[Federal Register: February 27, 2007 (Volume 72, Number 38)]
[Notices]
[Page 8823-8825]
[DOCID:fr27fe07-151]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55314; File No. SR-NYSE-2007-17]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Provide That There Be No Initial Listing Fee Payable for Any Equity
Security, Structured Product or Closed-End Management Investment
Company That Transfers From Another National Securities Exchange

February 20, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 15, 2007, the New York Stock Exchange LLC (``Exchange'' or
``NYSE'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
The Exchange has designated this proposal as non-controversial under
Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6)
thereunder,\4\ which renders the proposed rule change effective upon
filing with the Commission. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Section 902.02 of its Listed Company
Manual (the ``Manual'') to provide that there shall be no initial
listing fee payable in connection with the transfer of any equity
securities, structured product, or closed-end management investment
company listed on another national securities exchange to the Exchange.
This fee waiver will not be applicable to the transfer of any class of
securities if the issuer's primary class of common stock remains listed
on another national securities exchange.
    The text of the proposed rule change is available on the Exchange's
Web site (http://www.nyse.com), at the Exchange's Office of the

Secretary, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NYSE included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The NYSE has prepared summaries, set forth in Sections
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Section 902.02 of the Manual to
provide

that there shall be no initial listing fee applicable to the transfer
of any equity securities, structured product (defined as securities
listed under Sections 703.18, 703.19 and 703.21) or closed-end
management investment company listed on another national securities
exchange. This fee waiver will not be applicable to the transfer of any
class of securities if the issuer's primary class of common stock
remains listed on another national securities exchange.
    Section 902.03 of the Manual currently provides that issuers
transferring the listing of their primary class of common shares from
any other national securities exchange are not required in connection
with such transfer to pay (i) initial listing fees or (ii) a one-time
special charge of $37,500 payable in connection with the listing of any
new class of common shares. In addition, Section 902.03 provides that
issuers transferring the listing of their primary class of common
shares from NYSE Arca to the Exchange are not required to pay Annual
Fees with respect to that primary class of common shares for the
remainder of the calendar year in which the transfer occurs. The
proposed rule change will move this text from Section 902.03 to Section
902.02 and extend the application of waivers of the initial listing fee
and one-time special charge to any other classes of equity securities
(i.e., preferred stock, warrants, units including equity securities,
and additional classes of common stock) transferred from another
national securities exchange, as well as to transfers of closed-end
management investment companies and structured products.
    Issuers of securities that qualify for the proposed waiver of
initial listing fees will be subject to the same level of annual fees
and listing of additional shares fees as other NYSE issuers. The
proposed rule change will not affect the Exchange's commitment of
resources to its regulatory oversight of the listing process or its
regulatory programs. Specifically, companies that benefit from the
waiver will be reviewed for compliance with Exchange listing standards
in the same manner as any other company that applies to be listed on
the Exchange. The Exchange will conduct a full and independent review
of each issuer's compliance with the Exchange's listing standards.
    The Exchange believes that the elimination of such fees in the case
of securities transferring from other national securities exchanges is
justified on several grounds. An issuer that already paid initial
listing fees to another national securities exchange when it became a
publicly traded company is reluctant to pay a second initial listing
fee to another listing venue, even if it concludes that the Exchange
offers the issuer and its investors superior services and market
quality. Even if an issuer concludes that the Exchange would provide a
superior market for its stock, the benefits of the transfer must
currently be weighed against the cost of initial inclusion. Since the
expected benefits of the transfer would be diffused among the issuers'
investors and realized over time, but the initial listing fees must be
paid by the issuer immediately, the Exchange is concerned that issuers
that stand to benefit may nevertheless opt to forgo a transfer. As
such, the Exchange believes that assessing the initial fees against
issuers that have already paid fees to list on another market imposes a
burden on the competition between exchange markets and markets other
than exchange markets, a competition that the Exchange believes is one
of the central goals of the national market system. This concern is
particularly great in light of the fact that the Commission has
approved the waiver of initial listing fees by Nasdaq with respect to
the listing of any security being transferred from another national
securities exchange.\5\
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    \5\ See Securities Exchange Act Release No. 51004 (January 10,
1005), 70 FR 2917 (January 18, 2005) (order approving SR-NASD-2004-
140).
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    The Exchange understands that the effect of this proposed rule
change will be to impose a lower level of listing fees on issuers that
transfer from another national securities exchange than on some other
issuers. In light of the fact that the Exchange will collect the same
level of annual fees and listing of additional shares fees from such
issuers, however, the Exchange believes that the difference does not
constitute an inequitable allocation of fees. In light of a
transferring issuer's prior payment to another market and the generally
lower burdens associated with reviewing a transferring issuer's
eligibility, the Exchange believes that eliminating initial fees for
transferring issuers is entirely consistent with an equitable
allocation of listing fees.
    The Exchange does not expect the financial impact of this proposed
rule change to be material, either in terms of increased levels of
annual fees from transferring issuers or in terms of diminished initial
listing fee revenues. Quite simply, even with the proposed rule change
in place, the Exchange understands that a change in listing venue is a
major step for an issuer, and therefore the Exchange does not expect
that the number of issuers that transfer to the NYSE in a given time
frame will be sufficient to have a material effect on financial
resources.
2. Statutory Basis
    The bases under the Act for this proposed rule change are: (i) The
requirement under Section 6(b)(4) \6\ that an exchange have rules that
provide for the equitable allocation of reasonable dues, fees and other
charges among its members and other persons using its facilities, and
(ii) the requirement under Section 6(b)(5) \7\ of the Act that an
exchange have rules that are designed to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and are not designed to permit unfair discrimination between
issuers. In light of a transferring issuer's prior payment to another
market, the Exchange believes that the proposed fee waiver does not
render the allocation of its listing fees inequitable or unfairly
discriminatory. The Exchange believes that the fee waiver will increase
competition among listing markets and will remove a competitive
disadvantage the Exchange currently has vis-[agrave]-vis Nasdaq, and is
therefore designed to perfect the mechanism of a free and open market.
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    \6\ 15 U.S.C. 78f(b)(4).
    \7\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \8\ and subparagraph (f)(6) of Rule 19b-4
thereunder.\9\ Because the Exchange has designated the foregoing
proposed rule change as one that: (i) does not significantly affect the
protection of investors or the public interest; (ii) does not impose
any significant burden on competition; and (iii) does not become
operative for 30 days from the date on

which it was filed, or such shorter time as the Commission may
designate, if consistent with the protection of investors and the
public interest, the proposed rule change has become effective pursuant
to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6)(iii)
thereunder.\10\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6).
    \10\ The Exchange provided written notice to the Commission of
its intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to filing, as required by Rule 19b-4(f)(6)(iii).
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    The Exchange requests that the Commission waive the 30-day
operative delay specified in Rule 19b-4(f)(6)(iii).\11\ The Exchange
believes that the proposed amendment does not affect investors as it
simply waives a fee that is applicable to companies listing on the
Exchange. Moreover, Nasdaq has already instituted such a waiver and the
Exchange is at a competitive disadvantage as long as Nasdaq can list
transferring companies without the payment of original listing fees and
the Exchange cannot. Therefore, the Exchange believes that waiving the
30-day operative delay is consistent with the protection of investors
and the public interest.
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    \11\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission has determined to waive the 30-day delay and allow
the proposed rule change to become operative immediately.\12\ The
Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest.
The proposed rule is substantially similar to provisions in Nasdaq's
Rules 4510(a) and 4520(a), which were previously approved by the
Commission.\13\
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    \12\ For purposes only of waiving the operative delay of this
proposal, the Commission notes that it has considered the proposed
rule's impact on efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
    \13\ See supra note 5.
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File No. SR-NYSE-2007-17 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-NYSE-2007-17. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSE-2007-17 and should be submitted on or before March
20, 2007.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-3287 Filed 2-26-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: November 18, 2010 (Volume 75, Number 222)]
[Rules and Regulations]
[Page 70584-70595]
[DOCID:fr18no10-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 194

[EPA-HQ-OAR-2009-0330; FRL-9227-4]

Criteria for the Certification and Recertification of the Waste
Isolation Pilot Plant's Compliance With the Disposal Regulations:
Recertification Decision

AGENCY: Environmental Protection Agency.

ACTION: Recertification decision.

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SUMMARY: With this document, the Environmental Protection Agency (EPA)
recertifies that the U.S. Department of Energy's (DOE) Waste Isolation
Pilot Plant (WIPP) continues to comply with the ``Environmental
Standards for the Management and Disposal of Spent Nuclear Fuel, High-
Level and Transuranic (TRU) Radioactive Waste.'' 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.

DATES: Effective November 18, 2010.

FOR FURTHER INFORMATION CONTACT: Ray Lee or Jonathan Walsh, Radiation
Protection Division, Mail Code 6608J, U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue, Washington, DC 20460; telephone
number:<PHONE_NUMBER> or<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>or<EMAIL_ADDRESS>Copies of the
Compliance Application Review Documents (CARDs) supporting today's
action and all other recertification-related documentation can be found
in the Agency's electronic docket found at http://www.regulations.gov
(FDMS Docket ID No. EPA-HQ-OAR-2009-0330) or on its WIPP Web site
(http://www.epa.gov/radiation/wipp).

