49, Item II–B3–42). In November 

2002, DOE requested permission to 

install only the explosion isolation 

portion of the Option D panel closure 

design until EPA and NMED can render 

their respective final decisions on DOE’s 

request to approve a new design for the 

WIPP panel closure system. In 

December 2002, EPA approved DOE’s 

request to install only the explosion 

wall and to extend the panel closure 

schedule until a new design is approved 

(Air Docket A–98–49, Item II–B3–44). In 

a January 11, 2007 letter (DOE 2007b), 

DOE requested panel closures be 

delayed until a new design could be 

approved. EPA approved this request in 

a February 22, 2007 letter (EPA 2007a), 

and expects DOE to re-submit a new 

panel closure design after the CRA–2009 

recertification decision. Since 1998, the 

Agency has conducted numerous audits 

and inspections at waste generator sites 

in order to implement Conditions 2 and 

3 of the compliance certification. 

Notices announcing EPA inspections or 

audits to evaluate implementation of 

QA and waste characterization (WC) 

requirements at waste generator 

facilities were published in the Federal 

Register and also periodically 

announced on the Agency’s WIPP Web 

site (http://www.epa.gov/radiation/ 

wipp) and WIPP-NEWS e-mail listserv. 

The public has had the opportunity to 

submit written comments on waste 

characterization activities and QA 

program plans submitted by DOE in the 

past, and based on the revised WIPP 

Compliance Criteria, are now able to 

submit comments on EPA’s proposed 

waste characterization approvals (See 69 

FR 42571–42583). As noted above, 

EPA’s decisions on whether to approve 

waste generator QA program plans and 

waste characterization systems of 

controls—and thus, to allow shipment 

of specific waste streams for disposal at 

WIPP—are conveyed by a letter from 

EPA to DOE. The procedures for EPA’s 

approval are incorporated in the 

amended WIPP Compliance Criteria in 

§ 194.8. 

Since 1998, EPA has audited and 

approved the QA programs at Carlsbad 

Field Office (CBFO), Washington TRU 

Solutions (WTS), Sandia National 

Laboratory (SNL), and at 11 other DOE 

organizations. Following the initial 

approval of a QA program, EPA 

conducts follow-up audits to ensure 


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10Section 194.11 provides that EPA’s certification 

evaluation would not begin until EPA notified DOE 

of its receipt of a ‘‘complete’’ compliance 

application. This ensures that the full six-month 

period for EPA’s review, as provided by the WIPP 

LWA, shall be devoted to substantive, meaningful 

review of the application (61 FR 5226). 

continued compliance with EPA’s QA 

requirements. EPA’s main focus for QA 

programs has been the demonstration of 

operational independence, qualification, 

and authority of the QA program at each 

location. 

EPA has approved waste 

characterization (WC) activities at 

multiple waste generator sites since 

1998, including Idaho National 

Laboratory, Hanford, Rocky Flats 

Environmental Technology Site, 

Savannah River Site, Nevada Test Site, 

Argonne National Laboratory-East, and 

General Electric Vallecitos Nuclear 

Center. In the interim since the 2004 

CRA, remote-handled waste streams 

were approved for shipment and 

emplaced at WIPP for the first time. EPA 

inspects waste generator sites to ensure 

that waste is being characterized and 

tracked according to EPA requirements. 

EPA’s WC inspections focus on the 

personnel, procedures and equipment 

involved in WC. A record of EPA’s WC 

and QA correspondences and approvals 

can be found in Air Docket A–98–49, 

Categories II–A1 and II–A4. 

EPA will evaluate DOE’s compliance 

with Condition 4 of the certification 

when DOE submits a revised schedule 

and additional documentation regarding 

the implementation of PICs. This 

documentation must be provided to 

EPA no later than the final 

recertification application. Once 

received, the information will be placed 

in EPA’s public dockets, and the Agency 

will evaluate the adequacy of the 

documentation. During the operational 

period when waste is being emplaced in 

WIPP (and before the site has been 

sealed and decommissioned), EPA will 

verify that specific actions identified by 

DOE in the CCA, CRA, and 

supplementary information (and in any 

additional documentation submitted in 

accordance with Condition 4) are being 

taken to test and implement passive 

institutional controls. 

D. Inspections 

The WIPP Compliance Criteria 

provide EPA the authority to conduct 

inspections of activities at the WIPP and 

at all off-site facilities which provide 

information included in certification 

applications (§ 194.21). Since 1998, the 

Agency has conducted periodic 

inspections to verify the adequacy of 

information relevant to certification 

applications. EPA has conducted annual 

inspections at the WIPP site to review 

and ensure that the monitoring program 

meets the requirements of § 194.42. EPA 

has also inspected the emplacement and 

tracking of waste in the repository. The 

Agency’s inspection reports can be 

found in Air Docket A–98–49, 

Categories II–A1 and II–A4. 

V. What is EPA’s 2010 recertification 

decision? 

EPA recertifies that DOE’s WIPP 

continues to comply with the 

requirements of subparts B and C of 40 

CFR part 191. The following 

information describes EPA’s 

determination of compliance with each 

of the WIPP Compliance Criteria 

specified by 40 CFR part 194. 

The recertification process will not be 

used to approve any new significant 

changes proposed by DOE; any such 

proposals will be addressed separately 

by EPA. Recertification will ensure that 

WIPP is operated using the most 

accurate and up-to-date information 

available and provides documentation 

requiring DOE to operate to these 

standards. 

A. What information did the Agency 

examine to make its final decision? 

40 CFR part 194 sets out those 

elements which the Agency requires to 

be in any complete compliance 

application. In general, compliance 

applications must include information 

relevant to demonstrating compliance 

with each of the individual sections of 

40 CFR part 194 to determine if the 

WIPP will comply with the Agency’s 

radioactive waste disposal regulations at 

40 CFR part 191, subparts B and C. The 

Agency published the ‘‘Compliance 

Application Guidance for the Waste 

Isolation Pilot Plant: A Companion 

Guide to 40 CFR Part 194’’ (CAG) which 

provided detailed guidance on the 

submission of a complete compliance 

application (EPA Pub. No. 402–R–95– 

014, Air Docket A–93–02, Item II–B2– 

29).10

To make its decision, EPA evaluated 

basic information about the WIPP site 

and disposal system design, as well as 

information which addressed all the 

provisions of the compliance criteria. As 

required by § 194.15(a), DOE’s CRA– 

2009 updated the previous compliance 

application (CRA–2004) with sufficient 

information for the Agency to determine 

whether or not WIPP continues to be in 

compliance with the disposal 

regulations. 

As mentioned previously, the first 

step in recertification is termed the 

‘‘completeness determination.’’ 

‘‘Completeness’’ is a key administrative 

step that EPA uses to determine that any 

recertification application addresses all 

the required regulatory elements and 

provides sufficient information for EPA 

to conduct a full, technical review. 

