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[Federal Register: July 16, 2010 (Volume 75, Number 136)]
[Proposed Rules]               
[Page 41421-41424]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy10-18]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 191 and 194

[EPA-HQ-OAR-2009-0330; FRL-9175-6]

 
Notification of Completeness of the Department of Energy's 
Compliance Recertification Application for the Waste Isolation Pilot 
Plant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of determination and close of public comment period.

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SUMMARY: The Environmental Protection Agency (EPA, ``we'' or ``the 
Agency'') has determined that the Department of Energy's (DOE) 
Compliance Recertification Application (CRA or ``application'') for the 
Waste Isolation Pilot Plant (WIPP) is complete. EPA provided written 
notice of the completeness decision to the Secretary of Energy on June 
29, 2010. The text of the letter is contained in the SUPPLEMENTARY 
INFORMATION. The Agency has determined that the application is 
complete, in accordance with 40 CFR part 194, ``Criteria for the 
Certification and Recertification of the WIPP's Compliance with the 40 
CFR part 191 Disposal Regulations'' (Compliance Certification 
Criteria). The completeness determination is an administrative step 
that is required by regulation, and it does not imply in any way that 
the CRA demonstrates compliance with the Compliance Criteria and/or the 
disposal regulations. EPA is now engaged in the full technical review 
that will determine if WIPP remains in compliance with the disposal 
regulations. As required by the 1992 WIPP Land Withdrawal Act and our 
implementing regulations, EPA will make a final recertification 
decision within six months of issuing the completeness letter to the 
Secretary of Energy.

DATES: EPA opened the public comment period upon receipt of the 2009 
CRA (74 FR 28468, June 16, 2009). Comments must be received on or 
before August 16, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0330, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: to a-and-r-docket@epa.gov.
     Fax: 202-566-1741.
     Mail: Air and Radiation Docket and Information Center, 
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
    Instructions: Direct your comments to Attn: Docket ID No. EPA-HQ-
OAR-2009-0330. The Agency's policy is that all comments received will 
be included in the public docket without change and may be made 
available online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact

[[Page 41422]]

you for clarification, EPA may not be able to consider your comment. 
Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically at 
http://www.regulations.gov. 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.