SUPPLEMENTARY INFORMATION: EPA initially certified that WIPP met
applicable regulatory requirements on May 18, 1998 (63 FR 27354), 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 (71 FR 18010-18021).
    This action represents the Agency's second periodic evaluation of
WIPP's continued compliance with the disposal regulations and WIPP
Compliance Criteria. The compliance criteria implement and interpret
the disposal regulations specifically for WIPP. As directed by Congress
in the WIPP Land Withdrawal Act (LWA), this ``recertification'' process
will occur five years after the WIPP's initial receipt of TRU waste
(March 26, 1999), and every five years thereafter (e.g., March 2004,
March 2009) until the end of the decommissioning phase. For each
recertification--including the one being announced with today's
action--DOE must submit documentation of the site's continuing
compliance with the disposal regulations to EPA for review. In
accordance with the WIPP Compliance Criteria, documentation of
continued compliance was made available in EPA's dockets, and the
public was provided at least a 30-day period in which to submit
comments. In addition, all recertification decisions must be announced
in the Federal Register. According to the WIPP LWA, Section 8(f), these
periodic recertification determinations are not subject to rulemaking
or judicial review.
    This action is not a reconsideration of the decision to open WIPP.
Rather, recertification is a process that evaluates changes at WIPP to
determine if the facility continues to meet all the requirements of
EPA's disposal regulations. The recertification process ensures that
WIPP's continued compliance is demonstrated using the most accurate,
up-to-date information available.
    This recertification decision is based on a thorough review of
information submitted by DOE, independent technical analyses, and
public comments. The Agency has determined that DOE continues to meet
all applicable requirements of the WIPP Compliance Criteria, and with
this notice, recertifies the WIPP facility. This recertification
decision does not otherwise amend or affect EPA's radioactive waste
disposal regulations or the WIPP Compliance Criteria.

Table of Contents

I. General Information
II. What is WIPP?
    A. 1998 Certification Decision
    B. 2006 Recertification Decision
III. With which regulations must WIPP comply?
    A. Radioactive Waste Disposal Regulations & Compliance Criteria
    B. Compliance With Other Environmental Laws and Regulations
IV. What has EPA's role been at WIPP since the 1998 certification
decision?
    A. Continuing Compliance
    B. Annual Change Reports

    C. Monitoring the Conditions of Compliance
    D. Inspections and Technical Exchanges
V. What is EPA's 2010 recertification decision?
    A. What information did the Agency examine to make its final
decision?
    B. Content of the Compliance Recertification Application
(Sec. Sec.  194.14 and 194.15)
    C. Performance Assessment: Modeling and Containment Requirements
(Sec. Sec.  194.14, 194.15, 194.23, 194.31 through 194.34)
    D. General Requirements
    E. Assurance Requirements (Sec. Sec.  194.41 Through 194.46)
    F. Individual and Groundwater Protection Requirements
(Sec. Sec.  194.51 Through 194.55)
VI. How has the public been involved in EPA's WIPP recertification
activities?
    A. Public Information
    B. Stakeholder Meetings
    C. Public Comments on Recertification
VII. Where can I get more information about EPA's WIPP-related
activities?
    A. Supporting Documents for Recertification
    B. WIPP Web Site & WIPP-NEWS E-mail Listserv
    C. Dockets
VIII. What happens next for WIPP? What is EPA's role in future WIPP
activities?

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2009-0330. Publicly available docket materials
are available either electronically at http://www.regulations.gov or in
hard copy 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<PHONE_NUMBER>, and the
telephone number for the Air and Radiation Docket is<PHONE_NUMBER>. 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/.

II. What is WIPP?

    The Waste Isolation Pilot Plant (WIPP) is a disposal system for
defense-related transuranic (TRU) radioactive waste. Developed by the
Department of Energy (DOE), WIPP is located near Carlsbad in
southeastern New Mexico. At WIPP, radioactive waste is disposed of
2,150 feet underground in an ancient salt layer which will eventually
creep and encapsulate the waste. WIPP has a total capacity of 6.2
million cubic feet of waste.
    Congress authorized the development and construction of WIPP in
1980 ``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.'' \1\ The waste which may be emplaced in the WIPP is limited to
TRU radioactive waste generated by defense activities associated with
nuclear weapons; no high-level waste or spent nuclear fuel from
commercial power plants may be disposed of at the WIPP. TRU waste is
defined as materials containing alpha-emitting radioisotopes, with half
lives greater than twenty years and atomic numbers above 92, in
concentrations greater than 100 nano-curies per gram of waste.\2\
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    \1\ Department of Energy National Security and Military
Applications of Nuclear Energy Authorization Act of 1980, Public Law
96-164, section 213.
    \2\ WIPP Land Withdrawal Act, Public Law 102-579, section 2(18),
as amended by the 1996 WIPP LWA Amendments, Public Law 104-201.
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    Most TRU waste proposed for disposal at the WIPP consists of items
that have become contaminated as a result of activities associated with
the production of nuclear weapons (or with the clean-up of weapons
production facilities), e.g., rags, equipment, tools, protective gear,
and organic or inorganic sludges. Some TRU waste is mixed with
hazardous chemicals. Some of the waste proposed for disposal at the
WIPP is currently located at Federal facilities across the United
States, including locations in California, Idaho, Illinois, New Mexico,
Nevada, Ohio, South Carolina, Tennessee, and Washington.
    The WIPP LWA, passed initially by Congress in 1992 and amended in
1996, is the statute that provides EPA the authority to oversee and
regulate the WIPP. (Prior to the passage of the WIPP LWA in 1992, DOE
was self-regulating with respect to WIPP; that is, DOE was responsible
for determining whether its own facility complied with applicable
regulations for radioactive waste disposal.) The WIPP LWA delegated to
EPA three main tasks, to be completed sequentially, for reaching an
initial compliance certification decision. First, EPA was required to
finalize general regulations which apply to all sites--except Yucca
Mountain--for the disposal of highly radioactive waste.\3\ These
disposal regulations, located at subparts B and C of 40 CFR part 191,
were published in the Federal Register in 1985 and 1993.\4\
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    \3\ WIPP LWA, section 8(b).
    \4\ 50 FR 38066-38089 (September 19, 1985) and 58 FR 66398-66416
(December 20, 1993).
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    Second, EPA was to develop criteria, by rulemaking, to implement
and interpret the general radioactive waste disposal regulations
specifically for the WIPP. In 1996, the Agency issued the WIPP
Compliance Criteria, which are found at 40 CFR part 194.\5\
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    \5\ 61 FR 5224-5245 (February 9, 1996).
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    Third, EPA was to review the information submitted by DOE and
publish a certification decision.\6\ The Agency issued its
certification decision on May 18, 1998, as required by Section 8 of the
WIPP LWA (63 FR 27354-27406).
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    \6\ WIPP LWA, section 8(d).
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A. 1998 Certification Decision

    The WIPP LWA, as amended, required EPA to evaluate whether the WIPP
site complied with EPA's standards for the disposal of radioactive
waste. On May 18, 1998 (63 FR 27354-27406), EPA determined that the
WIPP met the standards for radioactive waste disposal. This decision
allowed the emplacement of radioactive waste in the WIPP to begin,
provided that all other applicable health and safety standards, and
other legal requirements, had been met. The first shipment of TRU waste
was received at WIPP on March 26, 1999.
    Although EPA determined that DOE met all of the applicable
requirements of the WIPP Compliance Criteria in its original
certification decision (63 FR 27354-27406; May 18, 1998), EPA also
found that it was necessary for DOE to take additional steps to ensure
that the measures actually implemented at the WIPP (and thus the
circumstances expected to exist there) were consistent with DOE's
Compliance Certification Application (CCA) and with the basis for EPA's
compliance certification. To address these situations, EPA amended the
WIPP Compliance Criteria, 40 CFR part 194, and appended four explicit
conditions to its certification of compliance for the WIPP.
    Condition 1 of the certification applies to the panel closure
system, which is intended, over the long-term, to block brine flow
between waste panels in WIPP. In the CCA, DOE presented four options
for the design of the panel closure system, but did not specify which
one would be constructed at the WIPP facility. The Agency based

