[Federal Register Volume 82, Number 46 (Friday, March 10, 2017)]
[Proposed Rules]
[Pages 13282-13285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04800]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 194

[EPA-HQ-OAR-2014-0609; FRL-9958-69-OAR]


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 completeness of recertification application and 
announcement of end of public comment period.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA 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. The EPA provided written 
notice of the completeness decision to the Secretary of Energy on 
January 13, 2017. The text of the letter is contained in the 
SUPPLEMENTARY INFORMATION.
    The Agency has determined that the application is complete, in 
accordance with EPA regulations. 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 Certification Criteria or the disposal regulations. The EPA 
is now engaged in the full technical review that will determine if the 
WIPP remains in compliance with the disposal regulations. As required 
by the 1992 WIPP Land Withdrawal Act and its implementing regulations, 
the EPA will make a final recertification decision within six months of 
issuing the completeness letter to the Secretary of Energy.

DATES: The EPA opened the public comment period upon receipt of the 
2014 CRA (79 FR 61268, October 10, 2014). Comments must be received on 
or before April 10, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0609, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comment received to its public docket. Do not 
submit electronically any information you consider to be Confidential 
Business Information (CBI) or other information of which disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e. on the Web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ray Lee, 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].

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to the EPA 
through www.regulations.gov or email. 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 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

[[Page 13283]]

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.'' 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 for TRU waste.
    The 1992 WIPP Land Withdrawal Act (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 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 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 California, 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 performs well enough to meet these disposal standards, the EPA 
issued the WIPP Compliance Certification Criteria (40 CFR part 194) in 
1996. The Compliance Certification Criteria interpret and implement the 
disposal standards specifically for the WIPP site. They describe what 
information the DOE must provide and how the Agency evaluates the 
WIPP's performance and provides ongoing independent oversight. The EPA 
implemented its environmental radiation protection standards, 40 CFR 
part 191, by applying the Compliance Certification Criteria to the 
disposal of TRU radioactive waste at the WIPP. For more information 
about 40 CFR part 191, refer to Federal Register documents 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 documents 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 Compliance Certification 
Criteria, the EPA determined on May 18, 1998 (63 FR 27354), that the 
DOE had demonstrated that the WIPP facility will comply with the 
Agency's radioactive waste disposal regulations at subparts B and C of 
40 CFR part 191. The Agency's certification determination permitted the 
WIPP to begin accepting transuranic waste for disposal, provided that 
other applicable conditions and environmental regulations were met. The 
DOE began disposing of TRU waste at the WIPP in March 1999.
    Since the 1998 certification decision (and the 2006 and 2010 
recertification decisions), the EPA has conducted ongoing independent 
technical review and inspections of all WIPP activities related to 
compliance with the Agency's disposal regulations. The initial 
certification decision identified the starting (baseline) conditions 
for the WIPP and established the waste and facility characteristics 
necessary to ensure proper disposal in accordance with the regulations. 
Section 8(f) of the amended WIPP LWA requires the EPA to determine 
every five years if the facility continues to comply with the Agency's 
disposal regulations. In accordance with that same section, this 
determination is not subject to standard rulemaking procedures or 
judicial review. The first recertification process (2004-2006) included 
a review of all of the changes made at the WIPP since the original 1998 
EPA certification decision up until the receipt of the initial CRA in 
March 2004. Subsequently, the second recertification process (2009-
2010) included a review of all the changes made at the WIPP since 2004 
and up to the second CRA in March 2009. This third recertification 
process includes a review of all changes since 2009.
    Recertification is not a reconsideration of the decision to open 
the 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 the 
DOE; any such proposals will be addressed separately by the EPA. 
Recertification will ensure that the WIPP is operated using the most 
accurate and up-to-date information available and provides 
documentation requiring the Department to operate to these standards.
    In a letter dated January 13, 2017, from the EPA's Director of the 
Office of Radiation and Indoor Air to the Secretary of Energy (full 
text of letter provided at the end of this document), the Agency 
notified the Department that the 2014 CRA for the WIPP is complete. 
This determination is solely an administrative measure and does not 
reflect any conclusion regarding the

[[Page 13284]]