FOR FURTHER INFORMATION CONTACT: Ray Lee, Radiation Protection 
Division, Center for Radiation Information and Outreach, Mail Code 
6608J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, 
Washington, DC 20460; telephone number: 202-343-9463; fax number: 202-
343-2305; e-mail address: lee.raymond@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The Waste Isolation Pilot Plant (WIPP) was authorized in 1980, 
under section 213 of the DOE National Security and Military 
Applications of Nuclear Energy Authorization Act of 1980 (Pub. L. 96-
164, 93 Stat. 1259, 1265), ``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.'' WIPP is a disposal system for transuranic (TRU) 
radioactive waste. Developed by DOE, WIPP is located near Carlsbad in 
southeastern New Mexico. TRU waste is emplaced 2,150 feet underground 
in an ancient layer of salt that will eventually ``creep'' and 
encapsulate the waste containers. WIPP has a total capacity of 6.2 
million cubic feet of TRU waste.
    The 1992 WIPP Land Withdrawal Act (LWA; Pub. L. 102-579) \1\ limits 
radioactive waste disposal in WIPP to TRU radioactive wastes generated 
by defense-related activities. TRU waste is defined as waste containing 
more than 100 nano-curies per gram of alpha-emitting radioactive 
isotopes, with half-lives greater than twenty years and atomic numbers 
greater than 92. The WIPP LWA further stipulates that radioactive waste 
shall not be TRU waste if such waste also meets the definition of high-
level radioactive waste, has been specifically exempted from regulation 
with the concurrence of the Administrator, or has been approved for an 
alternate method of disposal by the Nuclear Regulatory Commission. The 
TRU radioactive waste proposed for disposal in WIPP consists of 
materials such as rags, equipment, tools, protective gear, and sludges 
that have become contaminated during atomic energy defense activities. 
The radioactive component of TRU waste consists of man-made elements 
created during the process of nuclear fission, chiefly isotopes of 
plutonium. Some TRU waste is contaminated with hazardous wastes 
regulated under the Resource Conservation and Recovery Act (RCRA; 42 
U.S.C. 6901-6992k). The waste proposed for disposal at WIPP derives 
from Federal facilities across the United States, including locations 
in Colorado, Idaho, New Mexico, Nevada, Ohio, South Carolina, 
Tennessee, and Washington.
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    \1\ The 1992 WIPP Land Withdrawal Act was amended by the ``Waste 
Isolation Pilot Plant Land Withdrawal Act Amendments,'' which were 
part of the National Defense Authorization Act for Fiscal Year 1997.
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    WIPP must meet EPA's generic disposal standards at 40 CFR part 191, 
subparts B and C, for high-level and TRU radioactive waste. These 
standards limit releases of radioactive materials from disposal systems 
for radioactive waste, and require implementation of measures to 
provide confidence for compliance with the radiation release limits. 
Additionally, the regulations limit radiation doses to members of the 
public, and protect ground water resources by establishing maximum 
concentrations for radionuclides in ground water. To determine whether 
WIPP performs well enough to meet these disposal standards, EPA issued 
the WIPP Compliance Criteria (40 CFR part 194) in 1996. The Compliance 
Criteria interpret and implement the disposal standards specifically 
for the WIPP site. They describe what information DOE must provide and 
how EPA evaluates the WIPP's performance and provides ongoing 
independent oversight. Thus, EPA implemented its environmental 
radiation protection standards, 40 CFR part 191, by applying the WIPP 
Compliance Criteria, 40 CFR part 194, to the disposal of TRU 
radioactive waste at the WIPP. For more information about 40 CFR part 
191, refer to Federal Register notices published in 1985 (50 FR 38066-
38089, Sep. 19, 1985) and 1993 (58 FR 66398-66416, Dec. 20, 1993). For 
more information about 40 CFR part 194, refer to Federal Register 
notices published in 1995 (60 FR 5766-5791, Jan. 30, 1995) and in 1996 
(61 FR 5224-5245, Feb. 9, 1996).
    Using the process outlined in the WIPP Compliance Criteria, EPA 
determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated 
that the WIPP facility will comply with EPA's radioactive waste 
disposal regulations at subparts B and C of 40

[[Page 41423]]