Following receipt of DOE’s second CRA 

on March 24, 2009, EPA began to 

identify areas of the application where 

additional information was needed. A 

June 16, 2009 Federal Register notice 

announced availability of the CRA–2009 

and opened the official public comment 

period. Over the course of the following 

12 months, the Agency submitted five 

official letters (May 21, 2009; July 16, 

2009; October 19, 2009; January 25, 

2010; and February 22, 2010) to DOE 

requesting additional information 

regarding the CRA. The Department 

responded with a series of ten letters 

(August 24, 2009; September 30, 2009; 

November 25, 2009; January 12, 2010; 

February 22, 2010; March 31, 2010; 

April 12, 2010; April 19, 2010; May 26, 

2010; and June 24, 2010) submitting all 

of the requested supplemental 

information to EPA. On June 29, 2010, 

EPA announced that DOE’s 

recertification application was complete 

(75 FR 41421–41424). 

EPA also relied on materials prepared 

by the Agency or submitted by DOE in 

response to EPA requests for specific 

additional information necessary to 

address technical sufficiency concerns. 

For example, EPA directed DOE to 

conduct a revised performance 

assessment—referred to as the 

performance assessment baseline 

calculation (PABC)—to address 

technical issues. Though recertification 

is not an official rulemaking, the Agency 

also considered public comments 

related to recertification, concerning 

both completeness and technical issues. 

In summary, EPA’s recertification 

decision is based on the entire record 

available to the Agency, which is 

located in its official dockets (FMDS 

Docket ID No. EPA–HQ–OAR–2009– 

0330, and Air Docket A–98–49). The 

record consists of the complete CRA, 

supplementary information submitted 

by DOE in response to EPA requests for 

additional information, technical 

reports generated by EPA, EPA audit 

and inspection reports, and public 

comments submitted on EPA’s proposed 

recertification decision during the 

public comment period. All pertinent 

CRA–2009 correspondence was placed 

in our dockets (FDMS Docket No. OAR– 

2009–0330) and on our WIPP Web site 

(http://www.epa.gov/radiation/wipp/ 

2009application.html). 

EPA’s technical review evaluated 

compliance of the CRA with each 

section of the WIPP Compliance 

Criteria. The Agency focused its review 


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on areas of change relative to the initial 

recertification decision as identified by 

DOE, in order to ensure that the effects 

of the changes have been addressed. As 

with its original recertification decision, 

EPA’s evaluation of DOE’s 

demonstration of continuing 

compliance with the disposal 

regulations is based on the principle of 

reasonable expectation. 40 CFR 

191.13(b) states, ‘‘proof of the future 

performance of a disposal system is not 

to be had in the ordinary sense of the 

word in situations that deal with much 

shorter time frames. Instead, what is 

required is a reasonable expectation, on 

the basis of the record before the 

implementing agency, that compliance 

with § 191.13(a) will be achieved.’’ As 

discussed in 40 CFR part 191, and 

applied to the 1998 certification 

decision and 2006 recertification 

decision, reasonable expectation is used 

because of the long time period 

involved and the nature of the events 

and processes at radioactive waste 

disposal facilities. There are inevitable 

and substantial uncertainties in 

projecting disposal system performance 

over long time periods. EPA applies 

reasonable expectation to the evaluation 

of both quantitative (i.e., performance 

assessment) and qualitative (i.e., 

assurance requirements) aspects of any 

compliance application. 

The Agency produced a suite of 

documents during its technical review. 

EPA’s Compliance Application Review 

Documents (CARDs) correspond in 

number to the sections of 40 CFR part 

194 that they respectively address. Each 

CARD enumerates all changes made by 

DOE impacting a particular section of 

the rule, and EPA’s process and 

conclusions. CARDs are found at Docket 

A–98–49, Category V–B. Technical 

Support Documents (TSDs) were 

prepared to address specific topics in 

greater detail, and are found in Docket 

A–98–49, Category II–B1. Together, the 

CARDs and TSDs thoroughly document 

EPA’s review of DOE’s compliance 

recertification application and the 

technical rationale for the Agency’s 

decisions. 

B. Content of the Compliance 

Recertification Application (§§ 194.14 

and 194.15) 

According to § 194.14, any 

compliance application must include, at 

a minimum, basic information about the 

WIPP site and disposal system design. 

This section focuses on the geology, 

hydrology, hydrogeology, and 

geochemistry of the WIPP disposal 

system. A compliance application must 

also include information on WIPP 

materials of construction, standards 

applied to design and construction, 

background radiation in air, soil, and 

water, as well as past and current 

climatological and meteorological 

conditions. Section 194.15 states that 

recertification applications shall update 

this information to provide sufficient 

information for EPA to determine 

whether or not WIPP continues to be in 

compliance with the disposal 

regulations. 

In Section 15 of the 2009 CRA, DOE 

identified changes to the disposal 

system between the 2004 CRA and 2009 

CRA, including changes that were 

approved by EPA and changes to 

technical information relevant to 

§§ 194.14 and 194.15. Noteworthy 

changes discussed in the 2009 CRA 

include enhanced monitoring leading to 

an updated understanding of Culebra 

transmissivity and new transmissivity 

field calculations. Although EPA 

considers these updates important to the 

current understanding of the disposal 

system, EPA determined that the 

changes, both individually and 

collectively, do not have a significant 

impact on the performance of the 

disposal system. Today’s notice 

summarizes the most important of these 

changes. 

Culebra Dolomite: The Culebra 

Dolomite is considered the primary 

pathway for long-term radionuclide 

transport in ground water. As part of the 

required monitoring program, DOE 

monitors water levels in the Culebra. At 

the time of the 2004 CRA, observed 

fluctuations and a general increase in 

the water levels of Culebra monitoring 

wells was poorly understood and 

attributed to human influences, such as 

potash mining and petroleum 

production. These water levels establish 

the hydraulic gradient across the site, 

which in turn influences radionuclide 

travel times for the purposes of 

performance assessment. DOE uses the 

Culebra hydrologic data in combination 

with geologic information and modeling 

software to develop transmissivity fields 

for performance assessment (PA) 

modeling. The approach DOE used in 

the 2004 CRA was considered adequate 

by EPA, but lacked strong prediction 

power for transmissivity at specific 

points. [See EPA 2004 Performance 

Assessment Baseline Calculation 

(PABC) Technical Support Document 

(TSD) (Air Docket A–98–49, Item II–B1– 

16).] 

Since the 2004 CRA, DOE conducted 

a Culebra well optimization program to 

determine where new water monitoring 

wells were needed most and which old 

wells could be plugged and abandoned. 

Additionally, DOE added well 

instrumentation that produces virtually 

continuous data, offering a more 

complete record of the changes in water 

pressure than manual monthly 

measurements previously provided. The 

new monitoring data allowed DOE to 

develop transmissivity fields that are 

geologically based, consistent with 

observed groundwater heads, consistent 

with groundwater responses in Culebra 

pump tests, and consistent with water 

chemistry. Furthermore, Culebra waterlevel changes previously considered 

unpredictable and anthropogenic in 

origin can now be demonstrated to be 

responses to rainfall in Nash Draw, 

while others can be conclusively linked 

to well drilling activities. This 

understanding facilitated the 

development of the revised Culebra 

Hydrology Conceptual Model, which 

was peer reviewed in 2008. A detailed 

discussion of these changes is found in 

2009 CRA CARD 15. In conclusion, EPA 

finds that DOE has adequately 

characterized and assessed the site 

characteristics for the purposes of the 

PA and has demonstrated continued 

compliance with §§ 194.14 and 194.15. 

