[Federal Register Volume 79, Number 195 (Wednesday, October 8, 2014)]
[Rules and Regulations]
[Pages 60750-60756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24025]



40 CFR Part 194

[EPA-HQ-OAR-2013-0684; FRL-9917-57-OAR]
RIN 2060-AR60

Criteria for the Certification and Recertification of the Waste 
Isolation Pilot Plant's Compliance With the Disposal Regulations; Panel 
Closure Redesign

AGENCY: Environmental Protection Agency.

ACTION: Final rule.


SUMMARY: With this document, the U.S. Environmental Protection Agency 
(EPA, or the Agency) approves the U.S. Department of Energy's (DOE, or 
the Department) planned change request to implement the Run-of-Mine 
Panel Closure System (ROMPCS) at the Waste Isolation Pilot Plant (WIPP) 
and amends the WIPP Compliance Criteria to allow an EPA-approved panel 
closure other than the currently-required Option D design. Technical 
analyses demonstrate that, with the modified panel closure design, WIPP 
remains in compliance with the 10,000 year release limits set by the 
``Environmental Standards for the Management and Disposal of Spent 
Nuclear Fuel, High-Level and Transuranic (TRU) Radioactive Waste.'' The 
changes do not lessen the requirements for complying with the 
Compliance Criteria, nor do these changes impact the technical approach 
that the EPA will employ when considering any future planned changes to 
the panel closure system. Compliance with environmental or public 
health regulations other than the EPA's long-term radioactive waste 
disposal regulations and WIPP Compliance Criteria is not addressed by 
today's action.

DATES: Effective October 8, 2014.

ADDRESSES: 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. 
The EPA has established a docket for this action under Docket ID No. 
[EPA-HQ-OAR-2013-0684; FRL-9917-57-OAR]. Publicly available docket 
materials related to this action (e.g., the Technical Support document 
[TSD]) are available either electronically through www.regulations.gov, 
on the Agency's WIPP Web site (http://www.epa.gov/radiation/wipp) or in 
hard copy at the Air and Radiation Docket in the EPA Docket Center, 
(EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, 
DC 20004. 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. In 
accordance with the 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 

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; email 
address: lee.raymond@epa.gov or walsh.jonathan@epa.gov.


Preamble Acronyms and Abbreviations

    Several acronyms and terms used to describe components of the WIPP 
disposal system and performance assessment computer models are included 
in this preamble. To ease the reading of this preamble and for 
reference purposes, the following terms are defined here:

BRAGFLO Computer model used to simulate brine and gas flow
CBFO Carlsbad Field Office
CCA Compliance Certification Application
CCDF Complementary Cumulative Distribution Function
CFR Code of Federal Regulations
DBR Direct Brine Release
DOE U.S. Department of Energy
DRZ Disturbed Rock Zone
EPA U.S. Environmental Protection Agency
FEPs Features, Events and Processes
LWA Land Withdrawal Act
MSHA Mine Safety and Health Administration
NMED New Mexico Environment Department
OPC Ordinary Portland Cement
PA Performance Assessment
PABC Performance Assessment Baseline Calculation
PAVT Performance Assessment Verification Test
PCS Panel Closure System
PCS-2012 Panel Closure System 2012 Performance Assessment
PCR Planned Change Request
PC3R Panel Closure Redesign and Repository Reconfiguration 
Performance Assessment
PMR Permit Modification Request

[[Page 60751]]

RCRA Resource Conservation and Recovery Act
ROM Run-of-Mine
ROMPC, or ROMPCS Run-of-Mine Salt Panel Closure System
SMC Salado Mass Concrete
SNL Sandia National Laboratories
TRU Transuranic
TSD Technical Support Document
VOC Volatile Organic Compound
WIPP Waste Isolation Pilot Plant

