[Federal Register Volume 74, Number 114 (Tuesday, June 16, 2009)]
[Proposed Rules]
[Pages 28468-28471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 191 and 194

[EPA-HQ-OAR-2009-0330; FRL-8916-5]


Intent To Evaluate Whether the Waste Isolation Pilot Plant 
Continues To Comply With the Disposal Regulations and Compliance 
Criteria

AGENCY: Environmental Protection Agency (EPA).

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

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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.

[[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:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> E-mail: to <a href="/cdn-cgi/l/email-protection#f392de929d97de81de979c90989687b3968392dd949c85"><span class="__cf_email__" data-cfemail="c8a9e5a9a6ace5bae5aca7aba3adbc88adb8a9e6afa7be">[email protected]</span></a>.
    <bullet> Fax: 202-566-1741.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#59353c3c772b38203436373d193c2938773e362f"><span class="__cf_email__" data-cfemail="d3bfb6b6fda1b2aabebcbdb793b6a3b2fdb4bca5">[email protected]</span></a>.

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:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> 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.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.

[[Page 28470]]

    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> 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.
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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 
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

[[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.
[FR Doc. E9-14023 Filed 6-15-09; 8:45 am]
BILLING CODE 6560-50-P


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