its certification decision on DOE's use of the most robust design
(referred to in the CCA as ``Option D''). Condition 1 of EPA's
certification required DOE to implement the Option D panel closure
system at WIPP, with Salado mass concrete replacing fresh water
concrete.
    Conditions 2 and 3 of the final certification decision apply to
activities conducted at waste generator sites that produce TRU waste
proposed for disposal at WIPP. The WIPP Compliance Criteria (Sec. Sec.
194.22 and 194.24) require DOE to have, in place, a system of controls
to measure and track important waste components, and to apply quality
assurance (QA) programs to waste characterization activities. These two
Conditions state that EPA must separately approve the QA programs for
other generator sites (Condition 2) and the waste characterization
system of controls for other waste streams (Condition 3). The approval
process includes an opportunity for public comment, and an inspection
or audit of the waste generator site by EPA. The Agency's approvals of
waste characterization systems of controls and QA programs are conveyed
by letter from EPA to DOE. EPA also made changes to the compliance
criteria in July 2004 (69 FR 42571-42583). These new provisions provide
equivalent or improved oversight and better prioritization of technical
issues in EPA inspections to evaluate waste characterization activities
at DOE WIPP waste generator sites. The new provisions also offer more
direct public input into EPA's decisions about what waste can be
disposed of at WIPP. The Agency continues to conduct independent
inspections to evaluate a site's waste characterization capabilities,
consistent with Conditions 2 and 3.
    Condition 4 of the certification applies to passive institutional
controls (PICs). The WIPP Compliance Criteria require DOE to use both
records and physical markers to warn future societies about the
location and contents of the disposal system, and thus to deter
inadvertent intrusion into the WIPP (Sec.  194.43). In the CCA, EPA
allowed DOE to delay submission of a final PICs design. Condition 4 of
the certification requires DOE, prior to the submission of the final
recertification application, to submit a revised schedule showing that
markers and other measures will be implemented as soon as possible
after closure of the WIPP. The Department also must provide additional
documentation showing that it is feasible to construct markers and
place records in archives as described in the CCA. After WIPP's
closure, DOE will not be precluded from implementing additional PICs
beyond those described in the application. DOE recently requested a
delay for all PICs activities until approximately ten years prior to
the decommissioning of the WIPP facility (which is currently
anticipated in 2033). EPA approved the delay (March 7, 2008; Air Docket
A-98-49, Item II-B2-67), with the condition that it was based on
current projections and activities and also revised the schedule that
was proposed originally in November 2002 (Air Docket A-98-49, Item II-
B3-41). This schedule not only gave DOE more time to seek out the most
viable PICs options, but also ensured that testing and research is in
fact being done and reported to EPA on a regular basis.
    The complete record and basis for EPA's 1998 certification decision
can be found in Air Docket A-93-02.

B. 2006 Recertification Decision

    After the 1998 certification decision, EPA continued to conduct
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 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.
    The first recertification process, which occurred in 2004-2006,
included a review of all of the changes made at the WIPP facility since
the original 1998 EPA certification decision to the submittal of the
initial CRA. The Agency received DOE's first CRA on March 26, 2004. On
May 24, 2004, EPA announced the availability of the CRA-2004 and EPA's
intent to evaluate compliance with the disposal regulations and
compliance criteria in the Federal Register (69 FR 29646-29649). At
that time, EPA also began accepting public comments on the application.
Following over a year of requests for additional information from DOE,
EPA issued its completeness determination for the CRA-2004 on September
29, 2005 (70 FR 61107-61111). ``Completeness determinations'' are
solely administrative steps and do not reflect any conclusion regarding
WIPP's continued compliance with the disposal regulations.
    All completeness determinations are 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.
    Following the September 2005 completeness determination, EPA began
its in-depth technical review on the CRA-2004 using the entire record
available to the Agency, which is located in EPA's official Dockets
(FMDS Docket ID No. EPA-HQ-OAR-2004-0025 found at
http:www.regulations.gov, and also Air Docket A-98-49). Much of the
CRA-2004 documentation was also placed on the Agency's WIPP Web site
(http://www.epa.gov/radiation/wipp/2004application.html and http://
www.epa.gov/radiation/wipp/2006recertfication.html).
    EPA's technical review evaluated compliance of the CRA-2004 with
each section of the WIPP Compliance Criteria. The Agency focused its
review on areas of change relative to the original certification
decision as identified by DOE, in order to ensure that the effects of
the changes have been addressed. EPA also made sure to address any
substantial public comments received on the application (e.g., karst,
waste inventory) in its Compliance Application Review Documents (CARDs)
and Technical Support Documents (TSDs). On March 29, 2006, EPA
officially recertified the WIPP facility for the first time, exactly
six months following the September 2005 completeness determination.

III. With which regulations must WIPP comply?

A. Radioactive Waste Disposal Regulations & Compliance Criteria

    WIPP must comply with EPA's radioactive waste disposal regulations,
located at subparts B and C of 40 CFR part 191. These regulations limit
the amount of radioactive material which may escape from a disposal
facility, and protect individuals and ground water resources from
dangerous levels of radioactive contamination. In addition, the
Compliance Recertification Application (CRA) and other information
submitted by DOE must meet the requirements of the WIPP Compliance
Criteria at 40 CFR part 194. The WIPP Compliance Criteria implement and
interpret the general disposal regulations specifically for WIPP, and
clarify the basis on which EPA's certification decision is made.

B. Compliance With Other Environmental Laws and Regulations

    The WIPP must also comply with a number of other environmental and
safety regulations in addition to EPA's disposal regulations \7\--
including, for example, the Solid Waste Disposal Act and EPA's
environmental standards for the management and storage of radioactive
waste. Various regulatory agencies are responsible for overseeing the
enforcement of these Federal laws. For example, enforcement of some
parts of the hazardous waste management regulations has been delegated
to the State of New Mexico. The State is authorized by EPA to carry out
the State's Resource Conservation and Recovery Act (RCRA) programs in
lieu of the equivalent Federal programs. New Mexico's Environment
Department (NMED) reviews DOE's permit applications for treatment,
storage, and disposal facilities for hazardous waste, under Subtitle C
of RCRA. The State's authority for such actions as issuing a hazardous
waste operating permit for the WIPP is in no way affected by EPA's
recertification decision. It is the responsibility of the Secretary of
Energy to report the WIPP's compliance with all applicable Federal laws
pertaining to public health and the environment to EPA and the State of
New Mexico.\8\ Compliance with environmental or public health
regulations other than EPA's disposal regulations and WIPP Compliance
Criteria is not addressed by today's action.
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    \7\ Compliance with these regulations is addressed in the site's
Biennial Environmental Compliance Report (BECR).
    \8\ WIPP LWA, sections 7(b)(3) and 9.
---------------------------------------------------------------------------

IV. What has EPA's role been at WIPP since the 1998 certification
decision and 2006 recertification decision?

A. Continuing Compliance

    Since EPA's 1998 certification decision (and through the initial
2006 recertification decision), the Agency has been monitoring and
evaluating changes to the activities and conditions at WIPP. EPA
monitors and ensures continuing compliance with EPA regulations through
a variety of activities, including: Review and evaluation of DOE's
annual change reports, monitoring of the conditions of compliance,
inspections of the WIPP site, and inspections of waste characterization
operations.
    At any time, DOE must report any planned or unplanned changes in
activities pertaining to the disposal system that differ significantly
from the most recent compliance application (Sec.  194.4(b)(3)). The
Department must also report any releases of radioactive material from
the disposal system (Sec.  194.4(b)(3)(iii), (v)). Finally, EPA may
request additional information from DOE at any time (Sec.
194.4(b)(2)). This information allows EPA to monitor the performance of
the disposal system and evaluate whether the certification must be
modified, suspended, or revoked to prevent or quickly reverse any
potential danger to public health and the environment.

B. Annual Change Reports

    Under Sec.  194.4(b) DOE was required to submit a report of any
changes to the conditions and activities at WIPP within six months of
the 1998 certification decision and annually thereafter. DOE met this
requirement by submitting the first change report in November 1998 and
annually thereafter.
    Since 1998, DOE's annual change reports have reflected the progress
of quality assurance and waste characterization inspections, minor
changes to DOE documents, information on monitoring activities, and any
additional EPA approvals for changes in activities and conditions. All
correspondence and approvals regarding the annual change reports can be
found in Air Docket A-98-49, Categories II-B2 and II-B3.