Table of Contents

I. What is the WIPP?
II. What did the EPA propose?
    A. Approving the ROMPCS
    B. Modifying Condition 1
III. How did the EPA incorporate public comments in the final rule?
IV. Administrative Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 12898
    F. National Technology Transfer & Advancement Act of 1995
    G. Executive Order 13045: Children's Health Protection
    H. Executive Order 13132: Federalism
    I. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    J. Executive Order 13211: Energy Effects

I. What is the WIPP?

    The WIPP is a disposal system for defense-related transuranic (TRU) 
radioactive waste. Developed by the DOE, the WIPP is located near 
Carlsbad in southeastern New Mexico. At the WIPP, radioactive waste is 
disposed of 2,150 feet underground in an ancient formation of salt 
which will eventually ``creep'' and encapsulate the waste. The WIPP has 
a total capacity of 6.2 million cubic feet of waste.
    Congress authorized the development and construction of the 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\ 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 nano-curies per gram of waste.\2\ Most 
TRU waste disposed 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, soil and 
organic or inorganic sludges. Some TRU waste is mixed with hazardous 
chemicals. The waste to be disposed 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.

    \1\ Department of Energy National Security and Military 
Applications of Nuclear Energy Authorization Act of 1980, Public Law 
96-164, section 213.
    \2\ WIPP Land Withdrawal Act, Public Law 102-579, section 2(18), 
as amended by the 1996 WIPP LWA Amendments, Public Law 104-201.

    The WIPP Land Withdrawal Act (LWA), initially passed by Congress in 
1992 and amended in 1996, provides the EPA authority to oversee and 
regulate the WIPP for compliance with EPA's long-term radioactive waste 
disposal regulations. In 1996, the Agency issued the WIPP Compliance 
Criteria, which are found at 40 CFR part 194.\3\ After reviewing DOE's 
Compliance Certification Application (CCA), the Agency issued its 
certification decision on May 18, 1998, as required by Section 8 of the 
WIPP LWA (63 FR 27354-27406), determining that the WIPP met the 
standards for radioactive waste disposal. The complete record and basis 
for the EPA's 1998 certification decision can be found in Air Docket A-

    \3\ 61 FR 5224-5245 (February 9, 1996).

    EPA's certification of WIPP's performance was based upon the 
repository design the Department submitted in Chapter 3 of the CCA. The 
underground waste disposal region at WIPP is divided into panels. A 
panel is a group of rooms mined into the salt, connected by tunnels 
called drifts. When all of the rooms of a panel are filled with waste, 
the DOE intends to seal the drifts with engineered structures called 
panel closures.

[[Page 60752]]


    In the CCA, the Department presented four options for the design of 
the panel closure system, but did not specify which would be 
constructed at the WIPP facility. The Agency based its certification 
decision on the DOE's use of the most robust design, referred to in the 
CCA as ``Option D''. Condition 1, requiring DOE to Implement the Option 
D panel closure system, was appended to 40 CFR part 194 as part of the 
certification decision. (63 FR 27354, May 18, 1998) The Option D design 
called for the drift to be sealed using a concrete block wall and a 
poured concrete monolith.
    The Department submitted a PCR to the EPA on September 28, 2011, 
proposing to alter the panel closure design. Citing experience and data 
gained since the CCA, the DOE's PCR states that the Option D panel 
closure would be extremely difficult and costly to install, and that 
the highly engineered design is unnecessary for either worker safety or 
environmental protection during the operational period. The DOE instead 
proposed a new panel closure design, the Run-of-Mine Salt Panel Closure 
System (ROMPCS), which consists of mined salt emplaced between steel 

II. What did EPA propose?

    The EPA completed a technical review of the DOE's PCR and 
supporting documentation. The goal of the Agency's technical review 
process was to determine whether, with the new design, the WIPP 
adequately demonstrates compliance with the requirements of 40 CFR part 
194 and the release limits of 40 CFR part 191, Subparts B and C. This 
process is fully documented in the TSD, ``Review of the DOE's Planned 
Change Request to Modify the WIPP Panel Closure System,'' (EPA-HQ-OAR-
2013-0684-0002) and discussed in the notice of proposed rulemaking (78 
FR 72612, Dec. 3, 2013). The Agency concluded that the WIPP will remain 
in compliance with its release limits with the ROMPCS design. The 
Agency therefore proposed to approve the DOE's PCR to implement the 
redesigned panel closure at the WIPP, and to modify 40 CFR part 194 
Appendix A, Condition 1 to allow panel closure designs other than 
Option D, as long as DOE has demonstrated WIPP's continued compliance 
with the long-term release standards.