In addition to technical changes 

identified by DOE and EPA, the Agency 

received comments regarding the 

geology surrounding the WIPP site. As 

during the 2004 CRA, some stakeholders 

commented that karst features are 

prevalent in the vicinity of WIPP. Karst 

is a type of topography in which there 

are numerous sinkholes and large voids, 

such as caves. Karst is caused when 

rainwater reacts with carbon dioxide 

from the air, forms carbonic acid, and 

seeps through the soil into the 

subsurface to dissolve soluble rocks 

such as limestone and evaporites. If 

substantial karst features were present at 

WIPP, they could increase the speed at 

which releases of radionuclides travel 

away from the repository through the 

subsurface to the accessible 

environment. 

In the 1998 certification decision, 

EPA reviewed existing information and 

concluded that, although it is possible 

that dissolution has occurred in the 

vicinity of the WIPP site sometime in 

the past (e.g., Nash Draw was formed 

∼500,000 years ago), dissolution is not 

an ongoing, pervasive process at the 

WIPP site. Therefore, karst feature 

development would not impact the 

containment capabilities of the WIPP for 

at least the 10,000-year regulatory 

period (Air Docket A–93–02, Item III–B– 

2, CCA CARD 14). 

Following the 1998 certification 

decision, several groups challenged 

EPA’s decision in the United States 

Court of Appeals for the District of 

Columbia Circuit (No. 98–1322), 

including EPA’s conclusions regarding 


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9 ‘‘PROOF OF RAPID RAINWATER RECHARGE 

AT THE WIPP SITE’’; Richard Hayes Phillips, PhD; 

March 25, 2009. 

karst at the WIPP site. On June 28, 1999, 

the U.S. Court of Appeals upheld all 

aspects of EPA’s 1998 certification 

decision, including EPA’s conclusion 

that karst is not a feature that will 

impact the containment capabilities of 

the WIPP. 

During the 2004 CRA, some 

stakeholders continued to assert that the 

geologic characterization of the 

subsurface surrounding the WIPP 

repository does not adequately identify 

the presence of karst. As a result of 

these concerns, EPA conducted a 

thorough review of the geologic and 

hydrologic information related to karst. 

EPA made a site visit to re-examine the 

evidence of karst around the WIPP site, 

prepared a technical support document 

(TSD) that discusses EPA’s in-depth 

review of the karst issue for 

recertification (Air Docket A–98–49, 

Item II–B1–15), and requested that DOE/ 

SNL conduct a separate analysis of the 

potential for karst and address issues 

raised by stakeholders. These efforts 

reaffirmed the previous conclusion that 

pervasive karst processes have been 

active outside the WIPP site, but not at 

WIPP. 

Again during the 2009 CRA, some 

stakeholders argued that major karst 

features are present at WIPP, based on 

a report by Dr. Richard Phillips (2009 9) 

which purported to correlate 

fluctuations of the water levels of 

monitoring wells with rainfall events in 

order to prove that rainwater reached 

the Culebra Dolomite through karst. 

EPA analyzed the Phillips report and 

directed SNL to respond to challenges to 

the conceptual model. The Phillips 

report failed to support hydrologic 

arguments for the presence of karst, or 

to acknowledge analyses by SNL which 

integrate pressure changes due to 

rainfall into a robust, peer-reviewed 

conceptual model. The Agency finds 

that the data continue to support the 

conclusion made during the CCA that 

karst will not impact the WIPP site over 

the regulatory timeframe. The 2008 peer 

review of the revised Culebra Hydrology 

Conceptual Model came to a similar 

conclusion. Additional information on 

this topic is found in EPA’s 2009 CRA 

Compliance Application Review 

Document (CARD) 15. 

C. Performance Assessment: Modeling 

and Containment Requirements 

(§§ 194.14, 194.15, 194.23, 194.31 

Through 194.34) 

The disposal regulations at 40 CFR 

part 191 include requirements for 

containment of radionuclides. The 

containment requirements at 40 CFR 

191.13 specify that releases of 

radionuclides to the accessible 

environment must be unlikely to exceed 

specific limits for 10,000 years after 

disposal. At WIPP, the specific release 

limits are based on the amount of waste 

in the repository at the time of closure 

(§ 194.31). Assessment of the likelihood 

that WIPP will meet these release limits 

is conducted through the use of a 

process known as performance 

assessment, or PA. 

The WIPP PA process culminates in a 

series of computer simulations that 

attempts to describe the physical 

attributes of the disposal system (site 

characteristics, waste forms and 

quantities, engineered features) in a 

manner that captures the behaviors and 

interactions among its various 

components. The computer simulations 

require the use of conceptual models 

that represent physical attributes of the 

repository based on features, events, and 

processes that may impact the disposal 

system. The conceptual models are then 

expressed as mathematical 

relationships, which are solved with 

iterative numerical models, which are 

then translated into computer codes. 

(§ 194.23) The results of the simulations 

are intended to show estimated releases 

of radioactive materials from the 

disposal system to the accessible 

environment over the 10,000-year 

regulatory time frame. 

The PA process must consider both 

natural and man-made processes and 

events which have an effect on the 

disposal system (§§ 194.32 and 194.33). 

The PA must consider all reasonably 

probable release mechanisms from the 

disposal system and must be structured 

and conducted in a way that 

demonstrates an adequate 

understanding of the physical 

conditions in the disposal system. The 

PA must evaluate potential releases 

from both human-initiated activities 

(e.g., via drilling intrusions) and natural 

processes (e.g., dissolution) that may 

occur independently of human 

activities. DOE must justify the 

omission of events and processes that 

could occur but are not included in the 

final PA calculations. 

The results of the PA are used to 

demonstrate compliance with the 

containment requirements in 40 CFR 

191.13. The containment requirements 

are expressed in terms of ‘‘normalized 

releases.’’ The results of the PA are 

assembled into complementary 

cumulative distribution functions 

(CCDFs) which indicate the probability 

of exceeding various levels of 

normalized releases. (§ 194.34) 

To demonstrate continued 

compliance with the disposal 

regulations, DOE submitted a new PA as 

part of the 2009 CRA. EPA monitored 

and reviewed changes to the PA since 

the PABC–04, summarized below. 

