[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Proposed Rules]
[Pages 41421-41424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17141]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 191 and 194
[EPA-HQ-OAR-2009-0330; FRL-9175-6]
Notification of Completeness of the Department of Energy's
Compliance Recertification Application for the Waste Isolation Pilot
Plant
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of determination and close of public comment period.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA, ``we'' or ``the
Agency'') has determined that the Department of Energy's (DOE)
Compliance Recertification Application (CRA or ``application'') for the
Waste Isolation Pilot Plant (WIPP) is complete. EPA provided written
notice of the completeness decision to the Secretary of Energy on June
29, 2010. The text of the letter is contained in the SUPPLEMENTARY
INFORMATION. The Agency has determined that the application is
complete, in accordance with 40 CFR part 194, ``Criteria for the
Certification and Recertification of the WIPP's Compliance with the 40
CFR part 191 Disposal Regulations'' (Compliance Certification
Criteria). The completeness determination is an administrative step
that is required by regulation, and it does not imply in any way that
the CRA demonstrates compliance with the Compliance Criteria and/or the
disposal regulations. EPA is now engaged in the full technical review
that will determine if WIPP remains in compliance with the disposal
regulations. As required by the 1992 WIPP Land Withdrawal Act and our
implementing regulations, EPA will make a final recertification
decision within six months of issuing the completeness letter to the
Secretary of Energy.
DATES: EPA opened the public comment period upon receipt of the 2009
CRA (74 FR 28468, June 16, 2009). Comments must be received on or
before August 16, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0330, by one of the following methods:
http://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 http://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 http://www.regulations.gov or e-mail. The http://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 http://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
[[Page 41422]]
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 http://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 electronically at
http://www.regulations.gov. 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, 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.
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, WIPP 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 WIPP LWA 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
WIPP performs well enough to meet these disposal standards, EPA issued
the WIPP Compliance Criteria (40 CFR part 194) in 1996. 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 the 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 the 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 1995 (60 FR 5766-5791, Jan. 30, 1995) and in 1996
(61 FR 5224-5245, Feb. 9, 1996).
Using the process outlined in the WIPP Compliance Criteria, EPA
determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated
that the WIPP facility will comply with EPA's radioactive waste
disposal regulations at subparts B and C of 40
[[Page 41423]]
CFR part 191. EPA's certification determination permitted WIPP to begin
accepting transuranic waste for disposal, provided that other
applicable conditions and environmental regulations were met. Disposal
of TRU waste at WIPP began in March 1999.
Since the 1998 certification decision (and the initial
recertification decision in 2006) EPA has conducted ongoing independent
technical review and inspections of all WIPP activities related to
compliance with the EPA's disposal regulations. The certification
decision identified the starting (baseline) conditions for WIPP 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 operation 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 Land Withdrawal Act. The
first recertification process (2004-2006) included a review of all of
the changes made at WIPP since the original 1998 EPA certification
decision up until the receipt of the initial CRA in March 2004. This
second recertification process includes a review of all the changes
made at the facility since March 2004.
Recertification is not a reconsideration of the decision to open
WIPP, but a process to reaffirm that WIPP 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.
EPA received DOE's initial CRA on March 26, 2004, and subsequently
opened a public comment period on the application and the Agency's
intent to evaluate compliance with the disposal regulations and
compliance criteria in the Federal Register (69 FR 29646, May 24,
2004). Following a number of requests for additional information from
DOE, EPA issued its completeness determination on October 20, 2005 (70
FR 61107-61111). After analyzing public comments and completing its
technical review, the Agency then announced the first WIPP
recertification decision on March 29, 2006, via a letter to the
Secretary of Energy.
EPA received DOE's second CRA on March 24, 2009, and announced the
Agency's intent to evaluate compliance with the disposal regulations
and compliance criteria in the Federal Register (74 FR 28468-28471,
June 16, 2009). At that time, EPA also began accepting public comments
on the application.
In a letter dated June 29, 2010, from EPA's Director of the Office
of Radiation and Indoor Air to the Secretary of Energy, the Agency
notified DOE that the 2009 CRA for WIPP is complete. This determination
is solely an administrative measure and does not reflect any conclusion
regarding WIPP's continued compliance with the disposal regulations.
This determination was 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 the 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.
EPA has been reviewing the CRA for ``completeness'' since its
receipt. EPA's review identified several areas of the application where
additional information was necessary to perform a technical evaluation.
EPA sent five letters to DOE requesting additional information, which
are detailed below:
May 21, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0004)--EPA
requested additional information on the performance assessment and
chemical portions of the CRA-2009.
July 16, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0005)--EPA
requested additional information on waste inventory, performance
assessment calculations/code documentation, human intrusion, and
chemistry (including karst comments raised by stakeholders).
October 19, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0006)--
EPA requested additional information on waste inventory, chemistry,
features/events/processes (FEPs), and performance assessment
paramaters/codes.
January 25, 2010 (addendum to 5/21/09 letter via e-mail;
Docket ID: EPA-HQ-OAR-2009-0330-0013, 0013.1)--EPA requested additional
information conceptual models and modeling calculations.
February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0015)--
EPA requested additional information on repository chemistry issues.
DOE submitted the requested information with a series of ten
letters, which were sent on the following dates:
August 24, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0007,
0007.1-0007.4).
September 30, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0008,
0008.1-0008.9).
November 25, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0011,
0011.1-0011.3).
January 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0008,
0008.1-0008.9).
February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0012,
0012.1-0012.6).
March 31, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0014,
0014.1-0014.3).
April 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0016,
0016.1-0016.3).
April 19, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0017,
0017.1).
May 26, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0018,
0018.1-0018.3).
June 24, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0025,
0025.1-0025.2).