A. Approving the ROMPCS

    The EPA's Compliance Criteria at 40 CFR part 194 does not require a 
panel closure for the purpose of long-term compliance with release 
limits for radionuclides. The purpose of 40 CFR part 194 is to 
demonstrate compliance with the disposal regulations at 40 CFR part 191 
for containment of

[[Page 60753]]

radionuclides, which specify that long-term releases of radionuclides 
to the accessible environment must be unlikely to exceed specific 
release limits for 10,000 years after disposal, based on the amount of 
waste in the repository at the time of closure (Sec.  194.31). 
Assessment of the likelihood that the WIPP will not exceed release 
limits is accomplished through a process called performance assessment, 
or PA. The WIPP PA process culminates in a series of computer 
simulations that model the physical attributes of the disposal system 
(e.g., site characteristics, waste forms and quantities, engineered 
features) in a manner that captures the behaviors and interactions 
among its various components. The results of the PA indicate the 
probability of exceeding various levels of normalized releases (Sec.  
194.34). Because the Agency based its certification of the WIPP's 
compliance with the disposal regulations on the accurate representation 
of the repository in performance assessment, including a panel closure, 
Condition 1 was appended to 40 CFR part 194 during the certification of 
the WIPP. No other design feature of the repository is required by the 
Compliance Criteria in a similarly explicit way.
    The Option D panel closure design consists of a 12-foot thick 
``explosion-isolation wall'' constructed of solid concrete blocks 
filling the drift on the waste disposal side, a short section of open 
drift called an ``isolation zone'' and a monolithic concrete barrier on 
the side of the open drift. Fractured rock in the immediate vicinity of 
the drift--called the disturbed rock zone, or DRZ--would be removed, 
and the resulting void space filled by the concrete monolith. In its 
current PCR, the DOE states that ``large scale testing has demonstrated 
that using SMC [Salado Mass Concrete] cannot meet the design and 
performance requirements for the panel closures as specified in the 
CCA.'' Even if the Option D monolith could be constructed as planned, 
the Agency acknowledges that it would be installed at significant cost 
to the Department. Additional occupational hazards would be incurred by 
moving and pouring large amounts of concrete in the underground and 
disposal operations would be significantly disrupted as well.
    The DOE's new panel closure design, the ROMPCS, consists primarily 
of run-of-mine (ROM) salt--impure halite that has been mined in the 
course of normal repository operations and not subjected to additional 
processing or grading. The ROMPCS design consists of two standard steel 
ventilation bulkheads with a minimum of 100 feet of run-of-mine (ROM) 
salt between them, filling the drift from floor to ceiling. In Panels 
1, 2 and 5, where explosion walls have already been constructed, salt 
will be placed directly against the explosion wall and a standard steel 
ventilation bulkhead placed on the outer end of the panel closure. The 
DOE has stated that the ROMPCS will provide adequate protection during 
the operational period. Upon initial emplacement, the run-of-mine salt 
will exhibit the properties of a loosely consolidated or unconsolidated 
material. Over time, as the open areas of the repository close due to 
salt creep, the panel closures will consolidate and eventually heal to 
a state resembling intact salt.
    As in the past, the Agency's consideration of the panel closure 
system focused on its representation in repository performance 
assessment, so that the EPA can ultimately certify the WIPP's ability 
to meet long-term performance standards. In support of its panel 
closure PCR, the DOE initially submitted a performance assessment 
calculation called the Panel Closure Redesign and Repository 
Reconfiguration (PC3R) PA, which incorporated multiple planned changes. 
The Agency determined that to approve the PCR, it was necessary to 
isolate the impacts, if any, of the change in panel closure design. In 
response, the DOE prepared the PCS-2012 PA, with the explicit goal of 
changing only those aspects of the current baseline PA that are 
directly related to the change in the panel closure design. Thus, 
results of the PCS-2012 PA may be directly compared to results of the 
current Performance Assessment Baseline Calculation (PABC-09) to see 
the impact of changes in the panel closure on modeled releases from the 
facility. The EPA undertook a review of the PCS-2012 PA. The majority 
of the technical effort expended by the Agency was spent determining 
how the changes in the panel closures should be represented in the 
performance assessment models. The entire review process is fully 
documented in the Agency's TSD, ``Review of DOE's Planned Change 
Request to Modify the WIPP Panel Closure System.'' (EPA-HQ-OAR-2013-
0684-0002) Based on its review and on the results of performance 
assessment, the Agency concludes that the WIPP will continue to comply 
with the EPA's disposal standards with the ROMPCS. Therefore, the 
Agency proposed to approve the DOE's PCR and allow the implementation 
of the ROMPCS design at the WIPP.