DOE performed two conceptual model 

peer reviews between the submission of 

the 2004 CRA and the 2009 CRA: The 

WIPP Revised Disturbed Rock Zone and 

Cuttings and Cavings Submodels Peer 

Review, and the Culebra Hydrogeology 

Conceptual Model Peer Review. These 

revisions did not result in significant 

changes to the 2009 CRA PA. DOE again 

updated its analysis of features, events 

and processes (FEPs) that could impact 

WIPP. As in the 2004 CRA, this update 

of FEPs did not result in any changes to 

the scenarios used in the CRA PA. Since 

the 2004 PABC, DOE updated a number 

of parameters, including duration of a 

direct brine release, cellulosics, plastics, 

and rubber (CPR) degradation rates, 

BRAGFLO (computer code) flow 

chemistry implementation, capillary 

pressure and related permeability, and 

the drilling rate and borehole plugging 

patterns. DOE also corrected minor 

parameter errors. For more information, 

refer to 2009 CRA CARDs 23 and 24. 

EPA examined the recent inventory 

updates and changes, mainly the 

Annual Transuranic Waste Inventory 

Report (ATWIR) 2007 and the ATWIR 

2008, and determined that a new 

performance assessment needed to be 

conducted in order to include updated 

inventory information, such as an 

increase in chemical components (see 

2009 CRA CARD 24, Table 24–2, 

produced from PAIR 2008 Table 5–7). In 

its first completeness letter (dated May 

21, 2009, items 1–G–3 and 1–23–1 [EPA 

2009a]), EPA directed DOE to perform 

updated PA calculations using the 

updated inventory. In response to EPA’s 

direction, DOE produced the 2009 

Performance Assessment Baseline 

Calculations (PABC–09). The Agency’s 

review of the PABC–09 found that DOE 

made all the changes required by EPA, 

and that the PABC demonstrates 

compliance with the containment 

requirements specified in 40 CFR part 

191. The results of the PABC–09 are 

discussed below. Additional detail on 

the Agency’s review of the PABC–09 

may be found in CARDs 23, 24, 31–34, 

and specifically in the PABC–09 TSD 

(Docket A–98–49, Category II–B1). 

The 2009 CRA PA and PABC–09 

included calculations of the same 

scenarios as the original CCA PA: (1) 

The undisturbed scenario, where the 

repository is not impacted by human 

activities, and three drilling scenarios, 

(2) the E1 Scenario, where one or more 

boreholes penetrate a Castile brine 


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reservoir and also intersect a repository 

waste panel, (3) the E2 Scenario, where 

one or more boreholes intersect a 

repository waste panel but not a brine 

reservoir, and (4) the E1E2 Scenario, 

where there are multiple penetrations of 

waste panels by boreholes of the E1 or 

E2 type, at many possible combinations 

of intrusions times, locations, and E1 or 

E2 drilling events. 

The 2009 Culebra modeling predicted 

shorter travel time for a particle to travel 

through the Culebra to the WIPP site 

boundary than did the 2004 PABC. 

Three main changes contributed to these 

changes in flow time: The Bureau of 

Land Management (BLM) redefined the 

definition of minable potash in 2009, in 

particular within the WIPP site near the 

waste disposal panels; matrix 

distribution coefficients (Kds) decreased 

several orders of magnitude for most 

radionuclides when the increase in the 

organic ligand inventory was included; 

and well SNL–14 confirmed the 

existence of the high-transmissivity 

zone in the southeastern portion of the 

WIPP site. This zone allows water to 

flow faster toward the Land Withdrawal 

Boundary than in PABC–04 

calculations. The travel time is closer to 

that predicted in the original 

compliance certification, and releases 

remain within the limits established by 

40 CFR part 191. EPA considers the 

PABC to be a conservative and current 

representation of the knowledge of the 

WIPP and how it will interact with the 

surrounding environment. EPA finds 

that DOE is in continued compliance 

with the requirements of 40 CFR 194.23 

and 194.31 through 194.34. DOE 

calculated the release limits properly 

(§ 194.31), adequately defined the scope 

of the PA (§ 194.32), included drilling 

scenarios as in the original CCA 

(§ 194.33), and calculated and presented 

the results of the 2009 CRA PA and 

PABC–09 properly (§ 194.34). Details on 

the PABC–09 may be found in EPA’s 

PABC–09 TSD (Docket A–98–49, 

Category II–B1). 

EPA received public comments 

related to the 2009 CRA performance 

assessment. Commenters questioned 

whether the PA encompassed the results 

of specific experiments related to 

plutonium nanocolloids that enhanced 

groundwater transport capabilities. The 

Agency asked DOE to respond, and in 

a letter dated September 1, 2010, DOE 

indicated that although the formation of 

these colloids has been demonstrated to 

be unlikely in the chemical conditions 

expected at WIPP, the PA conservatively 

takes into consideration the formation 

and transport of intrinsic colloids. For 

more information, refer to 2009 CRA 

CARD 24. 

D. General Requirements 

1. Approval Process for Waste Shipment 

From Waste Generator Sites for Disposal 

at WIPP (§ 194.8) 

EPA codified the requirements of 

§ 194.8 at the time of the 1998 

certification decision. Under these 

requirements, EPA evaluates site 

specific waste characterization and QA 

plans to determine that DOE can 

adequately characterize and track waste 

for disposal at WIPP. Since 1998, EPA 

has conducted numerous inspections 

and approvals pursuant to § 194.8. 

EPA previously issued an approval of 

DOE’s general framework for 

characterizing remote-handled (RH) 

waste in March 2004. This approval 

required DOE to provide site-specific 

RH waste characterization plans and 

characterization procedures for EPA 

approval prior to implementing them for 

characterizing and disposing of RH 

waste at WIPP. Specific RH waste 

streams were approved and emplaced at 

WIPP for the first time during this 

recertification period. 

For more information on activities 

related to § 194.8, please refer to 2009 

CRA CARD 8. 

2. Inspections (§ 194.21) 

Section 194.21 provides EPA with the 

right to inspect all activities at WIPP 

and all activities located off-site which 

provide information in any compliance 

application. EPA did not exercise its 

authority under this section prior to the 

1998 certification decision. 

Since 1998, EPA has inspected WIPP 

site activities, waste generator sites, 

monitoring programs, and other 

activities. For all inspections, DOE 

provided EPA with access to facilities 

and records, and supported our 

inspection activities. Information on 

EPA’s 194.21 inspection activities can 

be found in 2009 CRA CARD 21. 

3. Quality Assurance (§ 194.22) 

Section 194.22 establishes quality 

assurance (QA) requirements for WIPP. 

QA is a process for enhancing the 

reliability of technical data and analyses 

underlying compliance applications. 

Section 194.22 requires DOE to 

demonstrate that a Nuclear Quality 

Assurance (NQA) program has been 

established and executed/implemented 

for items and activities that are 

important to the long-term isolation of 

transuranic waste. 

EPA determined that the 2009 CRA 

provides adequate information to 

demonstrate the establishment of each 

of the applicable elements of the NQA 

standards. EPA has also verified the 

continued proper implementation of the 

NQA Program through periodic audits 

conducted in accordance with 

§ 194.22(e). 

EPA’s determination of compliance 

with § 194.22 can be found in 2009 CRA 

CARD 22. 