C. Monitoring the Conditions of Compliance

    As discussed previously, Condition 1 of the WIPP certification
requires DOE to implement the Option D panel closure system at WIPP,
with Salado mass concrete used in place of fresh water concrete. Since
the 1998 certification decision, DOE has indicated that it would like
to change the design of the Option D panel closure system selected by
EPA (Air Docket A-98-49, Item II-B3-19). EPA chose to defer review of a
new panel closure design until after issuing the first recertification
decision (Air Docket A-98-49, Item II-B3-42). In November 2002, DOE
requested permission to install only the explosion isolation portion of
the Option D panel closure design until EPA and NMED can render their
respective final decisions on DOE's request to approve a new design for
the WIPP panel closure system. In December 2002, EPA approved DOE's
request to install only the explosion wall and to extend the panel
closure schedule until a new design is approved (Air Docket A-98-49,
Item II-B3-44). In a January 11, 2007 letter (DOE 2007b), DOE requested
panel closures be delayed until a new design could be approved. EPA
approved this request in a February 22, 2007 letter (EPA 2007a), and
expects DOE to re-submit a new panel closure design after the CRA-2009
recertification decision. Since 1998, the Agency has conducted numerous
audits and inspections at waste generator sites in order to implement
Conditions 2 and 3 of the compliance certification. Notices announcing
EPA inspections or audits to evaluate implementation of QA and waste
characterization (WC) requirements at waste generator facilities were
published in the Federal Register and also periodically announced on
the Agency's WIPP Web site (http://www.epa.gov/radiation/wipp) and
WIPP-NEWS e-mail listserv. The public has had the opportunity to submit
written comments on waste characterization activities and QA program
plans submitted by DOE in the past, and based on the revised WIPP
Compliance Criteria, are now able to submit comments on EPA's proposed
waste characterization approvals (See 69 FR 42571-42583). As noted
above, EPA's decisions on whether to approve waste generator QA program
plans and waste characterization systems of controls--and thus, to
allow shipment of specific waste streams for disposal at WIPP--are
conveyed by a letter from EPA to DOE. The procedures for EPA's approval
are incorporated in the amended WIPP Compliance Criteria in Sec.
194.8.
    Since 1998, EPA has audited and approved the QA programs at
Carlsbad Field Office (CBFO), Washington TRU Solutions (WTS), Sandia
National Laboratory (SNL), and at 11 other DOE organizations. Following
the initial approval of a QA program, EPA conducts follow-up audits to
ensure

continued compliance with EPA's QA requirements. EPA's main focus for
QA programs has been the demonstration of operational independence,
qualification, and authority of the QA program at each location.
    EPA has approved waste characterization (WC) activities at multiple
waste generator sites since 1998, including Idaho National Laboratory,
Hanford, Rocky Flats Environmental Technology Site, Savannah River
Site, Nevada Test Site, Argonne National Laboratory-East, and General
Electric Vallecitos Nuclear Center. In the interim since the 2004 CRA,
remote-handled waste streams were approved for shipment and emplaced at
WIPP for the first time. EPA inspects waste generator sites to ensure
that waste is being characterized and tracked according to EPA
requirements. EPA's WC inspections focus on the personnel, procedures
and equipment involved in WC. A record of EPA's WC and QA
correspondences and approvals can be found in Air Docket A-98-49,
Categories II-A1 and II-A4.
    EPA will evaluate DOE's compliance with Condition 4 of the
certification when DOE submits a revised schedule and additional
documentation regarding the implementation of PICs. This documentation
must be provided to EPA no later than the final recertification
application. Once received, the information will be placed in EPA's
public dockets, and the Agency will evaluate the adequacy of the
documentation. During the operational period when waste is being
emplaced in WIPP (and before the site has been sealed and
decommissioned), EPA will verify that specific actions identified by
DOE in the CCA, CRA, and supplementary information (and in any
additional documentation submitted in accordance with Condition 4) are
being taken to test and implement passive institutional controls.

D. Inspections

    The WIPP Compliance Criteria provide EPA the authority to conduct
inspections of activities at the WIPP and at all off-site facilities
which provide information included in certification applications (Sec.
194.21). Since 1998, the Agency has conducted periodic inspections to
verify the adequacy of information relevant to certification
applications. EPA has conducted annual inspections at the WIPP site to
review and ensure that the monitoring program meets the requirements of
Sec.  194.42. EPA has also inspected the emplacement and tracking of
waste in the repository. The Agency's inspection reports can be found
in Air Docket A-98-49, Categories II-A1 and II-A4.

V. What is EPA's 2010 recertification decision?

    EPA recertifies that DOE's WIPP continues to comply with the
requirements of subparts B and C of 40 CFR part 191. The following
information describes EPA's determination of compliance with each of
the WIPP Compliance Criteria specified by 40 CFR part 194.
    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.

A. What information did the Agency examine to make its final decision?

    40 CFR part 194 sets out those elements which the Agency requires
to be in any complete compliance application. In general, compliance
applications must include information relevant to demonstrating
compliance with each of the individual sections of 40 CFR part 194 to
determine if the WIPP will comply with the Agency's radioactive waste
disposal regulations at 40 CFR part 191, subparts B and C. The Agency
published the ``Compliance Application Guidance for the Waste Isolation
Pilot Plant: A Companion Guide to 40 CFR Part 194'' (CAG) which
provided detailed guidance on the submission of a complete compliance
application (EPA Pub. No. 402-R-95-014, Air Docket A-93-02, Item II-B2-
29).\10\
---------------------------------------------------------------------------

    \10\ Section 194.11 provides that EPA's certification evaluation
would not begin until EPA notified DOE of its receipt of a
``complete'' compliance application. This ensures that the full six-
month period for EPA's review, as provided by the WIPP LWA, shall be
devoted to substantive, meaningful review of the application (61 FR
5226).
---------------------------------------------------------------------------

    To make its decision, EPA evaluated basic information about the
WIPP site and disposal system design, as well as information which
addressed all the provisions of the compliance criteria. As required by
Sec.  194.15(a), DOE's CRA-2009 updated the previous compliance
application (CRA-2004) with sufficient information for the Agency to
determine whether or not WIPP continues to be in compliance with the
disposal regulations.
    As mentioned previously, the first step in recertification is
termed the ``completeness determination.'' ``Completeness'' is a key
administrative step that EPA uses to determine that any recertification
application addresses all the required regulatory elements and provides
sufficient information for EPA to conduct a full, technical review.
Following receipt of DOE's second CRA on March 24, 2009, EPA began to
identify areas of the application where additional information was
needed. A June 16, 2009 Federal Register notice announced availability
of the CRA-2009 and opened the official public comment period. Over the
course of the following 12 months, the Agency submitted five official
letters (May 21, 2009; July 16, 2009; October 19, 2009; January 25,
2010; and February 22, 2010) to DOE requesting additional information
regarding the CRA. The Department responded with a series of ten
letters (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; and June 24, 2010) submitting all of the
requested supplemental information to EPA. On June 29, 2010, EPA
announced that DOE's recertification application was complete (75 FR
41421-41424).
    EPA also relied on materials prepared by the Agency or submitted by
DOE in response to EPA requests for specific additional information
necessary to address technical sufficiency concerns. For example, EPA
directed DOE to conduct a revised performance assessment--referred to
as the performance assessment baseline calculation (PABC)--to address
technical issues. Though recertification is not an official rulemaking,
the Agency also considered public comments related to recertification,
concerning both completeness and technical issues.
    In summary, EPA's recertification decision is based on the entire
record available to the Agency, which is located in its official
dockets (FMDS Docket ID No. EPA-HQ-OAR-2009-0330, and Air Docket A-98-
49). The record consists of the complete CRA, supplementary information
submitted by DOE in response to EPA requests for additional
information, technical reports generated by EPA, EPA audit and
inspection reports, and public comments submitted on EPA's proposed
recertification decision during the public comment period. All
pertinent CRA-2009 correspondence was placed in our dockets (FDMS
Docket No. OAR-2009-0330) and on our WIPP Web site (http://www.epa.gov/
radiation/wipp/2009application.html).
    EPA's technical review evaluated compliance of the CRA with each
section of the WIPP Compliance Criteria. The Agency focused its review

on areas of change relative to the initial recertification decision as
identified by DOE, in order to ensure that the effects of the changes
have been addressed. As with its original recertification decision,
EPA's evaluation of DOE's demonstration of continuing compliance with
the disposal regulations is based on the principle of reasonable
expectation. 40 CFR 191.13(b) states, ``proof of the future performance
of a disposal system is not to be had in the ordinary sense of the word
in situations that deal with much shorter time frames. Instead, what is
required is a reasonable expectation, on the basis of the record before
the implementing agency, that compliance with Sec.  191.13(a) will be
achieved.'' As discussed in 40 CFR part 191, and applied to the 1998
certification decision and 2006 recertification decision, reasonable
expectation is used because of the long time period involved and the
nature of the events and processes at radioactive waste disposal
facilities. There are inevitable and substantial uncertainties in
projecting disposal system performance over long time periods. EPA
applies reasonable expectation to the evaluation of both quantitative
(i.e., performance assessment) and qualitative (i.e., assurance
requirements) aspects of any compliance application.
    The Agency produced a suite of documents during its technical
review. EPA's Compliance Application Review Documents (CARDs)
correspond in number to the sections of 40 CFR part 194 that they
respectively address. Each CARD enumerates all changes made by DOE
impacting a particular section of the rule, and EPA's process and
conclusions. CARDs are found at Docket A-98-49, Category V-B. Technical
Support Documents (TSDs) were prepared to address specific topics in
greater detail, and are found in Docket A-98-49, Category II-B1.
Together, the CARDs and TSDs thoroughly document EPA's review of DOE's
compliance recertification application and the technical rationale for
the Agency's decisions.