B. Modifying Condition 1

    The Option D panel closure is currently required by 40 CFR part 
194, Appendix A, Condition 1. Therefore, accepting a redesigned panel 
closure requires modification of Condition 1. Condition 1 was appended 
to 40 CFR part 194 because the DOE presented multiple panel closure 
options, and the EPA originally certified the WIPP's performance based 
on the expected properties of the Option D panel closure. It is the 
only engineered aspect of the repository design that is explicitly 
required by rule. At this time, DOE has proposed a single panel closure 
that it intends to implement in all waste panels at WIPP. Furthermore, 
at the time of the CCA, limited performance assessment results were 
available to indicate the impact of the panel closure design on 
repository performance. Due to the evolution of the WIPP PA since the 
CCA, the DOE and the EPA have gained a greater understanding of panel 
closures' influence on PA results. Changes to the representation of the 
panel closure in the performance assessment models have resulted in 
small differences in the results, indicating that the panel closure 
design does not disproportionately impact the long-term performance of 
WIPP compared to other design features of the repository. For these 
reasons, the Agency does not believe that it is necessary or 
appropriate for the specific design of the panel closure to remain as a 
condition of certification. Rather, panel closures should be treated in 
a similar manner as any other engineered feature of the repository.
    This change does not grant the DOE the ability to alter the panel 
closure design at will. As with any engineered component of the 
disposal system, the Agency must be informed of any departure from the 
current, approved design as required by Sec.  194.4(b)(3)(i). The EPA 
would expect such a request to be supported by complete technical 
documentation, including any updated information concerning ``the 
geology, hydrology, hydrogeology, and geochemistry of the WIPP disposal 
system'' and ``WIPP materials of construction, standards applied to 
design and construction,'' as required by Sec.  194.14, Content of 
certification applications. The Agency would use this information to 
determine whether or not the WIPP remains in compliance with the 
disposal standards. As with any other planned change, based on the 
potential impact to the WIPP's compliance, the EPA would determine 
whether the change ``departs significantly from the most recent

[[Page 60754]]

compliance application,'' and must be addressed by rule in accordance 
with Sec.  194.65.