4. Waste Characterization (§ 194.24) 

Section 194.24, waste 

characterization, generally requires DOE 

to identify, quantify, and track the 

chemical, radiological and physical 

components of the waste destined for 

disposal at WIPP. Since the 2004 CRA, 

DOE has collected data from generator 

sites and compiled the waste inventory 

on an annual basis. DOE’s 2008 Annual 

Tranuranic Waste Inventory Report 

(ATWIR 2008) reflected the disposal 

intentions of the waste generator sites as 

of December 31, 2007. DOE classified 

the wastes as emplaced, stored or 

projected (to-be-generated). DOE used 

data from the WIPP Waste Information 

System (WWIS) to identify the 

characteristics of the waste that has 

been emplaced at WIPP. The projected 

wastes were categorized similarly to 

existing waste (e.g., heterogeneous 

debris, filter material, soil). 

DOE’s 2009 CRA recertification 

inventory was initially the same 

inventory used for the PABC–04. During 

its evaluation of the completeness of the 

CRA, however, EPA identified changes 

in the waste inventory that were 

potentially impactful to PA. As 

previously mentioned, EPA directed 

DOE to perform the 2009 PABC using 

the updated inventory in the Annual 

Transuranic Waste Inventory Report2008. DOE generally kept the same 

categories of waste for the 2009 PABC. 

The major changes were changes to 

waste volumes and radioactive content 

since the 2004 CRA. Of particular 

concern to the Agency was an increase 

in the volume of organic ligands in the 

ATWIR–2008 inventory, which bind 

radionuclides, enhancing their 

solubility and transport. The 

radioactivity of the waste was estimated 

to decrease since the 2004 CRA, 

principally because of the removal of 

Hanford tank waste from the 

performance assessment inventory (EPA 

2010f). Subsequent to the submission of 

the 2009 CRA, DOE altered the preferred 

alternatives in its Hanford tank waste 

environmental impact statement, 

indicating that these tank wastes would 

be managed as High-Level Waste (HLW) 

[74 FR 67189 (2009–12–18)]. This 

change decreased the volume of both 

contact-handled and remote-handled 

waste in the inventory. 

EPA reviewed the CRA and 

supplemental information provided by 

DOE to determine whether they 


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provided a sufficiently complete 

description of the chemical, radiological 

and physical composition of the 

emplaced, stored and projected wastes 

proposed for disposal in WIPP. The 

Agency also reviewed DOE’s description 

of the approximate quantities of waste 

components (for both existing and 

projected wastes). EPA considered 

whether DOE’s waste descriptions were 

of sufficient detail to enable EPA to 

conclude that DOE did not overlook any 

component that is present in TRU waste 

and has significant potential to 

influence releases of radionuclides. The 

2009 CRA did not identify any 

significant changes to DOE’s waste 

characterization program in terms of 

measurement techniques, or 

quantification and tracking of waste 

components. 

Since the 1998 certification decision, 

EPA has conducted numerous 

inspections and approvals of generator 

site waste characterization programs to 

ensure compliance with §§ 194.22, 

194.24, and 194.8. For a summary of 

EPA’s waste characterization approvals, 

please refer to 2009 CRA CARD 8. 

As in previous certifications, 

stakeholders again commented that 

high-level waste, commercial waste, and 

spent nuclear fuel must not be allowed 

at WIPP. Commenters also objected to 

the inclusion in the potential inventory 

of wastes which currently lack a TRU or 

defense determination. EPA reiterates 

that it will not allow wastes prohibited 

by the Land Withdrawal Act to be 

shipped to WIPP. All wastes must meet 

the WIPP waste acceptance criteria and 

all requirements of EPA’s waste 

characterization program, and EPA must 

officially notify DOE before the 

Department is allowed to ship waste to 

WIPP. Inclusion in the performance 

assessment does not imply EPA’s 

approval of such waste for disposal at 

WIPP. 

Commenters also objected to wastes 

being shipped to WIPP that have not 

been explicitly included in a compliant 

performance assessment. Inventory, for 

the purposes of PA, represents a set of 

bounding conditions. Any waste which 

represents a deviation from the expected 

waste parameters will not be approved 

until it can be demonstrated not to 

negatively impact PA results (e.g. 

supercompacted waste). 

Finally, commenters objected to the 

fact that the Comprehensive Inventory 

Database (CID) is not a public 

document, and that the legal process 

through which defense and TRU 

determinations are made is not 

adequately transparent. The Department 

provided stakeholders with additional 

inventory information. The Agency will 

continue to work with DOE to meet 

stakeholders’ requests for information, 

and to engage the public early in 

inventory decisions. 

For more information on EPA’s 

determination of compliance with 

§ 194.24, please refer to CRA CARD 24. 

5. Future State Assumptions (§ 194.25) 

Section 194.25 stipulates that 

performance assessments and 

compliance assessments ‘‘shall assume 

that characteristics of the future remain 

what they are at the time the 

compliance application is prepared, 

provided that such characteristics are 

not related to hydrogeologic, geologic or 

climatic conditions.’’ Section 194.25 

also requires DOE to provide 

documentation of the effects of potential 

changes of hydrogeologic, geological, 

and climatic conditions on the disposal 

system over the regulatory time frame. 

Section 194.25 focuses the PA and 

compliance assessments on the more 

predictable significant features of 

disposal system performance, instead of 

allowing unbounded speculation on all 

developments over the 10,000-year 

regulatory time frame. 

EPA concludes that DOE adequately 

addressed the impacts of potential 

hydrogeologic, geologic and climate 

changes to the disposal system. The 

2009 CRA includes all relevant elements 

of the performance assessment and 

compliance assessments and is 

consistent with the requirements of 

§ 194.25. For more information 

regarding EPA’s evaluation of 

compliance with this section, see 2009 

CRA CARDs 25 and 32, and the 

corresponding TSD for FEPs (Docket A– 

98–49, Category II–B1). 

6. Expert Judgment (§ 194.26) 

The requirements of § 194.26 apply to 

expert judgment elicitation, which is a 

process for obtaining data directly from 

experts in response to a technical 

problem. Expert judgment may be used 

to support a compliance application, 

provided that it does not substitute for 

information that could reasonably be 

obtained through data collection or 

experimentation. EPA prohibits expert 

judgment from being used in place of 

experimental data, unless DOE can 

justify why the necessary experiments 

cannot be conducted. As in 2004, the 

2009 CRA did not identify any expert 

judgment activities that were conducted 

since the 1998 certification decision. 

Therefore, EPA determines that DOE 

remains in compliance with the 

requirements of § 194.26. (For more 

information regarding EPA’s evaluation 

of compliance with § 194.26, see CRA 

CARD 26.) 