B. Content of the Compliance Recertification Application (Sec. Sec.
194.14 and 194.15)

    According to Sec.  194.14, any compliance application must include,
at a minimum, basic information about the WIPP site and disposal system
design. This section focuses on the geology, hydrology, hydrogeology,
and geochemistry of the WIPP disposal system. A compliance application
must also include information on WIPP materials of construction,
standards applied to design and construction, background radiation in
air, soil, and water, as well as past and current climatological and
meteorological conditions. Section 194.15 states that recertification
applications shall update this information to provide sufficient
information for EPA to determine whether or not WIPP continues to be in
compliance with the disposal regulations.
    In Section 15 of the 2009 CRA, DOE identified changes to the
disposal system between the 2004 CRA and 2009 CRA, including changes
that were approved by EPA and changes to technical information relevant
to Sec. Sec.  194.14 and 194.15. Noteworthy changes discussed in the
2009 CRA include enhanced monitoring leading to an updated
understanding of Culebra transmissivity and new transmissivity field
calculations. Although EPA considers these updates important to the
current understanding of the disposal system, EPA determined that the
changes, both individually and collectively, do not have a significant
impact on the performance of the disposal system. Today's notice
summarizes the most important of these changes.
    Culebra Dolomite: The Culebra Dolomite is considered the primary
pathway for long-term radionuclide transport in ground water. As part
of the required monitoring program, DOE monitors water levels in the
Culebra. At the time of the 2004 CRA, observed fluctuations and a
general increase in the water levels of Culebra monitoring wells was
poorly understood and attributed to human influences, such as potash
mining and petroleum production. These water levels establish the
hydraulic gradient across the site, which in turn influences
radionuclide travel times for the purposes of performance assessment.
DOE uses the Culebra hydrologic data in combination with geologic
information and modeling software to develop transmissivity fields for
performance assessment (PA) modeling. The approach DOE used in the 2004
CRA was considered adequate by EPA, but lacked strong prediction power
for transmissivity at specific points. [See EPA 2004 Performance
Assessment Baseline Calculation (PABC) Technical Support Document (TSD)
(Air Docket A-98-49, Item II-B1-16).]
    Since the 2004 CRA, DOE conducted a Culebra well optimization
program to determine where new water monitoring wells were needed most
and which old wells could be plugged and abandoned. Additionally, DOE
added well instrumentation that produces virtually continuous data,
offering a more complete record of the changes in water pressure than
manual monthly measurements previously provided. The new monitoring
data allowed DOE to develop transmissivity fields that are geologically
based, consistent with observed groundwater heads, consistent with
groundwater responses in Culebra pump tests, and consistent with water
chemistry. Furthermore, Culebra water-level changes previously
considered unpredictable and anthropogenic in origin can now be
demonstrated to be responses to rainfall in Nash Draw, while others can
be conclusively linked to well drilling activities. This understanding
facilitated the development of the revised Culebra Hydrology Conceptual
Model, which was peer reviewed in 2008. A detailed discussion of these
changes is found in 2009 CRA CARD 15. In conclusion, EPA finds that DOE
has adequately characterized and assessed the site characteristics for
the purposes of the PA and has demonstrated continued compliance with
Sec. Sec.  194.14 and 194.15.
    In addition to technical changes identified by DOE and EPA, the
Agency received comments regarding the geology surrounding the WIPP
site. As during the 2004 CRA, some stakeholders commented that karst
features are prevalent in the vicinity of WIPP. Karst is a type of
topography in which there are numerous sinkholes and large voids, such
as caves. Karst is caused when rainwater reacts with carbon dioxide
from the air, forms carbonic acid, and seeps through the soil into the
subsurface to dissolve soluble rocks such as limestone and evaporites.
If substantial karst features were present at WIPP, they could increase
the speed at which releases of radionuclides travel away from the
repository through the subsurface to the accessible environment.
    In the 1998 certification decision, EPA reviewed existing
information and concluded that, although it is possible that
dissolution has occurred in the vicinity of the WIPP site sometime in
the past (e.g., Nash Draw was formed ~500,000 years ago), dissolution
is not an ongoing, pervasive process at the WIPP site. Therefore, karst
feature development would not impact the containment capabilities of
the WIPP for at least the 10,000-year regulatory period (Air Docket A-
93-02, Item III-B-2, CCA CARD 14).
    Following the 1998 certification decision, several groups
challenged EPA's decision in the United States Court of Appeals for the
District of Columbia Circuit (No. 98-1322), including EPA's conclusions
regarding

karst at the WIPP site. On June 28, 1999, the U.S. Court of Appeals
upheld all aspects of EPA's 1998 certification decision, including
EPA's conclusion that karst is not a feature that will impact the
containment capabilities of the WIPP.
    During the 2004 CRA, some stakeholders continued to assert that the
geologic characterization of the subsurface surrounding the WIPP
repository does not adequately identify the presence of karst. As a
result of these concerns, EPA conducted a thorough review of the
geologic and hydrologic information related to karst. EPA made a site
visit to re-examine the evidence of karst around the WIPP site,
prepared a technical support document (TSD) that discusses EPA's in-
depth review of the karst issue for recertification (Air Docket A-98-
49, Item II-B1-15), and requested that DOE/SNL conduct a separate
analysis of the potential for karst and address issues raised by
stakeholders. These efforts reaffirmed the previous conclusion that
pervasive karst processes have been active outside the WIPP site, but
not at WIPP.
    Again during the 2009 CRA, some stakeholders argued that major
karst features are present at WIPP, based on a report by Dr. Richard
Phillips (2009 \9\) which purported to correlate fluctuations of the
water levels of monitoring wells with rainfall events in order to prove
that rainwater reached the Culebra Dolomite through karst. EPA analyzed
the Phillips report and directed SNL to respond to challenges to the
conceptual model. The Phillips report failed to support hydrologic
arguments for the presence of karst, or to acknowledge analyses by SNL
which integrate pressure changes due to rainfall into a robust, peer-
reviewed conceptual model. The Agency finds that the data continue to
support the conclusion made during the CCA that karst will not impact
the WIPP site over the regulatory timeframe. The 2008 peer review of
the revised Culebra Hydrology Conceptual Model came to a similar
conclusion. Additional information on this topic is found in EPA's 2009
CRA Compliance Application Review Document (CARD) 15.
---------------------------------------------------------------------------

    \9\ ``PROOF OF RAPID RAINWATER RECHARGE AT THE WIPP SITE'';
Richard Hayes Phillips, PhD; March 25, 2009.
---------------------------------------------------------------------------

C. Performance Assessment: Modeling and Containment Requirements
(Sec. Sec.  194.14, 194.15, 194.23, 194.31 Through 194.34)

    The disposal regulations at 40 CFR part 191 include requirements
for containment of radionuclides. The containment requirements at 40
CFR 191.13 specify that releases of radionuclides to the accessible
environment must be unlikely to exceed specific limits for 10,000 years
after disposal. At WIPP, the specific release limits are based on the
amount of waste in the repository at the time of closure (Sec.
194.31). Assessment of the likelihood that WIPP will meet these release
limits is conducted through the use of a process known as performance
assessment, or PA.
    The WIPP PA process culminates in a series of computer simulations
that attempts to describe the physical attributes of the disposal
system (site characteristics, waste forms and quantities, engineered
features) in a manner that captures the behaviors and interactions
among its various components. The computer simulations require the use
of conceptual models that represent physical attributes of the
repository based on features, events, and processes that may impact the
disposal system. The conceptual models are then expressed as
mathematical relationships, which are solved with iterative numerical
models, which are then translated into computer codes. (Sec.  194.23)
The results of the simulations are intended to show estimated releases
of radioactive materials from the disposal system to the accessible
environment over the 10,000-year regulatory time frame.
    The PA process must consider both natural and man-made processes
and events which have an effect on the disposal system (Sec. Sec.
194.32 and 194.33). The PA must consider all reasonably probable
release mechanisms from the disposal system and must be structured and
conducted in a way that demonstrates an adequate understanding of the
physical conditions in the disposal system. The PA must evaluate
potential releases from both human-initiated activities (e.g., via
drilling intrusions) and natural processes (e.g., dissolution) that may
occur independently of human activities. DOE must justify the omission
of events and processes that could occur but are not included in the
final PA calculations.
    The results of the PA are used to demonstrate compliance with the
containment requirements in 40 CFR 191.13. The containment requirements
are expressed in terms of ``normalized releases.'' The results of the
PA are assembled into complementary cumulative distribution functions
(CCDFs) which indicate the probability of exceeding various levels of
normalized releases. (Sec.  194.34)
    To demonstrate continued compliance with the disposal regulations,
DOE submitted a new PA as part of the 2009 CRA. EPA monitored and
reviewed changes to the PA since the PABC-04, summarized below.
    DOE performed two conceptual model peer reviews between the
submission of the 2004 CRA and the 2009 CRA: The WIPP Revised Disturbed
Rock Zone and Cuttings and Cavings Submodels Peer Review, and the
Culebra Hydrogeology Conceptual Model Peer Review. These revisions did
not result in significant changes to the 2009 CRA PA. DOE again updated
its analysis of features, events and processes (FEPs) that could impact
WIPP. As in the 2004 CRA, this update of FEPs did not result in any
changes to the scenarios used in the CRA PA. Since the 2004 PABC, DOE
updated a number of parameters, including duration of a direct brine
release, cellulosics, plastics, and rubber (CPR) degradation rates,
BRAGFLO (computer code) flow chemistry implementation, capillary
pressure and related permeability, and the drilling rate and borehole
plugging patterns. DOE also corrected minor parameter errors. For more
information, refer to 2009 CRA CARDs 23 and 24.
    EPA examined the recent inventory updates and changes, mainly the
Annual Transuranic Waste Inventory Report (ATWIR) 2007 and the ATWIR
2008, and determined that a new performance assessment needed to be
conducted in order to include updated inventory information, such as an
increase in chemical components (see 2009 CRA CARD 24, Table 24-2,
produced from PAIR 2008 Table 5-7). In its first completeness letter
(dated May 21, 2009, items 1-G-3 and 1-23-1 [EPA 2009a]), EPA directed
DOE to perform updated PA calculations using the updated inventory. In
response to EPA's direction, DOE produced the 2009 Performance
Assessment Baseline Calculations (PABC-09). The Agency's review of the
PABC-09 found that DOE made all the changes required by EPA, and that
the PABC demonstrates compliance with the containment requirements
specified in 40 CFR part 191. The results of the PABC-09 are discussed
below. Additional detail on the Agency's review of the PABC-09 may be
found in CARDs 23, 24, 31-34, and specifically in the PABC-09 TSD
(Docket A-98-49, Category II-B1).
    The 2009 CRA PA and PABC-09 included calculations of the same
scenarios as the original CCA PA: (1) The undisturbed scenario, where
the repository is not impacted by human activities, and three drilling
scenarios, (2) the E1 Scenario, where one or more boreholes penetrate a
Castile brine