III. How did the EPA incorporate public comments in the final rule?

    The EPA held informal public meetings in Carlsbad, New Mexico, on 
December 5, 2012, and Santa Fe, New Mexico, on December 6, 2012, to 
provide the public with background on the DOE's panel closure system 
planned change request, and to give the public the opportunity to raise 
any technical issues that the Agency should consider in its decision. 
After publishing the notice of proposed rulemaking, the EPA held public 
meetings in Carlsbad and Albuquerque on January 22 and 23, 2014. 
Summaries of these meetings have been included in the docket.
    In addition to comments delivered verbally, the Agency received 
seven sets of written comments. The majority of these comments 
expressed support of DOE's planned change, and of EPA's proposed 
approval. No comments of a technical nature were submitted, and 
therefore no further analysis needed to be performed in response to 
comments. One set of comments raised valid questions about further 
changes to the panel closure design. In response, EPA made a minor 
clarification to the rule language.
    Several commenters expressed appreciation for the ability to voice 
their comments. The EPA feels that public participation has 
strengthened the WIPP regulatory program, and remains committed to 
involve the public in its decision process.
    Many commenters stated that the ROMPCS design will meet regulatory 
requirements, while reducing operational costs and occupational 
hazards. The EPA focused on WIPP's ability to meet regulatory release 
standards, but has acknowledged DOE's stated operational motivations 
for revising the panel closure design.
    Several commenters expressed confidence in the performance 
assessment calculations that the EPA relied on to reach its decision. 
Others pointed out that salt is an appropriate material for a panel 
closure because salt is being relied upon to encapsulate waste in every 
direction except the panel closure. The Agency agrees with the use of a 
material that is physically and chemically compatible with the 
repository environment, and has relied on a body of data indicating 
that in time, the salt panel closure will return to a physical state 
similar to the halite that surrounds it.
    Many commenters expressed confidence that, based upon monitoring 
data taken in the underground, the ROMPCS will be adequate to protect 
workers and the public against hydrogen, methane, and VOCs during the 
operational life of the repository. As stated in the Notice of Proposed 
Rulemaking, it is the responsibility of the New Mexico Environment 
Department to evaluate the ability of the ROMPCS to perform these 
functions, and DOE must demonstrate the adequacy of the panel closure 
design to the NMED through a parallel process. One commenter expressed 
concern that EPA's approval of DOE's PCR will unduly influence the NMED 
permit modification process, and suggested the Agency defer its 
decision. The Agency disagrees with this viewpoint. Whenever it 
proposes any change to the repository system, it is the responsibility 
of DOE to demonstrate compliance to each regulator independently. NMED 
must determine whether the design adequately protects against VOCs, 
regardless of EPA's determination of WIPP's compliance with the long-
term disposal standards.
    The same commenter pointed out that the proposed rule language 
stated that ``any'' change to the design must be submitted to EPA as a 
planned change request, and expressed concern that if the change 
process imposed by EPA is overly burdensome, DOE loses flexibility in 
meeting NMED requirements. The EPA designed the rule to allow 
flexibility in approaching future changes to the design. By eliminating 
the absolute necessity of a rulemaking, the Agency will be able to 
employ a graded approach when considering any future changes to the 
panel closure design requested by DOE. Because it is the responsibility 
of the EPA to determine that the compliance model reasonably reflects 
the actual design of the repository, DOE must inform EPA of any change 
to the panel closure design described in DOE's current PCR. Depending 
on the scope of the changes, however, DOE may not need to provide the 
level of documentation typically included in a planned change request. 
As an example, the Agency has determined that steel ventilation 
bulkheads do not impact long-term performance, and need not be 
represented in the compliance models. It is unlikely that any 
additional analysis would be required to approve a change to the 
configuration of ventilation bulkheads, because the compliance model 
used to approve the design remains valid. The language of the proposed 
rule seemed to require a PCR for any proposed change to the panel 
closure design. The language of the rule modification has been altered 
so that DOE's obligation is to inform EPA of any proposed change. The 
Agency will determine the level of documentation necessary to evaluate 
the request.
    On February 14, 2014, an incident took place in the underground at 
WIPP, resulting in the release of a small amount of radioactive 
material to the environment and a disruption of operations at the 
facility. EPA has been closely involved in the investigation of the 
incident and has determined that it does not change the basis of this 
panel closure decision. The incident took place in the active waste 
panel. Panel closures are installed only after waste emplacement in a 
panel is complete, and therefore would not have impacted the event. 
More importantly, as described above, EPA's approval of the proposed 
ROMPCS is based upon WIPP's compliance with the long-term disposal 
standards from facility closure to 10,000 years after closure. Although 
EPA regulations limit radiation dose to the public from facility 
operations, there is no indication that DOE has violated those limits, 
and EPA does not prescribe the technical means that DOE must use to 
meet those limits. Lastly, as described above, the revised condition 
allows EPA to apply a graded approach when considering any further 
modifications to the panel closure design. It is possible that 
adjustments will be made to the design, as a result of either NMED's 
evaluation of the panel closures' ability to protect workers and the 
public from hazardous waste during facility operation, or as part of 
DOE's plan to reopen the repository. This rule change both approves a 
design that can be installed quickly if it is needed, and gives EPA the 
ability to efficiently evaluate any future changes to that design based 
on their impacts to long-term repository performance.

