[Federal Register Volume 84, Number 186 (Wednesday, September 25, 2019)]
[Proposed Rules]
[Pages 50367-50369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20319]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 191 and 194

[EPA-HQ-OAR-2019-0534; FRL-10000-12-OAR]


Review Process To Determine 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, or the Agency) 
intends to evaluate whether 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 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 Agency requests public comment on all 
aspects of the DOE's application.

DATES: The comment period opened on September 25, 2019, and will remain 
open beyond the time when the EPA notifies the DOE that the 
recertification application is complete, which will be specified in a 
future 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: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2019-0534, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2019-0534 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, Air and 
Radiation Docket, EPA Docket Center, Mail Code 28221T, 1200 
Pennsylvania Ave. NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this notice of availability. Comments received may be posted 
without change to https://www.regulations.gov/, including any personal 
information provided. For detailed instructions and additional 
information on submitting comments, see the SUPPLEMENTARY INFORMATION 
section of this document.
    A copy of the DOE's 2019 Compliance Recertification Application 
(CRA) is linked on the EPA's WIPP website (https://www.epa.gov/radiation/certification-and-recertification-wipp#2019).

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

[[Page 50368]]

number: 202-343-2305; email address: [email protected].

SUPPLEMENTARY INFORMATION: The DOE's 2019 CRA was received by the EPA 
on March 19, 2019, and a copy is linked on the EPA's WIPP website in 
ADDRESSES. 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.

I. Public Participation

Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2019-
0534, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. 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 whose 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 https://www.epa.gov/dockets/commenting-epa-dockets.

II. Background

    The 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 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.
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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 
(Pub. L. 104-201).
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    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 help in 
determining whether the WIPP facility meets these disposal standards, 
the Agency issued the 1997 WIPP Compliance Criteria (40 CFR part 194), 
which provides guidance for interpretation and implementation of 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. The Agency implements 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 
documents published in 1985 (50 FR 38066, Sep. 19, 1985) and 1993 (58 
FR 66398, Dec. 20, 1993). For more information about 40 CFR part 194, 
refer to Federal Register documents published in 1996 (61 FR 5224, Feb. 
9, 1996) and 1995 (60 FR 5766, Jan. 30, 1995).
    Using the process outlined in the WIPP Compliance Criteria, the EPA 
determined on May 18, 1998 (63 FR 27354), that the DOE had demonstrated 
that the WIPP complied with the 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 Agency'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

[[Page 50369]]

September 29, 2005, and published its first WIPP recertification 
decision on March 29, 2006 (71 FR 18010).
    The EPA received the DOE'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. The 
Agency deemed the CRA-2014 to be complete on March 10, 2017, and 
published the third WIPP recertification decision on July 10, 2017 (82 
FR 33106).
    The EPA received the Department's fourth CRA on March 19, 2019. 
After the EPA has determined that the application is complete, the 
Agency will review the CRA-2019 to ensure that all of the changes made 
at the WIPP since the third recertification process have been 
accurately reflected and that the facility will continue to safely 
contain TRU radioactive waste. An approved CRA-2019 (along with any 
supplemental completeness information submitted by the DOE) would serve 
as the baseline for the next recertification that will occur starting 
in 2024.
    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. An electronic copy of the application is 
available for review and linked on the EPA's WIPP website (https://www.epa.gov/radiation/certification-and-recertification-wipp#2019). 
Additional background information related to the Agency's 
recertification activities is available in the public dockets and on 
this website. The EPA will evaluate DOE's complete application and make 
a determination whether the WIPP continues to comply with the radiation 
protection standards for disposal. 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 to the 
disposal system have occurred that may potentially impact the WIPP's 
ability to remain in compliance with requirements in the EPA's disposal 
regulations, as well as any areas where the public believes that 
changes have occurred that have not been identified by the DOE.
    The EPA's first step in the recertification process is a 
``completeness'' determination of DOE's application. 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 EPA'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. The focus of each recertification is on any changes to 
the disposal system since the previous recertification decision. The 
EPA may request additional information as necessary from the DOE to 
ensure the completeness of the CRA.
    Once the 2019 recertification application is deemed complete, the 
EPA will provide the DOE with written notification of its completeness 
determination and publish a Federal Register document announcing this 
determination. All correspondence between the EPA and the DOE regarding 
the completeness of the CRA-2019, and any additional information sent 
by the DOE, such as the supplementary results and calculations planned 
for submittal in December 2019, will be placed in the public docket 
(via www.regulations.gov) and linked on the Agency's WIPP website 
(https://www.epa.gov/radiation/certification-and-recertification-wipp#2019).
    The EPA will make a final decision as to whether the WIPP continues 
to meet the disposal regulations after each of the aforementioned steps 
(i.e., technical analysis of the application, issuance of a notice on 
the CRA-2019's completeness in the Federal Register, and analyses of 
public comment) have been completed. As required by the LWA, the Agency 
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 isolation pilot plant, Waste treatment and 
disposal.

    Dated: September 12, 2019.
Jonathan D. Edwards,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2019-20319 Filed 9-24-19; 8:45 am]
 BILLING CODE 6560-50-P