reservoir and also intersect a repository waste panel, (3) the E2
Scenario, where one or more boreholes intersect a repository waste
panel but not a brine reservoir, and (4) the E1E2 Scenario, where there
are multiple penetrations of waste panels by boreholes of the E1 or E2
type, at many possible combinations of intrusions times, locations, and
E1 or E2 drilling events.
    The 2009 Culebra modeling predicted shorter travel time for a
particle to travel through the Culebra to the WIPP site boundary than
did the 2004 PABC. Three main changes contributed to these changes in
flow time: The Bureau of Land Management (BLM) redefined the definition
of minable potash in 2009, in particular within the WIPP site near the
waste disposal panels; matrix distribution coefficients
(Kds) decreased several orders of magnitude for most
radionuclides when the increase in the organic ligand inventory was
included; and well SNL-14 confirmed the existence of the high-
transmissivity zone in the southeastern portion of the WIPP site. This
zone allows water to flow faster toward the Land Withdrawal Boundary
than in PABC-04 calculations. The travel time is closer to that
predicted in the original compliance certification, and releases remain
within the limits established by 40 CFR part 191. EPA considers the
PABC to be a conservative and current representation of the knowledge
of the WIPP and how it will interact with the surrounding environment.
EPA finds that DOE is in continued compliance with the requirements of
40 CFR 194.23 and 194.31 through 194.34. DOE calculated the release
limits properly (Sec.  194.31), adequately defined the scope of the PA
(Sec.  194.32), included drilling scenarios as in the original CCA
(Sec.  194.33), and calculated and presented the results of the 2009
CRA PA and PABC-09 properly (Sec.  194.34). Details on the PABC-09 may
be found in EPA's PABC-09 TSD (Docket A-98-49, Category II-B1).
    EPA received public comments related to the 2009 CRA performance
assessment. Commenters questioned whether the PA encompassed the
results of specific experiments related to plutonium nanocolloids that
enhanced groundwater transport capabilities. The Agency asked DOE to
respond, and in a letter dated September 1, 2010, DOE indicated that
although the formation of these colloids has been demonstrated to be
unlikely in the chemical conditions expected at WIPP, the PA
conservatively takes into consideration the formation and transport of
intrinsic colloids. For more information, refer to 2009 CRA CARD 24.

D. General Requirements

1. Approval Process for Waste Shipment From Waste Generator Sites for
Disposal at WIPP (Sec.  194.8)
    EPA codified the requirements of Sec.  194.8 at the time of the
1998 certification decision. Under these requirements, EPA evaluates
site specific waste characterization and QA plans to determine that DOE
can adequately characterize and track waste for disposal at WIPP. Since
1998, EPA has conducted numerous inspections and approvals pursuant to
Sec.  194.8.
    EPA previously issued an approval of DOE's general framework for
characterizing remote-handled (RH) waste in March 2004. This approval
required DOE to provide site-specific RH waste characterization plans
and characterization procedures for EPA approval prior to implementing
them for characterizing and disposing of RH waste at WIPP. Specific RH
waste streams were approved and emplaced at WIPP for the first time
during this recertification period.
    For more information on activities related to Sec.  194.8, please
refer to 2009 CRA CARD 8.
2. Inspections (Sec.  194.21)
    Section 194.21 provides EPA with the right to inspect all
activities at WIPP and all activities located off-site which provide
information in any compliance application. EPA did not exercise its
authority under this section prior to the 1998 certification decision.
    Since 1998, EPA has inspected WIPP site activities, waste generator
sites, monitoring programs, and other activities. For all inspections,
DOE provided EPA with access to facilities and records, and supported
our inspection activities. Information on EPA's 194.21 inspection
activities can be found in 2009 CRA CARD 21.
3. Quality Assurance (Sec.  194.22)
    Section 194.22 establishes quality assurance (QA) requirements for
WIPP. QA is a process for enhancing the reliability of technical data
and analyses underlying compliance applications. Section 194.22
requires DOE to demonstrate that a Nuclear Quality Assurance (NQA)
program has been established and executed/implemented for items and
activities that are important to the long-term isolation of transuranic
waste.
    EPA determined that the 2009 CRA provides adequate information to
demonstrate the establishment of each of the applicable elements of the
NQA standards. EPA has also verified the continued proper
implementation of the NQA Program through periodic audits conducted in
accordance with Sec.  194.22(e).
    EPA's determination of compliance with Sec.  194.22 can be found in
2009 CRA CARD 22.
4. Waste Characterization (Sec.  194.24)
    Section 194.24, waste characterization, generally requires DOE to
identify, quantify, and track the chemical, radiological and physical
components of the waste destined for disposal at WIPP. Since the 2004
CRA, DOE has collected data from generator sites and compiled the waste
inventory on an annual basis. DOE's 2008 Annual Tranuranic Waste
Inventory Report (ATWIR 2008) reflected the disposal intentions of the
waste generator sites as of December 31, 2007. DOE classified the
wastes as emplaced, stored or projected (to-be-generated). DOE used
data from the WIPP Waste Information System (WWIS) to identify the
characteristics of the waste that has been emplaced at WIPP. The
projected wastes were categorized similarly to existing waste (e.g.,
heterogeneous debris, filter material, soil).
    DOE's 2009 CRA recertification inventory was initially the same
inventory used for the PABC-04. During its evaluation of the
completeness of the CRA, however, EPA identified changes in the waste
inventory that were potentially impactful to PA. As previously
mentioned, EPA directed DOE to perform the 2009 PABC using the updated
inventory in the Annual Transuranic Waste Inventory Report-2008. DOE
generally kept the same categories of waste for the 2009 PABC. The
major changes were changes to waste volumes and radioactive content
since the 2004 CRA. Of particular concern to the Agency was an increase
in the volume of organic ligands in the ATWIR-2008 inventory, which
bind radionuclides, enhancing their solubility and transport. The
radioactivity of the waste was estimated to decrease since the 2004
CRA, principally because of the removal of Hanford tank waste from the
performance assessment inventory (EPA 2010f). Subsequent to the
submission of the 2009 CRA, DOE altered the preferred alternatives in
its Hanford tank waste environmental impact statement, indicating that
these tank wastes would be managed as High-Level Waste (HLW) [74 FR
67189 (2009-12-18)]. This change decreased the volume of both contact-
handled and remote-handled waste in the inventory.
    EPA reviewed the CRA and supplemental information provided by DOE
to determine whether they