7. Peer Review (§ 194.27) 

Section 194.27 of the WIPP 

Compliance Criteria requires DOE to 

conduct peer review evaluations related 

to conceptual models, waste 

characterization analyses, and a 

comparative study of engineered 

barriers. A peer review involves an 

independent group of experts who are 

convened to determine whether 

technical work was performed 

appropriately and in keeping with the 

intended purpose. The required peer 

reviews for WIPP must be performed in 

accordance with the Nuclear Regulatory 

Commission’s NUREG–1297, ‘‘Peer 

Review for High-Level Nuclear Waste 

Repositories,’’ which establishes 

guidelines for the conduct of a peer 

review exercise. DOE performed two 

conceptual model peer reviews between 

the submission of the 2004 CRA and the 

2009 CRA: The WIPP Revised Disturbed 

Rock Zone and Cuttings and Cavings 

Submodels Peer Review, and the 

Culebra Hydrogeology Conceptual 

Model Peer Review. Additional peer 

reviews of waste characterization 

analyses included the Los Alamos 

National Laboratory (LANL) Sealed 

Sources Peer Review, and the LANL 

Remote-Handled TRU Waste Visual 

Examination Data Verification Peer 

Review. EPA’s review, both at the time 

of the peer reviews and during 

recertification, verified that the process 

DOE used to perform these peer reviews 

was compatible with NUREG–1297 

requirements. Therefore, EPA 

determines that DOE remains in 

compliance with the requirements of 

§ 194.27. For more information 

regarding EPA’s evaluation of 

compliance with § 194.27, see 2009 CRA 

CARD 27. 

E. Assurance Requirements (§§ 194.41– 

194.46) 

The assurance requirements were 

included in the disposal regulations to 

compensate in a qualitative manner for 

the inherent uncertainties in projecting 

the behavior of natural and engineered 

components of the repository for many 

thousands of years (50 FR 38072). The 

assurance requirements included in the 

WIPP Compliance Criteria are active 

institutional controls (§ 194.41), 

monitoring (§ 194.42), passive 

institutional controls (§ 194.43), 

engineered barriers (§ 194.44), presence 

of resources (§ 194.45), and removal of 

waste (§ 194.46). 

As in the 2004 CRA, the 2009 CRA 

did not reflect any significant changes to 

demonstrating compliance with the 

assurance requirements. DOE 

appropriately updated the information 


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Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 70593 

10 ‘‘Summary Report of the CRA–2009 

Performance Assessment Baseline Calculation’’; 

Sandia National Laboratories; February 11, 2010. 

for the assurance requirements in 

Sections 41 through 46 of the 2009 CRA, 

and accurately reflected EPA decisions 

made since the 2006 certification 

decision, such as reducing the safety 

factor for the magnesium oxide 

engineered barrier from 1.67 to 1.2 

(§ 194.44). EPA’s specific evaluation of 

compliance with the assurance 

requirements can be found in CRA 

CARDs 41–46. 

F. Individual and Groundwater 

Protection Requirements (§§ 194.51 

Through 194.55) 

Sections 194.51 through 194.55 of the 

compliance criteria implement the 

individual protection requirements of 

40 CFR 191.15 and the groundwater 

protection requirements of subpart C of 

40 CFR part 191 at WIPP. Assessment of 

the likelihood that the WIPP will meet 

the individual dose limits and 

radionuclide concentration limits for 

groundwater is conducted through a 

process known as compliance 

assessment. Compliance assessment 

uses methods similar to those of the PA 

(for the containment requirements) but 

is required to address only undisturbed 

performance of the disposal system. 

That is, compliance assessment does not 

include human intrusion scenarios (i.e., 

drilling or mining for resources). 

Compliance assessment can be 

considered a ‘‘subset’’ of performance 

assessment, since it considers only 

natural (undisturbed) conditions and 

past or near-future human activities 

(such as existing boreholes), but does 

not include the long-term future human 

activities that are addressed in the PA. 

Sections 194.51 through 194.55 

describe specific requirements for 

compliance with 40 CFR part 191 

requirements at WIPP. Section 194.51 

states that the protected individual must 

be positioned at the location where they 

are expected to receive the highest dose 

from any radioactive release. All 

potential exposure pathways are to be 

considered and compliance assessments 

(CAs) must assume that individuals 

consume two liters of water per day 

according to 40 CFR 194.52. 40 CFR 

194.53 requires that all underground 

sources of drinking water be considered 

and that connections to surface water be 

factored into any CA. In 40 CFR 194.54 

potential processes and events are to be 

considered and selected in any CA and 

that existing boreholes or other drilling 

activities be considered. 40 CFR 194.55 

also requires that the impact of 

uncertainty on any CA analysis and that 

committed effective dose to individuals 

be calculated. Radionuclide 

concentrations in underground sources 

of drinking water (USDWs) and dose 

equivalent received from USDWs must 

also be calculated. 

In the 2009 CRA, DOE reevaluated 

each of the individual and groundwater 

requirements. DOE again updated 

parameters related to the individual and 

groundwater requirements for the 

undisturbed scenario: For example, 

water use changed from 282 gallons per 

person per day in the CCA to 305 in the 

2004 CRA, and 273 in the 2009 CRA. By 

updating this information for the 

compliance assessment and reviewing 

data from water wells that have been 

drilled since the 2004 CRA, DOE 

confirmed its original water source 

assumptions (2009 CRA Appendix IDP). 

DOE did not conduct new detailed 

bounding dose calculations for the 2009 

CRA because the releases predicted by 

the 2009 CRA performance assessment 

for the undisturbed scenario were an 

order of magnitude lower than those 

used in the original CCA (Appendix 

IGP). EPA reviewed DOE’s 2009 CRA 

approach to compliance with 40 CFR 

194.51 to 40 CFR 194.55. EPA verified 

that DOE’s approach to addressing the 

individual and groundwater 

requirements was the same as the 

original CCA (CRA CARDs 51/52, 53, 

54, 55 for details), that the 2009 CRA PA 

results are lower than the original CCA 

and that the recalculation of doses was 

not necessary (2009 CRA Appendix 

IGP). Because DOE was required to 

correct, update, and rerun the 2009 CRA 

PA, called the PABC–09, EPA 

reevaluated the impact of these new 

results on compliance with 40 CFR 

194.51 to 40 CFR 194.55, and found 

DOE showed continued compliance 

with this requirement, documented in 

the 2009 PABC summary report 

(Clayton et al. 2009, page 21).10 Thus, 

the CCA bounding calculations do not 

need to be redone. EPA finds DOE in 

continued compliance with 40 CFR 

194.51–194.55 requirements. 

VI. How has the public been involved 

in EPA’s WIPP recertification activities? 

A. Public Information 

Since the 1998 certification decision, 

EPA has kept the public informed of our 

continuing compliance activities at 

WIPP and our preparations for 

recertification. EPA’s main focus has 

been on distributing information via the 

EPA Web site, and e-mail messages via 

its WIPP-NEWS listserv. 

Throughout the recertification 

process, the Agency posted any 

pertinent new information and/or 

updates on its WIPP Web site (http:// 

www.epa.gov/radiation/wipp). Many of 

our recertification documents (including 

DOE-submitted recertification materials, 

correspondence, Federal Register 

notices, outreach materials, hearings 

transcripts, as well as technical support 

documents) are available for review or 

download (in Adobe .pdf format), in 

addition to a link to our 2009 

recertification docket on the 

regulations.gov Web site (http:// 

www.regulations.gov). 