IV. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities; (2) create

[[Page 60755]]

a serious inconsistency or otherwise interfere with an action taken or 
planned by another Agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities or the 
principles set forth in the Executive Order. Pursuant to the terms of 
Executive Order 12866, it has been determined that this rule is not a 
``significant regulatory action.''

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') generally requires any 
federal agency to conduct a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements unless they 
certify that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises and small governmental 
jurisdictions. This rule sets forth requirements which apply only to 
federal agencies. Therefore, I certify this action will not have a 
significant economic impact on a substantial number of small entities.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paper Reduction Act, 44 U.S.C. 3501 et seq. The 
Compliance Criteria in 40 CFR part 194 requirements are applicable only 
to the DOE and the EPA and do not establish any form of collection of 
information from the public.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Public Law 104-4, establishes requirements for federal agencies to 
assess the effects of their regulatory actions on state, local and 
tribal governments and the private sector. Pursuant to Title II of the 
UMRA, we have determined that this regulatory action is not subject to 
the requirements of sections 202 and 205, because this action does not 
contain any ``federal mandates'' for state, local or tribal governments 
or for the private sector. This rule applies only to federal agencies.

E. Executive Order 12898

    Pursuant to Executive Order 12898 (59 FR 7629; February 16, 1994), 
entitled ``Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations,'' the Agency has considered 
environmental justice related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
low-income, minority and Native-American communities. We have complied 
with this mandate. However, the requirements specifically set forth by 
the Congress in the Waste Isolation Pilot Plant Land Withdrawal Act 
(Pub. L. 102-579), which prescribes the EPA's role at the WIPP, did not 
provide authority for the Agency to examine impacts in the communities 
in which wastes are produced, stored and transported, and Congress did 
not delegate to the EPA the authority to consider the issue of 
alternative locations for the WIPP. During the development of the 
existing provisions in 40 CFR part 194, the EPA involved minority and 
low income populations early in the rulemaking process. In 1993, the 
EPA representatives met with New Mexico residents and government 
officials to identify the key issues that concern them, the types of 
information they wanted from the Agency and the best ways to 
communicate with different sectors of the New Mexico public. The 
feedback provided by this group of citizens formed the basis for the 
EPA's WIPP communications and consultation plan. To help citizens 
(including a significant Hispanic population in Carlsbad and the nearby 
Mescalero Indian Reservation) stay abreast of the EPA's WIPP-related 
activities, the Agency developed many informational products and 
services. The EPA translated several documents regarding WIPP into 
Spanish, including educational materials and fact sheets describing the 
EPA's WIPP oversight role and the radioactive waste disposal standards. 
The Agency established a toll-free WIPP Information Line, recorded in 
both English and Spanish, providing the latest information on upcoming 
public meetings, publications and other WIPP-related activities. The 
EPA also developed a mailing list, which includes many low-income, 
minority and Native-American groups, to systematically provide 
interested parties with copies of EPA's public information documents 
and other materials. Even after the final rule, in 1998, the EPA has 
continued to implement outreach services to all WIPP communities based 
on the needs determined during the certification. The Agency has 
established a WIPP-NEWS email listserv to facilitate communications 
with interested stakeholders not only in New Mexico and surrounding 
areas, but nationally and internationally as well. The EPA's WIPP Web 
site is also continuously updated with relevant news and updates on 
current and future WIPP activities.