provided a sufficiently complete description of the chemical,
radiological and physical composition of the emplaced, stored and
projected wastes proposed for disposal in WIPP. The Agency also
reviewed DOE's description of the approximate quantities of waste
components (for both existing and projected wastes). EPA considered
whether DOE's waste descriptions were of sufficient detail to enable
EPA to conclude that DOE did not overlook any component that is present
in TRU waste and has significant potential to influence releases of
radionuclides. The 2009 CRA did not identify any significant changes to
DOE's waste characterization program in terms of measurement
techniques, or quantification and tracking of waste components.
    Since the 1998 certification decision, EPA has conducted numerous
inspections and approvals of generator site waste characterization
programs to ensure compliance with Sec. Sec.  194.22, 194.24, and
194.8. For a summary of EPA's waste characterization approvals, please
refer to 2009 CRA CARD 8.
    As in previous certifications, stakeholders again commented that
high-level waste, commercial waste, and spent nuclear fuel must not be
allowed at WIPP. Commenters also objected to the inclusion in the
potential inventory of wastes which currently lack a TRU or defense
determination. EPA reiterates that it will not allow wastes prohibited
by the Land Withdrawal Act to be shipped to WIPP. All wastes must meet
the WIPP waste acceptance criteria and all requirements of EPA's waste
characterization program, and EPA must officially notify DOE before the
Department is allowed to ship waste to WIPP. Inclusion in the
performance assessment does not imply EPA's approval of such waste for
disposal at WIPP.
    Commenters also objected to wastes being shipped to WIPP that have
not been explicitly included in a compliant performance assessment.
Inventory, for the purposes of PA, represents a set of bounding
conditions. Any waste which represents a deviation from the expected
waste parameters will not be approved until it can be demonstrated not
to negatively impact PA results (e.g. supercompacted waste).
    Finally, commenters objected to the fact that the Comprehensive
Inventory Database (CID) is not a public document, and that the legal
process through which defense and TRU determinations are made is not
adequately transparent. The Department provided stakeholders with
additional inventory information. The Agency will continue to work with
DOE to meet stakeholders' requests for information, and to engage the
public early in inventory decisions.
    For more information on EPA's determination of compliance with
Sec.  194.24, please refer to CRA CARD 24.
5. Future State Assumptions (Sec.  194.25)
    Section 194.25 stipulates that performance assessments and
compliance assessments ``shall assume that characteristics of the
future remain what they are at the time the compliance application is
prepared, provided that such characteristics are not related to
hydrogeologic, geologic or climatic conditions.'' Section 194.25 also
requires DOE to provide documentation of the effects of potential
changes of hydrogeologic, geological, and climatic conditions on the
disposal system over the regulatory time frame. Section 194.25 focuses
the PA and compliance assessments on the more predictable significant
features of disposal system performance, instead of allowing unbounded
speculation on all developments over the 10,000-year regulatory time
frame.
    EPA concludes that DOE adequately addressed the impacts of
potential hydrogeologic, geologic and climate changes to the disposal
system. The 2009 CRA includes all relevant elements of the performance
assessment and compliance assessments and is consistent with the
requirements of Sec.  194.25. For more information regarding EPA's
evaluation of compliance with this section, see 2009 CRA CARDs 25 and
32, and the corresponding TSD for FEPs (Docket A-98-49, Category II-
B1).
6. Expert Judgment (Sec.  194.26)
    The requirements of Sec.  194.26 apply to expert judgment
elicitation, which is a process for obtaining data directly from
experts in response to a technical problem. Expert judgment may be used
to support a compliance application, provided that it does not
substitute for information that could reasonably be obtained through
data collection or experimentation. EPA prohibits expert judgment from
being used in place of experimental data, unless DOE can justify why
the necessary experiments cannot be conducted. As in 2004, the 2009 CRA
did not identify any expert judgment activities that were conducted
since the 1998 certification decision. Therefore, EPA determines that
DOE remains in compliance with the requirements of Sec.  194.26. (For
more information regarding EPA's evaluation of compliance with Sec.
194.26, see CRA CARD 26.)
7. Peer Review (Sec.  194.27)
    Section 194.27 of the WIPP Compliance Criteria requires DOE to
conduct peer review evaluations related to conceptual models, waste
characterization analyses, and a comparative study of engineered
barriers. A peer review involves an independent group of experts who
are convened to determine whether technical work was performed
appropriately and in keeping with the intended purpose. The required
peer reviews for WIPP must be performed in accordance with the Nuclear
Regulatory Commission's NUREG-1297, ``Peer Review for High-Level
Nuclear Waste Repositories,'' which establishes guidelines for the
conduct of a peer review exercise. DOE performed two conceptual model
peer reviews between the submission of the 2004 CRA and the 2009 CRA:
The WIPP Revised Disturbed Rock Zone and Cuttings and Cavings Submodels
Peer Review, and the Culebra Hydrogeology Conceptual Model Peer Review.
Additional peer reviews of waste characterization analyses included the
Los Alamos National Laboratory (LANL) Sealed Sources Peer Review, and
the LANL Remote-Handled TRU Waste Visual Examination Data Verification
Peer Review. EPA's review, both at the time of the peer reviews and
during recertification, verified that the process DOE used to perform
these peer reviews was compatible with NUREG-1297 requirements.
Therefore, EPA determines that DOE remains in compliance with the
requirements of Sec.  194.27. For more information regarding EPA's
evaluation of compliance with Sec.  194.27, see 2009 CRA CARD 27.

E. Assurance Requirements (Sec. Sec.  194.41-194.46)

    The assurance requirements were included in the disposal
regulations to compensate in a qualitative manner for the inherent
uncertainties in projecting the behavior of natural and engineered
components of the repository for many thousands of years (50 FR 38072).
The assurance requirements included in the WIPP Compliance Criteria are
active institutional controls (Sec.  194.41), monitoring (Sec.
194.42), passive institutional controls (Sec.  194.43), engineered
barriers (Sec.  194.44), presence of resources (Sec.  194.45), and
removal of waste (Sec.  194.46).
    As in the 2004 CRA, the 2009 CRA did not reflect any significant
changes to demonstrating compliance with the assurance requirements.
DOE appropriately updated the information

for the assurance requirements in Sections 41 through 46 of the 2009
CRA, and accurately reflected EPA decisions made since the 2006
certification decision, such as reducing the safety factor for the
magnesium oxide engineered barrier from 1.67 to 1.2 (Sec.  194.44).
EPA's specific evaluation of compliance with the assurance requirements
can be found in CRA CARDs 41-46.

F. Individual and Groundwater Protection Requirements (Sec. Sec.
194.51 Through 194.55)

    Sections 194.51 through 194.55 of the compliance criteria implement
the individual protection requirements of 40 CFR 191.15 and the
groundwater protection requirements of subpart C of 40 CFR part 191 at
WIPP. Assessment of the likelihood that the WIPP will meet the
individual dose limits and radionuclide concentration limits for
groundwater is conducted through a process known as compliance
assessment. Compliance assessment uses methods similar to those of the
PA (for the containment requirements) but is required to address only
undisturbed performance of the disposal system. That is, compliance
assessment does not include human intrusion scenarios (i.e., drilling
or mining for resources). Compliance assessment can be considered a
``subset'' of performance assessment, since it considers only natural
(undisturbed) conditions and past or near-future human activities (such
as existing boreholes), but does not include the long-term future human
activities that are addressed in the PA.
    Sections 194.51 through 194.55 describe specific requirements for
compliance with 40 CFR part 191 requirements at WIPP. Section 194.51
states that the protected individual must be positioned at the location
where they are expected to receive the highest dose from any
radioactive release. All potential exposure pathways are to be
considered and compliance assessments (CAs) must assume that
individuals consume two liters of water per day according to 40 CFR
194.52. 40 CFR 194.53 requires that all underground sources of drinking
water be considered and that connections to surface water be factored
into any CA. In 40 CFR 194.54 potential processes and events are to be
considered and selected in any CA and that existing boreholes or other
drilling activities be considered. 40 CFR 194.55 also requires that the
impact of uncertainty on any CA analysis and that committed effective
dose to individuals be calculated. Radionuclide concentrations in
underground sources of drinking water (USDWs) and dose equivalent
received from USDWs must also be calculated.
    In the 2009 CRA, DOE reevaluated each of the individual and
groundwater requirements. DOE again updated parameters related to the
individual and groundwater requirements for the undisturbed scenario:
For example, water use changed from 282 gallons per person per day in
the CCA to 305 in the 2004 CRA, and 273 in the 2009 CRA. By updating
this information for the compliance assessment and reviewing data from
water wells that have been drilled since the 2004 CRA, DOE confirmed
its original water source assumptions (2009 CRA Appendix IDP). DOE did
not conduct new detailed bounding dose calculations for the 2009 CRA
because the releases predicted by the 2009 CRA performance assessment
for the undisturbed scenario were an order of magnitude lower than
those used in the original CCA (Appendix IGP). EPA reviewed DOE's 2009
CRA approach to compliance with 40 CFR 194.51 to 40 CFR 194.55. EPA
verified that DOE's approach to addressing the individual and
groundwater requirements was the same as the original CCA (CRA CARDs
51/52, 53, 54, 55 for details), that the 2009 CRA PA results are lower
than the original CCA and that the recalculation of doses was not
necessary (2009 CRA Appendix IGP). Because DOE was required to correct,
update, and rerun the 2009 CRA PA, called the PABC-09, EPA reevaluated
the impact of these new results on compliance with 40 CFR 194.51 to 40
CFR 194.55, and found DOE showed continued compliance with this
requirement, documented in the 2009 PABC summary report (Clayton et al.
2009, page 21).\10\ Thus, the CCA bounding calculations do not need to
be redone. EPA finds DOE in continued compliance with 40 CFR 194.51-
194.55 requirements.
---------------------------------------------------------------------------

    \10\ ``Summary Report of the CRA-2009 Performance Assessment
Baseline Calculation''; Sandia National Laboratories; February 11,
2010.
---------------------------------------------------------------------------

VI. How has the public been involved in EPA's WIPP recertification
activities?

A. Public Information

    Since the 1998 certification decision, EPA has kept the public
informed of our continuing compliance activities at WIPP and our
preparations for recertification. EPA's main focus has been on
distributing information via the EPA Web site, and e-mail messages via
its WIPP-NEWS listserv.
    Throughout the recertification process, the Agency posted any
pertinent new information and/or updates on its WIPP Web site (http://
www.epa.gov/radiation/wipp). Many of our recertification documents
(including DOE-submitted recertification materials, correspondence,
Federal Register notices, outreach materials, hearings transcripts, as
well as technical support documents) are available for review or
download (in Adobe .pdf format), in addition to a link to our 2009
recertification docket on the regulations.gov Web site (http://
www.regulations.gov).
    Since February 2009, EPA has sent out numerous announcements
regarding the recertification schedule, availability of any WIPP-
related documents on the EPA WIPP Web site and its dockets, as well as
details for the Agency's June 2009 and May 2010 stakeholder meetings in
New Mexico.

