[Federal Register: March 24, 2010 (Volume 75, Number 56)]
[Notices]
[Page 14231-14233]
[DOCID:fr24mr10-136]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61732; File No. SR-CBOE-2010-027]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend CBOE Rule 31.85 to, Among Other Things,
Prohibit Broker Discretionary Voting on the Elections of Directors

March 18, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on March 4, 2010, the Chicago Board Options Exchange, Incorporated
(the ``Exchange'' or ``CBOE'') filed with the Securities and Exchange
Commission (the ``Commission'') the proposed rule change as described
in Items I and II below, which Items have been prepared by the
Exchange. The Exchange filed the proposal as a ``non-controversial''
proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
\3\ and Rule 19b-4(f)(6) thereunder.\4\ 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

    CBOE proposes to amend CBOE Rule 31.85 to eliminate broker
discretionary voting for all elections of directors at shareholder
meetings, whether contested or not, except for companies registered
under the Investment Company Act of 1940 (the ``1940 Act''), to amend
CBOE Rule 31.85 to preclude broker discretionary voting on a matter
that materially amends an investment advisory contract with an
investment company, and to define that a material amendment to an
investment advisory contract would include any proposal to obtain
shareholder approval of an investment company's investment advisory
contract with a new investment advisor The text of the proposed rule
change is available on the Exchange's Web site (http://www.cboe.org/
legal), at the Exchange's Office of the Secretary, and at the
Commission.

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 self-regulatory organization
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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    A shareholder of a public company may hold shares either directly,
as the record holder, or indirectly, as the beneficial holder, with the
shares held in the name of the beneficial shareholder's broker-dealer,
bank nominee, or custodian (``securities intermediary''), which is the
record holder.\5\ The latter generally is referred to as holding
securities in ``street name.'' \6\ The number of beneficial owners
holding securities in street name has increased significantly over the
past thirty-three years.
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    \5\ See Commission Release No. 34-60215 (July 1, 2009).
    \6\ See supra note 2 [sic].
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    Currently, CBOE Rule 31.85 permits brokers to vote without voting
instructions from the beneficial owner on uncontested elections of
directors.\7\ Rule 31.85 also lays out a list of enumerated items for
which a member may not give a proxy to vote without instructions from
the beneficial owner.\8\ This list does not include the election of
directors. Due to the increase in the holding of securities in street
name, the impact of the broker vote on the election of directors has
become increasingly significant. At the same time, the number of proxy
campaigns, such as ``just vote no'' or ``withhold'' campaigns, that
have targeted the election of directors without a formal contest has
also increased. This has made the ``uncontested'' election of directors
a more controversial, as opposed to routine, matter.\9\
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    \7\ See CBOE Rule 31.85(a), which explains the process and
situations in which brokers may vote without voting instructions
from the beneficial owner.
    \8\ See CBOE Rule 31.85(b).
    \9\ See supra note 2 [sic].
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    In light of this development, the New York Stock Exchange proposed
a rule filing to declare the election of directors ineligible for
broker discretionary voting.\10\ The Commission approved this filing,
as amended, on July 1, 2009.\11\ Correspondingly, CBOE proposes to
amend CBOE Rule 31.85 to add all elections of directors at shareholder
meetings whether contested or not, except for companies registered
under the 1940 Act, to the list of enumerated items for which a member
may not give a proxy to vote without instructions from the beneficial
owner.
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    \10\ See SR-NYSE-2006-92.
    \11\ See supra note 2 [sic].
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    CBOE also proposes to amend CBOE Rule 31.85 to preclude broker
discretionary voting on a matter that materially amends an investment
advisory contract with an investment company and to define that a
material amendment to an investment advisory contract would include any
proposal to obtain shareholder approval of an investment company's
investment advisory contract with a new investment advisor for which
shareholder approval is required by the 1940 Act and the rules
thereunder. These proposed amendments will help ensure the full and
effective voting rights of investment company shareholders on material
matters.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the