F. National Technology Transfer & Advancement Act of 1995

    Section 12 of the National Technology Transfer & Advancement Act of 
1995 is intended to avoid ``re-inventing the wheel.'' It aims to reduce 
costs to the private and public sectors by requiring federal agencies 
to draw upon any existing, suitable technical standards used in 
commerce or industry. To comply with the Act, the EPA must consider and 
use ``voluntary consensus standards,'' if available and applicable, 
when implementing policies and programs, unless doing so would be 
``inconsistent with applicable law or otherwise impractical.'' We have 
determined that this regulatory action is not subject to the 
requirements of National Technology Transfer & Advancement Act of 1995 
as this rulemaking is not setting any technical standards.

G. Executive Order 13045: Children's Health Protection

    This rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885; April 23, 1997) because it does not involve 
decisions on environmental health risks or safety risks that may 
disproportionately affect children.

H. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This rule 
does not have federalism implications. It will not have substantial 
direct effects on the states, on the relationship between the national 
government and the states or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. This action revises a specific condition of 
the Compliance Criteria in 40 CFR part 194. These criteria are 
applicable only to the DOE (operator) and the EPA

[[Page 60756]]

(regulator) of the WIPP disposal facility. Thus, Executive Order 13132 
does not apply to this rule. In the spirit of Executive Order 13132, 
and consistent with the Agency's policy to promote communications 
between the EPA and state and local governments, the EPA specifically 
solicited comment on the proposed rule from state and local officials.

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000), 
requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' This rule does not 
have tribal implications, as specified in Executive Order 13175. This 
action revises a condition of the Compliance Criteria in 40 CFR part 
194. The Compliance Criteria are applicable only to Federal agencies. 
Thus, Executive Order 13175 does not apply to this rule.

J. Executive Order 13211: Energy Effects

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 194

    Environmental protection, Nuclear materials, Nuclear power plants 
and reactors, Radiation protection, Waste treatment and disposal.

    Dated: September 30, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.

    For the reasons set out in the preamble, 40 CFR part 194 is amended 
as follows:


1. The authority citation for part 194 continues to read as follows:

    Authority: Pub. L. 102-579, 106 Stat. 4777, as amended by Public 
Law 104-201, 110 Stat. 2422; Reorganization Plan No. 3 of 1970, 35 
FR 15623, Oct. 6, 1970, 5 U.S.C. app. 1; Atomic Energy Act of 1954, 
as amended, 42 U.S.C. 2011-2296 and 10101-10270.

2. Amend Appendix A to Part 194 by revising Condition 1: Sec.  
194.14(b) to read as follows:

Appendix A to Part 194--Certification of the Waste Isolation Pilot 
Plant's Compliance With the 40 CFR Part 191 Disposal Regulations and 
the 40 CFR Part 194 Compliance Criteria

* * * * *
    Condition 1: Sec.  194.14(b), Disposal system design, panel 
closure system. The Department shall close filled waste panels in a 
manner that has been specifically approved by the Agency. DOE must 
inform EPA of any modification to the approved panel closure design 
pursuant to Sec.  194.4(b)(3)(i), and provide any supporting 
information required by Sec.  194.14, Content of compliance 
certification application. The Administrator or Administrator's 
authorized representative will determine whether the change differs 
significantly from the design included in the most recent compliance 
certification, and whether the planned change would require 
modification of the compliance criteria. The EPA's approval of a 
panel closure change request requires that performance assessment 
calculations adequately represent the waste panel closure design, 
and that those calculations demonstrate the WIPP's compliance with 
the release standards set by 40 CFR part 191, Subpart B in 
accordance with Sec.  194.34, Results of performance assessments.
* * * * *
[FR Doc. 2014-24025 Filed 10-7-14; 8:45 am]