B. Stakeholder Meetings

    As discussed in the WIPP LWA, the recertification process is not a
rulemaking; therefore public hearings were not required. However, EPA
held a series of public meetings in New Mexico in June 2009 and May
2010 to provide information about the recertification process. In an
effort to make these meetings as informative as possible to all
attending parties, EPA listened to stakeholder input and concerns and
tailored the meetings around the public as much as possible.
    The first meetings were held on June 30, 2009, in Albuquerque, New
Mexico, with both an afternoon and evening session. The main purpose of
these meetings was to discuss EPA's recertification process and
timeline, as well as DOE's application and important changes at WIPP
since the initial recertification process began in 2004. The meetings
featured brief presentations on the aforementioned topics, as well as a
roundtable, facilitated discussion. In response to stakeholder
suggestions, DOE staff members were also on hand to provide information
and answer any stakeholder questions. Participants were encouraged to
provide comments to EPA for our consideration during review of DOE's
WIPP application.
    The second public sessions were held on May 10, 2010, in
Albuquerque, New Mexico, again with an afternoon and evening session.
The main purpose of this meeting was to update the public on EPA's
recertification/completeness schedule and provide more in-depth,
technical information related to stakeholder questions and comments
raised at the first series of meetings.
    All of the issues raised at these meetings have been addressed by
EPA in the Compliance Application Review

Documents (CARDs) under the relevant section.

C. Public Comments on Recertification

    EPA posted the recertification application on its Web site
immediately following receipt. EPA formally announced receipt of the
recertification application in the Federal Register on June 16, 2009.
The notice also officially opened the public comment period on the
recertification application.
    For recertification, EPA sought public comments and input related
to the changes in DOE's application that may have a potential impact on
WIPP's ability to remain in compliance with EPA's disposal regulations.
    The comment period on the recertification application closed 396
days after it opened, on August 16, 2010. This closing date was 30 days
after EPA's announcement in the Federal Register that the
recertification application was complete.
    EPA received 13 sets of written public comments during the public
comment period. EPA considered significant comments from the written
submissions and the stakeholder meetings in its evaluation of
continuing compliance. EPA addresses these comments in CARDs that are
relevant to each topic. Additionally, a listing of all comments
received and responses to each is included in Appendix 15-C of CARD 15.
    In addition to comments on specific sections of 40 CFR part 194,
EPA received comments on general issues. Some people commented on
transportation concerns related to WIPP shipments (which are governed
by U.S. Department of Transportation regulations, not EPA) being
brought into the State of New Mexico, as well as the ``expansion'' of
WIPP and associated nuclear energy activities.
    As previously mentioned, EPA provided guidance to DOE on numerous
occasions regarding its expectations for the first recertification
application. In response to public comments received during the first
recertification, EPA and DOE also discussed ways in which both parties
could improve the overall recertification process.
    One such example is the structure of the CRA-2009. Rather than
being organized in a chapter format that was established with the
initial CCA and the CRA-2004, DOE structured the CRA-2009 to mimic the
structure of 40 CFR part 194, which is organized into topical sections
of the rule. This format follows the format used by the Agency's CARDs
and helped to facilitate EPA and stakeholder reviews of the application
by allowing a more direct evaluation of any changed information with
respect to previous applications.
    After receipt of the CRA-2009 by EPA and subsequent submissions of
additional information sent by DOE, the Agency promptly issued its
completeness determination. Once the recertification application was
deemed complete, EPA conducted its technical evaluation and is issuing
the recertification decision within the six-month timeframe specified
by the WIPP LWA.
    EPA believes that with continued experience, future
recertifications should become less lengthy. The Agency intends to
continue to work with DOE and interested stakeholders to discuss and
work on improving future recertification applications and processes.

VII. Where can I get more information about EPA's WIPP-related
activities?

A. Supporting Documents for Recertification

    The Compliance Application Review Documents, or CARDs, contain the
detailed technical rationale for EPA's recertification decision. The
CARDs discuss DOE's compliance with each of the individual requirements
of the WIPP Compliance Criteria. The document discusses background
information related to each section of the compliance criteria,
restates the specific requirement, reviews the 1998 certification
decision and 2006 recertification decision, summarizes changes in the
2009 CRA, and describes EPA's compliance review and decision--most
notably, any changes that have occurred since the 2006 recertification
decision. The CARDs also list additional EPA technical support
documents and any other references used by EPA in rendering its
decision on compliance. All technical support documents and references
are available in the Agency's dockets, via http://www.regulations.gov
(FDMS Docket ID No. EPA-HQ-OAR-2009-0330) or Air Docket A-98-49, with
the exception of generally available references and those documents
already maintained by DOE or its contractors in locations accessible to
the public. For more detailed information on EPA's recertification
decision, there are a number of technical support documents available,
which can also be found in the aforementioned docket locations and our
WIPP Web site.

B. WIPP Web Site & WIPP-NEWS E-Mail Listserv

    For more general information and updates on EPA's WIPP activities,
please visit our WIPP Internet homepage at http://www.epa.gov/
radiation/wipp. A number of documents (including DOE-submitted
recertification materials, letters, Federal Register notices, outreach
materials, hearings transcripts, as well as technical support
documents) are available for review or download in Adobe .pdf format.
The Agency's WIPP-NEWS e-mail listserv, which automatically sends
messages to subscribers with up-to-date WIPP announcements and
information, is also available online. Any individuals wishing to
subscribe to the listserv can join by visiting https://lists.epa.gov/
read/all_forums/subscribe?name=wipp-news or by following the
instructions listed on our WIPP Web site.

C. Dockets

    In accordance with 40 CFR 194.67, EPA maintains public dockets via
http://www.regulations.gov (FDMS Docket ID No. EPA-HQ-OAR-2009-0330)
and hard copies in Air Docket A-98-49 that contain all the information
used to support the Agency's decision on recertification. The Agency
established and maintains the formal rulemaking docket in Washington,
DC, as well as informational dockets in three locations in the State of
New Mexico (Carlsbad, Albuquerque, and Santa Fe). The docket consists
of all relevant, significant information received to date from outside
parties and all significant information considered by EPA in reaching a
recertification decision regarding whether the WIPP facility continues
to comply with the disposal regulations.
    As part of the eRulemaking Initiative under the President's
Management Agenda, the Federal Docket Management System (FDMS) was
established in November 2005. FDMS was created to better serve the
public by providing a single point of access to all Federal rulemaking
activities.
    The final recertification decision and supporting documentation can
be found on EPA's WIPP Web site (http://www.epa.gov/radiation/wipp) or
the regulations.gov Web site (http://www.regulations.gov) by searching
for Docket ID No. EPA-HQ-OAR-2009-0330. For more information related to
EPA's public dockets (including locations and hours of operation),
please refer to Section 1.A.1 of this document.

VIII. What happens next for WIPP? What is EPA's role in future WIPP
activities?

    EPA's regulatory role at WIPP does not end with this
recertification decision. The Agency's future WIPP activities will
include additional

recertifications every five years (the next being scheduled to begin in
March 2014), review of DOE reports on conditions and activities at
WIPP, assessment of waste characterization and QA programs at waste
generator sites, announced and unannounced inspections of WIPP and
other facilities, and, if necessary, modification, revocation, or
suspension of the certification.
    Although not required by the Administrative Procedures Act (APA),
the WIPP LWA, or the WIPP Compliance Criteria, EPA intends to continue
docketing all inspection or audit reports and annual reports and other
significant documents on conditions and activities at WIPP.
    EPA plans to conduct future recertification processes using a
similar process to that completed by EPA for this recertification, as
described in today's action. For example, EPA will publish a Federal
Register notice announcing its receipt of the next compliance
application and our intent to conduct such an evaluation. The
application for recertification will be placed in the docket, and at
least a 30-day period will be provided for submission of public
comments. Following the completeness determination, EPA's decision on
whether to recertify the WIPP facility will again be announced in a
Federal Register notice (Sec.  194.64).

    Dated: November 9, 2010.
Michael P. Flynn,
Director, Office of Radiation and Indoor Air.
[FR Doc. 2010-28806 Filed 11-17-10; 8:45 am]
BILLING CODE 6560-50-P