[Federal Register Volume 79, Number 197 (Friday, October 10, 2014)]
[Proposed Rules]
[Pages 61268-61271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24260]



40 CFR Parts 191 and 194

[EPA-HQ-OAR-2014-0609; FRL-9917-73-OAR]

Review Process To Determine Whether the Waste Isolation Pilot 
Plant Continues To Comply With the Disposal Regulations and Compliance 

AGENCY: Environmental Protection Agency.

ACTION: Notice of availability; official opening of public comment 


SUMMARY: The Environmental Protection Agency (EPA, or the Agency) 
intends to evaluate whether or not the Waste Isolation Pilot Plant 
(WIPP) continues to comply with the Agency's environmental radiation 
protection standards for the disposal of radioactive waste. Pursuant to 
the 1992 WIPP Land Withdrawal Act (LWA), as amended, the

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U.S. Department of Energy (DOE, or the Department) must submit 
documentation of continued compliance with the EPA's standards for 
disposal and other statutory requirements every five years after the 
initial receipt of transuranic waste at WIPP.
    The DOE's 2014 Compliance Recertification Application (CRA) was 
received by the EPA on March 26, 2014, and a copy may be found on the 
EPA's WIPP Web site (http://www.epa.gov/radiation/wipp/2014application.html) and in the public dockets (see ADDRESSES 
Section). The EPA will determine when the DOE has provided a complete 
application; the Agency's completeness determination will be conveyed 
to the DOE and published in the Federal Register. The 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: Comments in response to DOE's 2014 recertification application 
must be received by the end of the comment period. The comment period 
will extend beyond the time when the EPA notifies the DOE that the 
recertification application is complete. 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-2014-0609, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: to [email protected].
     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-2014-0609. 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 email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov your email 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, the 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 the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters or any form of encryption and be 
free of any defects or viruses. For additional information about the 
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, 
the 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. As provided 
in the EPA's regulations at 40 CFR part 2, and in accordance with 
normal the EPA docket procedures, if copies of any docket materials are 
requested, a reasonable fee may be charged for photocopying.
    These documents are also available for review in electronic (CD/
DVD) format at the WIPP Information Center in DOE's Carlsbad Field 
Office (Skeen-Whitlock Building). The Carlsbad WIPP Information Center 
is open from 8:00 a.m. to 3:00 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the WIPP Information Center is 

FOR FURTHER INFORMATION CONTACT: Ray Lee, Office of Radiation and 
Indoor Air, Radiation Protection Division, Center for Radiation 
Information and Outreach, Mail Code 6608T, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460; 
telephone number: 202-343-9463; fax number: 202-343-2305; email 
address: [email protected].


I. General Information

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

    1. Submitting CBI. Do not submit this information to the EPA 
through www.regulations.gov or email. Clearly mark the information that 
you claim to be CBI. For CBI information in a disk or CD-ROM that you 
mail to the 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 
     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 WIPP was authorized in 1980, under section 213 of the DOE 

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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.'' The WIPP is a disposal 
system for transuranic (TRU) radioactive waste. Developed by the 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. 
The WIPP has a total capacity of 6.2 million cubic feet of TRU waste.
    The 1992 WIPP LWA (Pub. L. 102-579) \1\ limits radioactive waste 
disposal in the 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 the 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 the WIPP derives 
from Federal facilities across the United States, including locations 
in Colorado, Idaho, New Mexico, Nevada, Ohio, South Carolina, 
Tennessee, and Washington.

    \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.