CFR part 191. EPA's certification determination permitted WIPP to begin 
accepting transuranic waste for disposal, provided that other 
applicable conditions and environmental regulations were met. Disposal 
of TRU waste at WIPP began in March 1999.
    Since the 1998 certification decision (and the initial 
recertification decision in 2006) EPA has conducted ongoing independent 
technical review and inspections of all WIPP activities related to 
compliance with the EPA's disposal regulations. The 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. This determination is not 
subject to standard rulemaking procedures or judicial review, as stated 
in the aforementioned section of the WIPP Land Withdrawal Act. The 
first recertification process (2004-2006) included a review of all of 
the changes made at WIPP since the original 1998 EPA certification 
decision up until the receipt of the initial CRA in March 2004. This 
second recertification process includes a review of all the changes 
made at the facility since March 2004.
    Recertification is not a reconsideration of the decision to open 
WIPP, but a process to reaffirm that WIPP meets all requirements of the 
disposal regulations. 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.
    EPA received DOE's initial CRA on March 26, 2004, and subsequently 
opened a public comment period on the application and the Agency's 
intent to evaluate compliance with the disposal regulations and 
compliance criteria in the Federal Register (69 FR 29646, May 24, 
2004). Following a number of requests for additional information from 
DOE, EPA issued its completeness determination on October 20, 2005 (70 
FR 61107-61111). After analyzing public comments and completing its 
technical review, the Agency then announced the first WIPP 
recertification decision on March 29, 2006, via a letter to the 
Secretary of Energy.
    EPA received DOE's second CRA on March 24, 2009, and announced the 
Agency's intent to evaluate compliance with the disposal regulations 
and compliance criteria in the Federal Register (74 FR 28468-28471, 
June 16, 2009). At that time, EPA also began accepting public comments 
on the application.
    In a letter dated June 29, 2010, from EPA's Director of the Office 
of Radiation and Indoor Air to the Secretary of Energy, the Agency 
notified DOE that the 2009 CRA for WIPP is complete. This determination 
is solely an administrative measure and does not reflect any conclusion 
regarding WIPP's continued compliance with the disposal regulations.
    This determination was 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.
    EPA has been reviewing the CRA for ``completeness'' since its 
receipt. EPA's review identified several areas of the application where 
additional information was necessary to perform a technical evaluation. 
EPA sent five letters to DOE requesting additional information, which 
are detailed below:
     May 21, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0004)--EPA 
requested additional information on the performance assessment and 
chemical portions of the CRA-2009.
     July 16, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0005)--EPA 
requested additional information on waste inventory, performance 
assessment calculations/code documentation, human intrusion, and 
chemistry (including karst comments raised by stakeholders).
     October 19, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0006)--
EPA requested additional information on waste inventory, chemistry, 
features/events/processes (FEPs), and performance assessment 
paramaters/codes.
     January 25, 2010 (addendum to 5/21/09 letter via e-mail; 
Docket ID: EPA-HQ-OAR-2009-0330-0013, 0013.1)--EPA requested additional 
information conceptual models and modeling calculations.
     February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0015)--
EPA requested additional information on repository chemistry issues.
    DOE submitted the requested information with a series of ten 
letters, which were sent on the following dates:
     August 24, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0007, 
0007.1-0007.4).
     September 30, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0008, 
0008.1-0008.9).
     November 25, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0011, 
0011.1-0011.3).
     January 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0008, 
0008.1-0008.9).
     February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0012, 
0012.1-0012.6).
     March 31, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0014, 
0014.1-0014.3).
     April 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0016, 
0016.1-0016.3).
     April 19, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0017, 
0017.1).
     May 26, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0018, 
0018.1-0018.3).
     June 24, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0025, 
0025.1-0025.2).

All completeness related correspondence was placed in our dockets 
(DOCKET ID: EPA-HQ-OAR-2009-0330) and on our WIPP Web site (http://www.epa.gov/radiation/wipp).
    Since receipt of the 2009 CRA, the Agency has received a number of 
public comments from stakeholder groups regarding both the completeness 
and technical adequacy of the recertification application. In addition 
to soliciting written public comments, EPA held a series of public 
meetings in New Mexico (June 2009 and May 2010) to discuss stakeholders 
concerns and issues related to WIPP recertification. These comments 
helped in developing EPA's

[[Page 41424]]

requests for additional information from DOE, particularly regarding 
the WIPP waste inventory and groundwater (karst) issues.
    EPA will now undertake a full technical evaluation on the complete 
2009 CRA in determining whether the WIPP continues to comply with the 
radiation protection standards for disposal. EPA will also consider any 
additional public comments and other information relevant to WIPP's 
compliance. The Agency is most interested in whether new or changed 
information has been appropriately incorporated into performance 
assessment calculations for WIPP, and whether the potential effects of 
changes are properly characterized.
    If EPA approves the application, it will set the parameters for how 
WIPP will be operated by DOE over the following five years. The 
approved CRA will then serve as the baseline for the next 
recertification. As required by the WIPP LWA, the Agency will make a 
final recertification decision within six months of issuing its 
completeness determination.

June 29, 2010
Honorable Dr. Steven Chu, Secretary U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585.

