[Federal Register Volume 69, Number 100 (Monday, May 24, 2004)]
[Proposed Rules]
[Pages 29646-29649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11765]



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Part IV





Environmental Protection Agency





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40 CFR Parts 191 and 194



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

  Federal Register / Vol. 69, No. 100 / Monday, May 24, 2004 / Proposed 
Rule  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 191 and 194

[FRL -7666-9]


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; 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. Department of 
Energy (``DOE'' or ``Department'') must submit to EPA documentation of 
continued compliance with EPA's standards for disposal and other 
statutory requirements no later than 5 years after the initial receipt 
of transuranic waste at the WIPP. EPA initially certified that the WIPP 
met applicable regulatory requirements on May 18, 1998 (63 FR 27354), 
and the first shipment of waste was received at the WIPP on March 26, 
1999.
    EPA will determine whether the WIPP will continue to comply with 
EPA's standards for disposal based on the Compliance Recertification 
Application (CRA) submitted by the Secretary of Energy. DOE's 
application was received by the EPA on March 26, 2004, 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 Administrator will make a determination as to the completeness of 
the application in the near future (approximately 4-6 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 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 today's document and on DOE's compliance 
application must be received by the end of the comment period. The 
comment period will extend, at a minimum, beyond the time when EPA 
notifies 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: Comments may be submitted by mail to: EPA Docket Center 
(EPA/DC), Air and Radiation Docket, Environmental Protection Agency, 
EPA West, Mail Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460. Attention Docket ID No. OAR-2004-0025. Comments may also be 
submitted electronically, by facsimile, or through hand delivery/
courier. Follow the detailed instructions as provided in Unit I.B of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Sharon White, Office of Radiation and 
Indoor Air, (202) 343-9457. Also, visit our Web site at http://www.epa/gov/radiation/wipp or call EPA's toll-free WIPP Information Line, 1-
800-331-WIPP.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information 
?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OAR-2004-0025. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room B102, 1301 Constitution Ave., NW, Washington, DC. 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. These documents are 
also available for review in paper form at the official EPA Air Docket 
in Washington, DC, Docket No. A-98-49, Category II-B4, and at the 
following three EPA WIPP informational docket locations in New Mexico: 
in Carlsbad at the 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.; in 
Albuquerque at the Government Publications Department, Zimmerman 
Library, University of New Mexico, hours: vary by semester; and in 
Santa Fe at the New Mexico State Library, hours: Monday-Friday, 9 a.m.-
5 p.m. 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.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
docket facilities identified in Unit I.B. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and

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without change, unless the comment contains copyrighted material, CBI, 
or other information whose disclosure is restricted by statute. When 
EPA identifies a comment containing copyrighted material, EPA will 
provide a reference to that material in the version of the comment that 
is placed in EPA's electronic public docket. The entire printed 
comment, including the copyrighted material, will be available in the 
public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
Late comments may be considered if time permits.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. 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.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OAR-
2004-0025. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OAR-2004-0025. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    2. By Mail. Send your comments to: EPA Docket Center (EPA/DC), Air 
and Radiation Docket, Environmental Protection Agency, EPA West, Mail 
Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Attention Docket ID No. OAR-2004-0025.
    3. By Hand Delivery or Courier. Deliver your comments to: Air and 
Radiation Docket, EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC, Attention Docket ID No. OAR-
2004-0025. Such deliveries are only accepted during the Docket's normal 
hours of operation as identified in Unit I.A.1.
    4. By Facsimile. Fax your comments to: (202) 566-1741, Attention 
Docket ID. No. OAR-2004-0025.

C. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

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.'' The WIPP is a disposal system for transuranic 
(TRU) radioactive waste. Developed by DOE, the 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. The WIPP has a total capacity of 
6.2 million cubic feet of TRU waste.
    The 1992 WIPP Land Withdrawal Act (LWA; Public Law 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

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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 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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    The 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 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 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, 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, EPA 
determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated 
that the WIPP complied with EPA's radioactive waste disposal 
regulations at subparts B and C of 40 CFR part 191. EPA's certification 
determination permitted the WIPP to begin accepting transuranic 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 the 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 beginning now will include a review of all of 
the changes made at the WIPP facility since the original 1998 EPA 
certification.
    Recertification is not a reconsideration of the decision to open 
WIPP, but a process to reaffirm that the 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 the 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 Compliance Recertification Application (CRA) on 
March 26, 2004. The Agency will review DOE's recertification 
application to ensure that the WIPP will continue to safely contain TRU 
radioactive waste. If EPA approves the application, 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 in 2009.
    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. EPA will evaluate the complete application in determining 
whether the 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 the 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 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. It is EPA's intent that these guidance documents will 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 recertification application is deemed complete, EPA will 
provide DOE with written notification of its completeness determination 
and publish a Federal Register notice

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announcing this determination as well. All correspondence between EPA 
and DOE regarding the completeness of the CRA 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'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.

    Dated: May 19, 2004.
Michael O. Leavitt,
Administrator.
[FR Doc. 04-11765 Filed 5-21-04; 8:45 am]
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