Securities Exchange Act of 1934 (the ``Act'') \12\ and the rules and
regulations thereunder and, in particular, the requirements of Section
6(b) of the Act.\13\ The Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \14\ requirements that the rules of
an exchange be designed to promote just and equitable principles of
trade, to prevent fraudulent and manipulative acts, to remove
impediments to and to perfect the mechanism for a free and open market
and a national market system, and, in general, to protect investors and
the public interest. Specifically, the Exchange believes that the
proposed rule change will protect investors and the public interest by
ensuring better corporate governance and transparency of the election
process for directors and by promoting greater uniformity with the
proxy rules of other exchanges.\15\ In particular, for Exchange member
firms that are also members of other exchanges, confusion might arise
as to which exchange's proxy voting rules are applicable to a company
listed on the Exchange if there are disparities between proxy voting
rules of different exchanges.\16\ The proposed rule change will better
enfranchise shareholders and enhance corporate governance and
accountability to shareholders.\17\
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    \12\ 15 U.S.C. 78s(b)(1).
    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ See Securities Exchange Act Release No. 34-61292 (January
5, 2010), 75 FR 1664 (January 12, 2010) (SR-NYSEAmex-2009-93).
    \16\ See supra note 12 [sic].
    \17\ See supra note 2 [sic].
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B. Self-Regulatory Organization's Statement on Burden on Competition

    CBOE does not believe that the proposed rule change will impose any
burden on competition 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

    No written comments were solicited or received with respect to the
proposed rule change.

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)(iii) of the Act \18\ and Rule 19b-4(f)(6) thereunder.\19\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) by its terms, become
operative prior to 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
\20\ and Rule 19b-4(f)(6)(iii) thereunder.\21\
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    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6).
    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the Exchange to give the Commission written
notice of the Exchange's 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 the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has satisfied the pre-filing requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \22\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\23\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has
requested the Commission to waive the 30-day operative delay so that
the proposal may become operative immediately upon filing. In making
this request, the Exchange stated that the proposal is based upon the
rules of NYSE and NYSE Amex. The Exchange stated that waiver of the 30-
day operative delay will allow the change to become operative
immediately and conform to the Commission's desire to eliminate any
disparities involving voting.
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    \22\ 17 CFR 240.19b-4(f)(6).
    \23\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that the waiver of the 30-day operative
delay period is consistent with the protection of investors and the
public interest.\24\ The proposal would permit the Exchange to comply
with the Commission's stated goal that self-regulatory organizations
who currently allow members to use discretionary voting for director
elections conform their rules to the NYSE's rules to eliminate any
voting disparities depending on where the shares are held. Further, the
proposal would conform the Exchange's rule to the NYSE's rule with
respect to voting on investment advisory contracts. Moreover, the
Commission notes that the NYSE's adopted rule changes were subject to
full notice and comment, and considered and approved by the
Commission.\25\ Based on the above, the Commission finds that waiving
the 30-day operative delay period is consistent with the protection of
investors and the public interest and the proposal is therefore deemed
effective upon filing.
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    \24\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
    \25\ 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 Number SR-CBOE-2010-027 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2010-027. 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 Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10

a.m. and 3 p.m. 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-CBOE-2010-027 and should be
submitted on or before April 14, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-6514 Filed 3-23-10; 8:45 am]
BILLING CODE 8011-01-P


" Flynn, Amy E." < Amy_ E._ Flynn@ omb. eop. gov> 01/ 21/ 2005 11: 53 AM To Jeff Herring/ RTP/ USEPA/ US@ EPA cc bcc Subject FW: SBA Advocacy Comments ANPRM  Potentially Inadequate Monitoring Jeff

Attached are comments from SBA Advocacy on the ANPRM. Please note, the comments were initially sent in late September, but do not appear to have been addressed in the latest draft. I would like to discuss these comments on Monday, if possible.

 Amy aflynn@ omb. eop. gov ( 202) 395 7345  Original Message From: Fraas, Arthur G. [ mailto: Arthur_ G._ Fraas@ omb. eop. gov] Sent: Tuesday, September 28, 2004 2: 55 PM To: harnett. bill@ epa. gov Cc: kevin. bromberg@ sba. gov Subject: FW: SBA Advocacy Comments ANPRM  Air Permits Inadequacy After the list of potential monitoring inadequacies from the draft ANPRM ( see p. 13 14), I would prefer to supplement this text with some discussion that will inform the comments. For example, I believe there are several, if not many post 2000 MACT rules, where PM limits were adopted, but only COMs or BLDs are required. In contrast, the question above about the inadequacy of monitoring opacity alone implicitly assumes that these are inadequate as a category. This is not what EPA found in recent rulemakings. Therefore, these questions call into doubt rules which EPA has already found adequate in post Title V rulemakings, as well as rules for which EPA has not made any recent judgments. EPA should review recent preambles and explain the basis for its determinations for some of the more important questions above. Then, EPA could solicit advice about the wisdom of its more current approaches, and contrast them, if relevant, with earlier practices.

