[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:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: 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-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: [email protected].
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.
[[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.
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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
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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]
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