    The WIPP must meet the 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 meets these disposal standards, the Agency issued the 
1997 WIPP Compliance Criteria (40 CFR part 194), which interprets and 
implement the disposal standards specifically for the WIPP site. The 
Compliance Criteria--along with its accompanying preamble and 
supporting documents--describe what information the DOE must provide 
and how the EPA evaluates WIPP's performance and provides ongoing 
independent oversight. Thus, the Agency 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, September 19, 1985) and 1993 (58 FR 66398-66416, December 20, 
1993). For more information about 40 CFR part 194, refer to Federal 
Register notices published in 1996 (61 FR 5224-5245, February 9, 1996) 
and 1995 (60 FR 5766-5791, January 30, 1995).
    Using the process outlined in the WIPP Compliance Criteria, the EPA 
determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated 
that the WIPP complied with Agency's radioactive waste disposal 
regulations at subparts B and C of 40 CFR part 191. The EPA's 
certification determination permitted the WIPP to begin accepting TRU 
waste for disposal, provided that other applicable conditions and 
environmental regulations were met.
    Since the 1998 certification decision, the 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, the EPA and the DOE understood that 
future information and knowledge gained from the actual operations of 
the WIPP would result in changes to best practices and procedures for 
the facility.
    In recognition of this, section 8(f) of the amended WIPP LWA 
requires the EPA to evaluate all changes in conditions or activities at 
the WIPP every five years to determine if the facility continues to 
comply with the Agency's disposal regulations. 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 the DOE's submittal of 
the initial CRA, which was received by the Agency on March 26, 2004. 
The 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).
    The EPA received the Department's second CRA on March 24, 2009. The 
Agency deemed the CRA-2009 to be complete on June 29, 2010, and 
published the second WIPP recertification decision on November 18, 2010 
(75 FR 70584).
    The EPA received the Department's third CRA on March 26, 2014. 
After EPA has determined that the application is complete, the Agency 
will review the CRA-2014 to ensure that all of the changes made at the 
WIPP since the second recertification process have been accurately 
reflected and that the facility will continue to safely contain TRU 
radioactive waste. If the EPA approves the CRA-2014, it will set the 
parameters for how the WIPP will be operated by the DOE over the next 
five years. This approved CRA-2014 (along with any supplemental 
completeness information submitted by the DOE) will then serve as the 
baseline for the next recertification that will occur starting in 2019.
    An important consideration in the EPA's review of the DOE's CRA-
2014 is the radiation release that took place in the WIPP's underground 
disposal area in February 2014. Recovery activities are currently 
ongoing. EPA conducted oversight activities in response to the incident 
and these activities are discussed on EPA's Web site (http://www.epa.gov/radiation/news/wipp-news.html#wippradevent). EPA's review 
confirmed that DOE remains in compliance with EPA's standards; however, 
EPA identified several areas where improvements would enhance DOE's 
ability to provide the best possible information to the public and its 
partner agencies during a release. Although the incident took place 
after the preparation of the CRA-2014, the Department has indicated 
that changes will need to be made to the WIPP disposal system in order 
to reopen the facility and that the DOE will provide supplemental 
information to the Agency on the incident and potential ramifications 
on compliance. This

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information will be made available in the Agency's public dockets and 
posted on EPA's WIPP Web site. The EPA is currently considering how 
anticipated changes in the facility design will impact the 
recertification process.
    With today's notice, the Agency solicits public comment on the 
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 the EPA's WIPP Web site (http://www.epa.gov/radiation/wipp/2014application.html) and in the public dockets 
described in the ADDRESSES section. Other background information 
related to the Agency's recertification activities are also available 
in our public dockets and on our WIPP Web site. The EPA will evaluate 
the complete application in determining whether the WIPP continues to 
comply with the radiation protection standards for disposal. In 
addition, the EPA will consider public comment and other information 
relevant to the WIPP's compliance. The Agency is most interested in 
public comment on issues where changes have occurred that may 
potentially impact the WIPP's ability to remain in compliance with the 
requirements in the EPA's disposal regulations, as well as any areas 
where the public believes that changes have occurred and have not been 
identified by the DOE. Additionally the Agency expects to provide 
public meetings in New Mexico during the review process to encourage 
and facilitate participation by interested stakeholders.
    The first step in the recertification process is a ``completeness'' 
determination. The EPA will make this completeness determination as a 
first step in its more extensive technical review of the application. 
This determination is based on 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 the DOE with the 
preparation of any compliance application for the WIPP. It is the 
Agency's intent that these guidance documents give the DOE and the 
public a general understanding of the information that is expected to 
be included in a complete application of compliance. However, the DOE 
does not have to resubmit information already supplied to the EPA in 
prior recertification applications. Thus, the focus of each 
recertification is on any changes to the disposal system since the 
previous recertification decision (in this case, 2009-2010). The EPA 
may request additional information as necessary from the Department to 
ensure the completeness of the CRA.
    Once the 2014 recertification application is deemed complete, the 
EPA will provide the DOE with written notification of its completeness 
determination and publish a Federal Register notice announcing this 
determination. All correspondence between the EPA and the DOE regarding 
the completeness of the CRA-2014, as well as any additional 
supplemental information submitted by the Department, will be posted on 
our Web site and placed in the public dockets.
    The EPA will make a final decision as to whether the WIPP continues 
to meet the disposal regulations after each of the aforementioned steps 
(technical analysis of the application, issuance of a notice on the 
CRA-2014's completeness in the Federal Register, and analyses of public 
comment) have been completed. As required by the WIPP LWA, the Agency 
will make a final recertification decision within six months of issuing 
its completeness determination.

List of Subjects in 40 CFR Part 191 and 194

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

    Dated: October 1, 2014.
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2014-24260 Filed 10-9-14; 8:45 am]