I would suggest that EPA summarize some of the more recent rulemakings where monitoring determinations were made, and show why EPA determined that monitoring was adequate. It could compare monitoring under an NSPS and monitoring under a MACT for the same industry, and discuss whether any improvements were made under the MACT. The public could be asked to explain why the MACT monitoring requirements should not be applied now to the NSPS.

As another example, setting ranges for certain parameters may not be feasible or advisable. Those parameters can often be established only after a given plant is operational. Not all work practices may warrant recording because these are established work place procedures that also address worker safety that are always followed, or they are not an important part of reducing emissions in a given setting. There is no discussion of these or any issues regarding the potential inadequacies.

Instead of asking the question " Are there other patterns of potential monitoring inadequacies in Federal rules" after the list, it should be: " Explain where in any of the categories above, the monitoring was inadequate, and what type of monitoring should address the inadequacy"? and then, " Explain any other potential monitoring inadequacies in Federal rules."

There also is no discussion of whether the stringency of the rule is affected by changes in the monitoring requirements, including a revision of the monitoring frequency. The discussion should reiterate that EPA does not have the authority to revise the stringency of a standard by revising the monitoring requirements. There is also no discussion about the accuracy of using surrogates, such as opacity monitoring for PM. At a minimum, EPA should consider making available in the docket information about the accuracy of surrogates.


            2014 Compliance Recertification Application (CRA-2014)
          Compliance Application Review Document (CARD Section 194.8)
        Approval Process for Waste Shipment from Waste Generator Sites
                             for Disposal at WIPP

8.0  Background

	The requirements of Section 194.8 apply to the process used by the Agency to approve the disposal of waste from waste generator sites at WIPP for disposal.

	  In July 2004, EPA made changes to the approval process for waste characterization programs at the TRU sites at 40 CFR 194.8. The changes were designed to maintain or improve oversight at WIPP without modifying the technical approach that EPA employs when conducting independent inspections of the waste characterization capabilities at DOE waste generator/storage sites. EPA's waste characterization (WC) requirements and continued compliance information are provided in CARD 24. EPA's QA requirements and further QA information are provided in CARD 22. Tables for WC inspections including baseline, Tier 1 and continued compliance and QA audits conducted during the reporting period between January 2007 and December 2012 for 2014 CRA are presented in the later part of this section.

8.1  Requirements

	(a) "The Agency will determine compliance with requirements for site-specific quality assurance programs as set forth below:

		(1) Upon submission by the Department of a site-specific quality assurance 			program plan the Agency will evaluate the plan to determine whether it 				establishes the applicable Nuclear Quality Assurance (NQA) requirements of 			§194.22(a)(1) for the items and activities of §§194.22(a)(2)(i), 194.24(c)(3) and 			194.24(c)(5). The program plan and other documentation submitted by the 			Department will be placed in the dockets described in §194.67.

		(2) The Agency will conduct a quality assurance audit or an inspection of a 			Department quality assurance audit at the relevant site for the purpose of verifying 		proper execution of the site-specific quality assurance program plan. The Agency 			will publish a notice in the Federal Register announcing a scheduled 				inspection or audit. In that or another notice, the Agency will also solicit public 			comment on the quality assurance program plan and appropriate Department 			documentation described in paragraph (a)(1) of this section. A public comment 			period of at least 30 days will be allowed.

		(3) The Agency's written decision regarding compliance with the requisite quality 			assurance requirements at a waste generator site will be conveyed in a letter from 			the Administrator's authorized representative to the Department. No such 				compliance determination shall be granted until after the end of the public 				comment period described in paragraph (a)(2) of this section. A copy of the 			Agency's compliance determination letter will be placed in the public dockets in 			accordance with §194.67. The results of any inspections or audits conducted by 			the Agency to evaluate the quality assurance programs described in paragraph 			(a)(1) of this section will also be placed in the dockets described in §194.67.

		(4) Subsequent to any positive determination of compliance as described in 			paragraph (a)(3) of this section, the Agency intends to conduct inspections, in 			accordance with §§194.21 and 194.22(e), to confirm the continued compliance of 			the programs approved under paragraphs (a)(2) and (a)(3) of this section. The 			results of such inspections will be made available to the public through the 			Agency's public dockets, as described in §194.67."