Since February 2009, EPA has sent 

out numerous announcements regarding 

the recertification schedule, availability 

of any WIPP-related documents on the 

EPA WIPP Web site and its dockets, as 

well as details for the Agency’s June 

2009 and May 2010 stakeholder 

meetings in New Mexico. 

B. Stakeholder Meetings 

As discussed in the WIPP LWA, the 

recertification process is not a 

rulemaking; therefore public hearings 

were not required. However, EPA held 

a series of public meetings in New 

Mexico in June 2009 and May 2010 to 

provide information about the 

recertification process. In an effort to 

make these meetings as informative as 

possible to all attending parties, EPA 

listened to stakeholder input and 

concerns and tailored the meetings 

around the public as much as possible. 

The first meetings were held on June 

30, 2009, in Albuquerque, New Mexico, 

with both an afternoon and evening 

session. The main purpose of these 

meetings was to discuss EPA’s 

recertification process and timeline, as 

well as DOE’s application and important 

changes at WIPP since the initial 

recertification process began in 2004. 

The meetings featured brief 

presentations on the aforementioned 

topics, as well as a roundtable, 

facilitated discussion. In response to 

stakeholder suggestions, DOE staff 

members were also on hand to provide 

information and answer any stakeholder 

questions. Participants were encouraged 

to provide comments to EPA for our 

consideration during review of DOE’s 

WIPP application. 

The second public sessions were held 

on May 10, 2010, in Albuquerque, New 

Mexico, again with an afternoon and 

evening session. The main purpose of 

this meeting was to update the public 

on EPA’s recertification/completeness 

schedule and provide more in-depth, 

technical information related to 

stakeholder questions and comments 

raised at the first series of meetings. 

All of the issues raised at these 

meetings have been addressed by EPA 

in the Compliance Application Review 


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70594 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 

Documents (CARDs) under the relevant 

section. 

C. Public Comments on Recertification 

EPA posted the recertification 

application on its Web site immediately 

following receipt. EPA formally 

announced receipt of the recertification 

application in the Federal Register on 

June 16, 2009. The notice also officially 

opened the public comment period on 

the recertification application. 

For recertification, EPA sought public 

comments and input related to the 

changes in DOE’s application that may 

have a potential impact on WIPP’s 

ability to remain in compliance with 

EPA’s disposal regulations. 

The comment period on the 

recertification application closed 396 

days after it opened, on August 16, 

2010. This closing date was 30 days 

after EPA’s announcement in the 

Federal Register that the recertification 

application was complete. 

EPA received 13 sets of written public 

comments during the public comment 

period. EPA considered significant 

comments from the written submissions 

and the stakeholder meetings in its 

evaluation of continuing compliance. 

EPA addresses these comments in 

CARDs that are relevant to each topic. 

Additionally, a listing of all comments 

received and responses to each is 

included in Appendix 15–C of CARD 

15. 

In addition to comments on specific 

sections of 40 CFR part 194, EPA 

received comments on general issues. 

Some people commented on 

transportation concerns related to WIPP 

shipments (which are governed by U.S. 

Department of Transportation 

regulations, not EPA) being brought into 

the State of New Mexico, as well as the 

‘‘expansion’’ of WIPP and associated 

nuclear energy activities. 

As previously mentioned, EPA 

provided guidance to DOE on numerous 

occasions regarding its expectations for 

the first recertification application. In 

response to public comments received 

during the first recertification, EPA and 

DOE also discussed ways in which both 

parties could improve the overall 

recertification process. 

One such example is the structure of 

the CRA–2009. Rather than being 

organized in a chapter format that was 

established with the initial CCA and the 

CRA–2004, DOE structured the CRA– 

2009 to mimic the structure of 40 CFR 

part 194, which is organized into topical 

sections of the rule. This format follows 

the format used by the Agency’s CARDs 

and helped to facilitate EPA and 

stakeholder reviews of the application 

by allowing a more direct evaluation of 

any changed information with respect to 

previous applications. 

After receipt of the CRA–2009 by EPA 

and subsequent submissions of 

additional information sent by DOE, the 

Agency promptly issued its 

completeness determination. Once the 

recertification application was deemed 

complete, EPA conducted its technical 

evaluation and is issuing the 

recertification decision within the sixmonth timeframe specified by the WIPP 

LWA. 

EPA believes that with continued 

experience, future recertifications 

should become less lengthy. The 

Agency intends to continue to work 

with DOE and interested stakeholders to 

discuss and work on improving future 

recertification applications and 

processes. 

VII. Where can I get more information 

about EPA’s WIPP-related activities? 

A. Supporting Documents for 

Recertification 

The Compliance Application Review 

Documents, or CARDs, contain the 

detailed technical rationale for EPA’s 

recertification decision. The CARDs 

discuss DOE’s compliance with each of 

the individual requirements of the WIPP 

Compliance Criteria. The document 

discusses background information 

related to each section of the 

compliance criteria, restates the specific 

requirement, reviews the 1998 

certification decision and 2006 

recertification decision, summarizes 

changes in the 2009 CRA, and describes 

EPA’s compliance review and 

decision—most notably, any changes 

that have occurred since the 2006 

recertification decision. The CARDs also 

list additional EPA technical support 

documents and any other references 

used by EPA in rendering its decision 

on compliance. All technical support 

documents and references are available 

in the Agency’s dockets, via http:// 

www.regulations.gov (FDMS Docket ID 

No. EPA–HQ–OAR–2009–0330) or Air 

Docket A–98–49, with the exception of 

generally available references and those 

documents already maintained by DOE 

or its contractors in locations accessible 

to the public. For more detailed 

information on EPA’s recertification 

decision, there are a number of 

technical support documents available, 

which can also be found in the 

aforementioned docket locations and 

our WIPP Web site. 

B. WIPP Web Site & WIPP–NEWS E-Mail 

Listserv 

For more general information and 

updates on EPA’s WIPP activities, 

please visit our WIPP Internet homepage 

at http://www.epa.gov/radiation/wipp. 

A number of documents (including 

DOE-submitted recertification materials, 

letters, Federal Register notices, 

outreach materials, hearings transcripts, 

as well as technical support documents) 

are available for review or download in 

Adobe .pdf format. The Agency’s WIPP– 

NEWS e-mail listserv, which 

automatically sends messages to 

subscribers with up-to-date WIPP 

announcements and information, is also 

available online. Any individuals 

wishing to subscribe to the listserv can 

join by visiting https://lists.epa.gov/ 

read/all_forums/subscribe?name=wippnews or by following the instructions 

listed on our WIPP Web site. 

C. Dockets 

In accordance with 40 CFR 194.67, 

EPA maintains public dockets via 

http://www.regulations.gov (FDMS 

Docket ID No. EPA–HQ–OAR–2009– 

0330) and hard copies in Air Docket A– 

98–49 that contain all the information 

used to support the Agency’s decision 

on recertification. The Agency 

established and maintains the formal 

rulemaking docket in Washington, DC, 

as well as informational dockets in three 

locations in the State of New Mexico 

(Carlsbad, Albuquerque, and Santa Fe). 

