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###### Environmental Protection Agency

          - 40 CFR Parts 191 and 194
          - [EPA-HQ-OAR-2009-0330; FRL-8916-5]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice of availability; official opening of public comment period.

# SUMMARY:

                        The Environmental Protection Agency (EPA) intends to evaluate and recertify whether or not the Waste Isolation Pilot Plant (WIPP) continues to comply with EPA's environmental radiation protection standards for the disposal of radioactive waste. Pursuant to the 1992 WIPP Land Withdrawal Act (LWA), as amended, the U.S.                               ( print page 28469)                            Department of Energy (“DOE” or “Department”) must submit to EPA documentation of continued compliance with EPA's standards for disposal and other statutory requirements every five years after the initial receipt of transuranic waste at WIPP. 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.                    

                        EPA will determine whether WIPP continues to comply with EPA's standards for disposal based on the CRA submitted by the Secretary of Energy. DOE's 2009 recertification application was received by the EPA on March 26, 2009, and a copy may be found on EPA's WIPP Web site and in the public dockets (                        *see*                         the                         **SUPPLEMENTARY INFORMATION**                         &                         **FOR FURTHER INFORMATION CONTACT**                         sections). The Director of the Office of Radiation and Indoor Air will make a determination as to the completeness of the application in the near future (approximately six months) and will notify the Secretary, in writing, when the Agency deems the application “complete.” EPA will evaluate the “complete” application in determining whether the WIPP facility continues to comply with the radiation protection standards for disposal. The Agency requests public comment on all aspects of the DOE's application.                    

# DATES:

                        We are accepting comments in response to today's document and on DOE's 2009 recertification application. The ending date of the public comment period will be specified in a subsequent                         **Federal Register**                         document. Announcements will be published in the                         **Federal Register**                         to provide information on the Agency's completeness determination and final recertification decision.                    

# ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2009-0330, by one of the following methods:
      -  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                         *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                         *www.regulations.gov*                         or e-mail. The                         *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                         *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 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                         *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 either electronically at                         *www.regulations.gov*                         or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742.                    

These documents are also available for review in electronic (CD/DVD) format at the Carlsbad Municipal Library, Hours: Monday-Thursday, 10 a.m.-9 p.m., Friday-Saturday, 10 a.m.-6 p.m., and Sunday, 1 p.m.-5 p.m., phone number: 505-885-0731. 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, Office of Radiation and Indoor Air, 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.       ( print page 28470)      
    - 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, the facility 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 Act 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.                

                    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 the WIPP facility performs well enough to meet these disposal standards, EPA issued the WIPP Compliance Criteria (40 CFR Part 194) in 1997. 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 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 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 1996 (61 FR 5224-5245, Feb. 9, 1996) and 1995 (60 FR 5766-5791, Jan. 30, 1995).                

Using the process outlined in the WIPP Compliance Criteria, EPA determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated that WIPP complied with EPA's radioactive waste disposal regulations at Subparts B and C of 40 CFR Part 191. EPA's certification determination permitted WIPP to begin accepting TRU waste for disposal, provided that other applicable conditions and environmental regulations were met.

Since the 1998 certification decision, EPA has conducted 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 the WIPP site 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 operations 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 LWA.

The first recertification process began with DOE's submittal of the initial Compliance Recertification Application (CRA), which was received by the Agency on March 26, 2004. EPA deemed the CRA-2004 to be complete on September 29, 2005, and published its first WIPP recertification decision on March 29, 2006 (71 FR 18010).

EPA received DOE's second CRA on March 24, 2009. The Agency will review DOE's 2009 recertification application to ensure that all of the changes made at WIPP since the initial recertification process (which took place from 2004-2006) have been accurately reflected and that the facility will continue to safely contain TRU radioactive waste. If EPA approves the CRA-2009, it will set the parameters for how WIPP will be operated by DOE over the following five years. This approved application will then serve as the baseline for the next recertification that will occur starting in 2014.

Recertification is not a reconsideration of the decision to open WIPP, but a process to reaffirm that the facility 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.

                    With today's notice, the Agency solicits public comment period on DOE's documentation of whether the WIPP facility continues to comply with the disposal regulations. A copy of the application is available for inspection on EPA's WIPP Web site (                    *http://www.epa.gov/​radiation/​wipp*) and in the public dockets described in the                     **SUPPLEMENTARY INFORMATION**                     section. Other background information documents related to the Agency's recertification activities also available in our public dockets and on our WIPP                           ( print page 28471)                        Web site. EPA will evaluate the complete application in determining whether WIPP continues to comply with the radiation protection standards for disposal. In addition, EPA will consider public comment and other information relevant to WIPP's compliance. The Agency is most interested in public comment on any issues where changes have occurred that may potentially impact WIPP's ability to remain in compliance with the requirements outlined in EPA's disposal regulations, as well as any areas where the public believes that changes have occurred and have not been identified by DOE.                

The first step in the recertification process is a “completeness” determination. EPA will make this completeness determination in the near future as a preliminary step in its more extensive technical review of the application. This determination will be 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 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. It is EPA's intent that these guidance documents give DOE and the public a general understanding of the information that is expected to be included in a complete application of compliance. The EPA may request additional information as necessary from DOE to ensure the completeness of the CRA.

                    Once the 2009 recertification application is deemed complete, EPA will provide DOE with written notification of its completeness determination and publish a                     **Federal Register**                     notice announcing this determination as well. All correspondence between EPA and DOE regarding the completeness of the CRA-2009 will be placed in the public dockets.                

                    EPA will make a final decision recertifying whether the WIPP facility continues to meet the disposal regulations after each of the aforementioned steps (technical analysis of the application, issuing a notice of the CRA-2009's completeness in the                     **Federal Register**                    , and analyzing public comment) have been completed. As required by the WIPP LWA, EPA will make a final recertification decision within six months of issuing its completeness determination.                

# List of Subjects in 40 CFR Parts 191 and 194

      - Environmental protection
      - Radiation protection
      - Transuranic radioactive waste
      - Waste treatment and disposal
      - Waste Isolation Pilot Plant

Dated: June 3, 2009.

Elizabeth Cotsworth,

Director, Office of Radiation and Indoor Air.

# Footnotes

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.                    
        Back to Citation      

[FR Doc. E9-14023 Filed 6-15-09; 8:45 am]

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