All completeness related correspondence was placed in our dockets
(DOCKET ID: EPA-HQ-OAR-2009-0330) and on our WIPP Web site (http://www.epa.gov/radiation/wipp).
Since receipt of the 2009 CRA, the Agency has received a number of
public comments from stakeholder groups regarding both the completeness
and technical adequacy of the recertification application. In addition
to soliciting written public comments, EPA held a series of public
meetings in New Mexico (June 2009 and May 2010) to discuss stakeholders
concerns and issues related to WIPP recertification. These comments
helped in developing EPA's
[[Page 41424]]
requests for additional information from DOE, particularly regarding
the WIPP waste inventory and groundwater (karst) issues.
EPA will now undertake a full technical evaluation on the complete
2009 CRA in determining whether the WIPP continues to comply with the
radiation protection standards for disposal. EPA will also consider any
additional public comments and other information relevant to WIPP's
compliance. The Agency is most interested in whether new or changed
information has been appropriately incorporated into performance
assessment calculations for WIPP, and whether the potential effects of
changes are properly characterized.
If EPA approves the application, it will set the parameters for how
WIPP will be operated by DOE over the following five years. The
approved CRA will then serve as the baseline for the next
recertification. As required by the WIPP LWA, the Agency will make a
final recertification decision within six months of issuing its
completeness determination.
June 29, 2010
Honorable Dr. Steven Chu, Secretary U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585.
Dear Mr. Secretary: Pursuant to Section 8(f) of the Waste
Isolation Pilot Plant (WIPP) Land Withdrawal Act, as amended, and in
accordance with the WIPP Compliance Criteria at 40 CFR 194.11, I
hereby notify you that the U.S. Environmental Protection Agency (EPA
or ``the Agency'') has determined that the U.S. Department of
Energy's (DOE) 2009 Compliance Recertification Application (CRA) for
WIPP is complete. This completeness determination is an
administrative determination required under the WIPP Compliance
Criteria, which implement the Agency's Final Radioactive Waste
Disposal Regulations at Subparts B and C of 40 CFR Part 191. While
the completeness determination initiates the six-month evaluation
period provided for in Section 8(f)(2) of the Land Withdrawal Act,
it does not have any generally applicable legal effect. Further,
this determination does not imply or indicate that DOE's CRA
demonstrates compliance with the Compliance Criteria and/or the
Disposal Regulations.
Section 8(f) of the amended Land Withdrawal Act requires EPA to
evaluate all changes in conditions or activities at WIPP every five
years to determine if the facility continues to comply with EPA's
disposal regulations. This second recertification process includes a
review of all of the changes made at the WIPP facility since the
initial 2004 CRA (and subsequent recertification decision, issued in
2006) was submitted by DOE.
Under the applicable regulations, EPA may recertify the WIPP
only after DOE has submitted a ``full'' (or complete) application
(see 40 CFR 194.11). Upon receipt of the CRA on March 24, 2009, EPA
immediately began its review to determine whether the application
was complete. Shortly thereafter, the Agency began to identify areas
of the 2009 CRA that required supplementary information and
analyses. In addition, EPA received public comments and held public
meetings on the application that identified areas where additional
information was needed for EPA's review.
EPA identified completeness concerns in a series of letters/e-
mails from the Agency to Dr. Dave Moody, Manager for DOE's Carlsbad
Field Office, as well as his staff. This correspondence is detailed
below:
May 21, 2009--EPA requested additional information on
the performance assessment and chemical portions of the CRA-2009.
July 16, 2009--EPA requested additional information on
waste inventory, performance assessment calculations/code
documentation, human intrusion, and chemistry (including karst
comments raised by stakeholders).
October 19, 2009--EPA requested additional information
on waste inventory, chemistry, features/events/processes (FEPs), and
performance assessment paramaters/codes.
January 25, 2010 (addendum to 5/21/09 letter via e-
mail)-- EPA requested additional information conceptual models and
modeling calculations.
February 19, 2010--EPA requested additional information
on repository chemistry issues.
DOE submitted the requested information with a series of 11
letters, which were sent on the following dates:
August 24, 2009
September 30, 2009
November 25, 2009
January 12, 2010
February 22, 2010
March 31, 2010
April 12, 2010
April 19, 2010
May 26, 2010
June 22, 2010
June 28, 2010
All completeness-related correspondence was placed in our public
docket (EDOCKET EPA-HQ-OAR-2009-0330) and on our website (http://www.epa.gov/radiation/wipp).
Based on the information provided by DOE, we conclude that the
2009 CRA is complete. Again, this is the initial, administrative
step that indicates DOE has provided information relevant to each
applicable provision of the WIPP Compliance Criteria and in
sufficient detail for us to proceed with a full technical evaluation
of the adequacy of the application. In accordance with Section
8(f)(2) of the amended Land Withdrawal Act, EPA will make its final
recertification decision within six months of this letter.
To the extent possible, the Agency began conducting a
preliminary technical review of the application upon its submittal
by DOE, and has provided the Department with relevant technical
comments on an ongoing basis. EPA will continue to conduct its
technical review of the 2009 CRA as needed, and will convey further
requests for additional information and analyses. The Agency will
issue its compliance recertification decision, in accordance with 40
CFR Part 194 and Part 191, Subparts B and C, after it has thoroughly
evaluated the complete CRA and considered relevant public comments.
The public comment period on our completeness determination will
remain open for 30 days following the publication of this letter in
the Federal Register.
Thank you for your cooperation during our review process. Should
your staff have any questions regarding this request, they may
contact Tom Peake at (202) 343-9765 or by e-mail at
[email protected].
Sincerely,
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.
Dated: July 7, 2010.
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2010-17141 Filed 7-15-10; 8:45 am]
BILLING CODE 6560-50-P