The docket consists of all relevant, 

significant information received to date 

from outside parties and all significant 

information considered by EPA in 

reaching a recertification decision 

regarding whether the WIPP facility 

continues to comply with the disposal 

regulations. 

As part of the eRulemaking Initiative 

under the President’s Management 

Agenda, the Federal Docket 

Management System (FDMS) was 

established in November 2005. FDMS 

was created to better serve the public by 

providing a single point of access to all 

Federal rulemaking activities. 

The final recertification decision and 

supporting documentation can be found 

on EPA’s WIPP Web site (http:// 

www.epa.gov/radiation/wipp) or the 

regulations.gov Web site (http:// 

www.regulations.gov) by searching for 

Docket ID No. EPA–HQ–OAR–2009– 

0330. For more information related to 

EPA’s public dockets (including 

locations and hours of operation), please 

refer to Section 1.A.1 of this document. 

VIII. What happens next for WIPP? 

What is EPA’s role in future WIPP 

activities? 

EPA’s regulatory role at WIPP does 

not end with this recertification 

decision. The Agency’s future WIPP 

activities will include additional 


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Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Rules and Regulations 70595 

recertifications every five years (the next 

being scheduled to begin in March 

2014), review of DOE reports on 

conditions and activities at WIPP, 

assessment of waste characterization 

and QA programs at waste generator 

sites, announced and unannounced 

inspections of WIPP and other facilities, 

and, if necessary, modification, 

revocation, or suspension of the 

certification. 

Although not required by the 

Administrative Procedures Act (APA), 

the WIPP LWA, or the WIPP 

Compliance Criteria, EPA intends to 

continue docketing all inspection or 

audit reports and annual reports and 

other significant documents on 

conditions and activities at WIPP. 

EPA plans to conduct future 

recertification processes using a similar 

process to that completed by EPA for 

this recertification, as described in 

today’s action. For example, EPA will 

publish a Federal Register notice 

announcing its receipt of the next 

compliance application and our intent 

to conduct such an evaluation. The 

application for recertification will be 

placed in the docket, and at least a 30- 

day period will be provided for 

submission of public comments. 

Following the completeness 

determination, EPA’s decision on 

whether to recertify the WIPP facility 

will again be announced in a Federal 

Register notice (§ 194.64). 

Dated: November 9, 2010. 

Michael P. Flynn, 

Director, Office of Radiation and Indoor Air. 

[FR Doc. 2010–28806 Filed 11–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Part 45 

[Docket No. USCG–1998–4623] 

RIN 1625–AA17 

Limited Service Domestic Voyage Load 

Lines for River Barges on Lake 

Michigan 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing a special load line regime 

for certain unmanned dry-cargo river 

barges to be exempted from the normal 

Great Lakes load line assignment while 

operating on Lake Michigan. Depending 

on the route, eligible barges may obtain 

a limited domestic service load line 

assignment or be conditionally 

exempted from any load line assignment 

at all. This special load line regime 

allows river barges operating under safe 

conditions to directly transport nonhazardous cargoes originating at inland 

river ports as far as Milwaukee and 

Muskegon, resulting in significant cost 

savings. 

DATES: This final rule is effective 

December 20, 2010. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–1998–4623 and are 

available for inspection or copying at 

the Docket Management Facility (M–30), 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. You may also 

find this docket on the Internet by going 

to http://www.regulations.gov, inserting 

USCG–1998–4623 in the ‘‘Keyword’’ 

box, and then clicking ‘‘Search.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Mr. Thomas Jordan, Office of 

Design and Engineering Standards, 

Naval Architecture Division (CG–5212), 

Coast Guard; telephone 202–372–1370, 

e-mail Thomas.D.Jordan@uscg.mil. If 

you have questions on viewing or 

submitting material to the docket, call 

Ms. Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble 

I. Abbreviations 

II. Regulatory History 

III. Basis and Purpose 

IV. Background 

A. Initial Request From the Port of 

Milwaukee 

B. Risk Assessment of the Milwaukee 

Route 

C. Interim Rule and Conditional Exemption 

D. Subsequent Operational Experience 

E. Coast Guard Oversight and Concerns 

V. Discussion of Comments and Changes 

A. Discussion of Interim Rule (IR) Changes 

B. Discussion of Interim Rule (IR) 

Comments 

VI. Regulatory Analyses 

A. Regulatory Planning and Review 

B. Small Entities 

C. Assistance for Small Entities 

D. Collection of Information 

E. Federalism 

F. Unfunded Mandates Reform Act 

G. Taking of Private Property 

H. Civil Justice Reform 

I. Protection of Children 

J. Indian Tribal Governments 

K. Energy Effects 

L. Technical Standards 

M. Environment 

I. Abbreviations 

ABS American Bureau of Shipping 

COI Collection of Information 

DHS Department of Homeland Security 

HazMat Hazardous Material 

HP Horsepower 

IR Interim Rule 

ITB Integrated tug/barge 

MarAd (United States) Maritime 

Administration 

MSO Marine Safety Office 

MSU Marine Safety Unit 

NEPA National Environmental Policy Act 

of 1969 

NPRM Notice of proposed rulemaking 

NTTAA National Technology Transfer and 

Advancement Act 

OMB Office of Management and Budget 

OCMI Officer in Charge, Marine Inspection 

SCA Small Craft Advisory 

Stons Short tons 

VHF Very High Frequency 

II. Regulatory History 

On May 29, 1992, the Coast Guard 

published a notice in the Federal 

Register (57 FR 22663) establishing a 

limited service domestic load line route 

on western Lake Michigan between 

Chicago, IL (Calumet Harbor), and 

Milwaukee, WI, and authorizing the 

American Bureau of Shipping (ABS) to 

issue load line certificates accordingly. 

The notice also requested public 

comment. On September 21, 1992, we 

published a follow-up notice (57 FR 

43479) discussing the public comments 

that we received, and making minor 

revisions to the requirements. 

On March 31, 1995, we published a 

notice in the Federal Register (60 FR 

16693) establishing a second route along 

the east side of Lake Michigan between 

Chicago, IL, and St. Joseph, MI. In the 

notice, we specified that the lead barge 

in the tow must have a raked bow, but 

allowed the initial load line survey of 

barges that were less than 10 years old 

to be conducted afloat. 

On September 28, 1995, we published 

a notice in the Federal Register (60 FR 

50234) removing the raked bow 

requirement. 

On August 26, 1996, we published a 

notice in the Federal Register (61 FR 

43804) extending the St. Joseph route 

farther up the east side of Lake 

Michigan to Muskegon, MI. 

On November 2, 1998, we published 

a notice of proposed rulemaking 

(NPRM) in the Federal Register titled 

‘‘Limited Service Domestic Voyage Load 

Lines for River Barges on Lake 

Michigan’’ (63 FR 58679). This NPRM 

proposed to incorporate the abovedescribed Lake Michigan load line 


jdjones on DSK8KYBLC1PROD with RULES