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 the DOE with the 
preparation of any compliance application for the WIPP. They are also 
intended to assist in the EPA's review of any application for 
completeness and to enhance the readability and accessibility of the 
application for the Agency and for the public.
    The EPA has been reviewing the 2014 CRA for ``completeness'' since 
its receipt. The Agency's review identified several areas of the 
application where additional information was necessary to perform a 
technical evaluation. The EPA sent a series of letters to the DOE 
requesting additional information, and the Department provided 
documents and analyses in response to these requests. This 
correspondence is summarized in the enclosure sent with the letter to 
the Secretary of Energy, and that letter--along with all other 
completeness-related correspondence--is available in the Agency's 
public dockets (www.regulations.gov; Docket ID: EPA-HQ-OAR-2014-0609). 
Links to the electronic docket and additional information are also 
available at the EPA's WIPP Web site (http://www.epa.gov/radiation/wipp).
    Since receipt of the 2014 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, the EPA held a series of public 
meetings in New Mexico (June 2015) as well as an informal webinar 
(January 2017) to discuss stakeholders' concerns and issues related to 
recertification. The Agency received a number of comments pertinent to 
the 2014 CRA, most notably related to the modeling parameters for 
performance assessment calculations, issues associated with the 
February 2014 radiological incident at the facility, and concerns 
regarding the reported WIPP waste inventory. These comments helped in 
developing the Agency's requests for additional information from the 
DOE.
    The EPA will now undertake a full technical evaluation of the 
complete 2014 CRA to determine whether the WIPP continues to comply 
with the radiation protection standards for disposal. The Agency will 
also consider any additional public comments and other information 
relevant to the WIPP's compliance. The Agency is most interested in 
whether new or changed information has been appropriately incorporated 
into the performance assessment calculations for the WIPP and whether 
the potential long-term effects of changes are properly characterized.
    If the Agency approves the application, it will set the parameters 
for how the WIPP will be operated by the 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 EPA will make a final 
recertification decision within six months of issuing its completeness 
determination.

January 13, 2017
Honorable Dr. Ernest Moniz
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 
Criteria at 40 CFR Sec.  194.11, I hereby notify you that the U.S. 
Environmental Protection Agency (EPA or ``Agency'') has determined that 
the U.S. Department of Energy's (DOE or ``Department'') 2014 Compliance 
Recertification Application (CRA) for the WIPP is complete. This 
completeness determination is an administrative determination required 
under the WIPP Compliance Criteria, which implements the 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 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 the DOE's CRA 
demonstrates compliance with the Compliance Criteria or the Disposal 
Regulations.
    Section 8(f) of the amended Land Withdrawal Act requires the EPA to 
determine every five years if the facility continues to comply with the 
EPA's disposal regulations. This third recertification process includes 
a review of all changes made at the WIPP for the five-year period of 
March 2009 through March 2014.
    Under the applicable regulations, the EPA may recertify the WIPP 
only after the Department has submitted a complete application (see 40 
CFR Sec.  194.11). The DOE submitted the CRA on March 26, 2014. On 
September 29, 2014, the Agency began its official review to determine 
whether the application was complete. Shortly thereafter, the EPA began 
to identify areas of the 2014 CRA that required supplementary 
information and analyses. In addition, the Agency held informal public 
meetings on the CRA in Carlsbad and Albuquerque, NM in June 2015. As a 
result of these meetings, the Agency received public comments and 
identified areas where additional information was needed for the EPA's 
review. A final webinar relating to this completeness evaluation--
accessible online by any interested individuals (and with hosting 
locations in Carlsbad and Albuquerque, NM)--was held on January 12, 
2017.
    The Agency identified completeness concerns in a series of letters 
and correspondence to successive managers and their staff at the DOE's 
Carlsbad Field Office (CBFO) during the completeness review period. 
This correspondence is summarized on the enclosed list.
    All completeness-related correspondence has been placed in the 
public docket related to the 2014 CRA on www.regulations.gov (Docket 
ID#: EPA-HQ-OAR-2014-0609). This information also is available via the 
EPA's WIPP website (https://www.epa.gov/radiation/certification-and-recertification-wipp).
    The Agency has been conducting a preliminary technical review of 
the CRA since its submittal and has provided the DOE with relevant 
technical comments on an ongoing basis. Though the EPA has made a 
determination of completeness, the Agency will continue its technical 
review of the 2014 CRA, and will convey further requests for additional 
information and analyses as needed. The EPA 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.

[[Page 13285]]

    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 [email protected].

Sincerely,
Jonathan D. Edwards,
Director, Office of Radiation and Indoor Air.

    Enclosure: List of EPA Completeness Correspondence and DOE 
Responses for the 2014 CRA


    Dated: January 13, 2017.
Jonathan D. Edwards,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2017-04800 Filed 3-9-17; 8:45 am]
 BILLING CODE 6560-50-P