    Dear Mr. Secretary: Pursuant to Section 8(f) of the Waste 
Isolation Pilot Plant (WIPP) Land Withdrawal Act, as amended, and in 
accordance with the WIPP Compliance Criteria at 40 CFR 194.11, I 
hereby notify you that the U.S. Environmental Protection Agency (EPA 
or ``the Agency'') has determined that the U.S. Department of 
Energy's (DOE) 2009 Compliance Recertification Application (CRA) for 
WIPP is complete. This completeness determination is an 
administrative determination required under the WIPP Compliance 
Criteria, which implement the Agency's Final Radioactive Waste 
Disposal Regulations at Subparts B and C of 40 CFR Part 191. While 
the completeness determination initiates the six-month evaluation 
period provided for in Section 8(f)(2) of the Land Withdrawal Act, 
it does not have any generally applicable legal effect. Further, 
this determination does not imply or indicate that DOE's CRA 
demonstrates compliance with the Compliance Criteria and/or the 
Disposal Regulations.
    Section 8(f) of the amended Land Withdrawal Act requires EPA to 
evaluate all changes in conditions or activities at WIPP every five 
years to determine if the facility continues to comply with EPA's 
disposal regulations. This second recertification process includes a 
review of all of the changes made at the WIPP facility since the 
initial 2004 CRA (and subsequent recertification decision, issued in 
2006) was submitted by DOE.
    Under the applicable regulations, EPA may recertify the WIPP 
only after DOE has submitted a ``full'' (or complete) application 
(see 40 CFR 194.11). Upon receipt of the CRA on March 24, 2009, EPA 
immediately began its review to determine whether the application 
was complete. Shortly thereafter, the Agency began to identify areas 
of the 2009 CRA that required supplementary information and 
analyses. In addition, EPA received public comments and held public 
meetings on the application that identified areas where additional 
information was needed for EPA's review.
    EPA identified completeness concerns in a series of letters/e-
mails from the Agency to Dr. Dave Moody, Manager for DOE's Carlsbad 
Field Office, as well as his staff. This correspondence is detailed 
below:
     May 21, 2009--EPA requested additional information on 
the performance assessment and chemical portions of the CRA-2009.
     July 16, 2009--EPA requested additional information on 
waste inventory, performance assessment calculations/code 
documentation, human intrusion, and chemistry (including karst 
comments raised by stakeholders).
     October 19, 2009--EPA requested additional information 
on waste inventory, chemistry, features/events/processes (FEPs), and 
performance assessment paramaters/codes.
     January 25, 2010 (addendum to 5/21/09 letter via e-
mail)-- EPA requested additional information conceptual models and 
modeling calculations.
     February 19, 2010--EPA requested additional information 
on repository chemistry issues.
    DOE submitted the requested information with a series of 11 
letters, which were sent on the following dates:
     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
     June 22, 2010
     June 28, 2010
    All completeness-related correspondence was placed in our public 
docket (EDOCKET EPA-HQ-OAR-2009-0330) and on our website (http://www.epa.gov/radiation/wipp).
    Based on the information provided by DOE, we conclude that the 
2009 CRA is complete. Again, this is the initial, administrative 
step that indicates DOE has provided information relevant to each 
applicable provision of the WIPP Compliance Criteria and in 
sufficient detail for us to proceed with a full technical evaluation 
of the adequacy of the application. In accordance with Section 
8(f)(2) of the amended Land Withdrawal Act, EPA will make its final 
recertification decision within six months of this letter.
    To the extent possible, the Agency began conducting a 
preliminary technical review of the application upon its submittal 
by DOE, and has provided the Department with relevant technical 
comments on an ongoing basis. EPA will continue to conduct its 
technical review of the 2009 CRA as needed, and will convey further 
requests for additional information and analyses. The Agency will 
issue its compliance recertification decision, in accordance with 40 
CFR Part 194 and Part 191, Subparts B and C, after it has thoroughly 
evaluated the complete CRA and considered relevant public comments. 
The public comment period on our completeness determination will 
remain open for 30 days following the publication of this letter in 
the Federal Register.
    Thank you for your cooperation during our review process. Should 
your staff have any questions regarding this request, they may 
contact Tom Peake at (202) 343-9765 or by e-mail at 
peake.tom@epa.gov.
     Sincerely,
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.

    Dated: July 7, 2010.
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2010-17141 Filed 7-15-10; 8:45 am]
BILLING CODE 6560-50-P
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