	(b) "The Agency will establish compliance with Condition 3 of the certification using the following process:

		(1)  DOE will implement waste characterization programs and processes in 			accordance with § 194.24(c)(4) to confirm that the total amount of each waste 			component that will be emplaced in the disposal system will not exceed the upper 			limiting value or fall below the lower limiting value described in the introductory 			text of § 194.24(c).  Waste characterization processes will include the collection 			and use of acceptable knowledge; destructive and/or nondestructive techniques 			for identifying and measuring waste components; and the validation, control, and 			transmittal to the WIPP Waste Information System database of waste 				characterization data, in accordance with § 194.24(c)(4).

		(2)  The Agency will verify the compliance of waste characterization programs 			and processes identified in paragraph (b)(1) of this section at sites without EPA 			approval prior to October 14, 2004, using the following process:

			(i)  DOE will notify EPA by letter that a transuranic waste site is prepared 				to ship waste to the WIPP and has established adequate waste 					characterization processes and programs.  DOE also will provide the 				relevant waste characterization program plans and documentation.  EPA 				may request additional information from DOE.

			(ii)  EPA will conduct a baseline compliance inspection at the site to 				verify that adequate waste characterization program plans and technical 				procedures have been established, and that those plans and procedures are 				effectively implemented.  The inspection will include a demonstration or 				test by the site of the waste characterization processes identified in 					paragraph (b)(1) of this section.  If an inspection does not lead to approval, 			we will send an inspection report to DOE identifying deficiencies and 				place the report in the public docket described in § 194.67.  More than one 			inspection may be necessary to resolve compliance issues.

			(iii)  The Agency will announce in the Federal Register a proposed 				Baseline Compliance Decision to accept the site's compliance with § 				194.24(c)(4).  We will place the inspection report(s) and any supporting 				documentation in the public docket described in § 194.67.  The site 				inspection report supporting the proposal will describe any limitations on 				approved waste streams or waste characterization processes.  It will also 				identify (through tier designations in accordance with paragraph (b)(4) of 				this section) what changes to the approved waste characterization 					processes must be reported to and approved by EPA before they can be 				implemented.  In the notice, we will solicit public comment (for a 					minimum of 45 days) on the proposed Baseline Compliance Decision, 				including any limitations and the tier designations for future changes or 				expansions to the site's waste characterization program.

			(iv)  Our written decision regarding compliance with the requirements for 				waste characterization programs and processes described in paragraph 				(b)(1) of this section will be conveyed in a letter from the Administrator's 				authorized representative to DOE.  EPA will not issue a compliance 				decision until after the end of the public comment period described in 				paragraph (b)(2)(iii) of this section.  EPA's compliance decision will 				respond to significant and timely-received comments.  A copy of our 				compliance decision will be placed in the public docket described in § 				194.67.  DOE will comply with any requirements identified in the 					compliance decision and the accompanying inspection report.

		(3)  Subsequent to any positive determination of compliance as described in 			paragraph (b)(2)(iv) of this section, the Agency intends to conduct inspections, in 			accordance with § 194.24(h), to confirm the continued compliance of approved 			waste characterization programs and processes at transuranic waste sites.  EPA 			will make the results of these inspections available to the public in the dockets 			described in § 194.67.

		(4)  Subsequent to any positive determination of compliance as described in 			paragraph (b)(2)(iv) of this section, the Department must report changes or 			expansions to the approved waste characterization program at a site in accordance 		with the tier designations established in the Baseline Compliance Decision.

			(i)  For changes or expansions to the waste characterization program 				designated as "Tier 1," the Department shall provide written notification 				to the Agency.  The Department shall not ship for disposal at WIPP any 				waste that has been characterized using the new or revised processes, 				equipment, or waste streams until EPA has provided written approval of 				such new or revised systems.

			(ii)  For changes or expansions to the waste characterization program 				designated as "Tier 2," the Department shall provide written notification 				to the Agency.  Waste characterized using the new or revised processes, 				equipment, or waste streams may be disposed at WIPP without written 				EPA approval.

			(iii)  EPA may conduct inspections in accordance with § 194.24(h) to 				evaluate the implementation of Tier 1 and Tier 2 changes or expansions to 				the waste characterization program at a site.

			(iv)  Waste characterization program changes or expansions that are not 				identified as either "Tier 1" or "Tier 2" will not require written notification 			by the Department to the Agency before implementation or before 					shipping waste for disposal at WIPP.

		(5) Subsequent to any positive determination of compliance as described in 			paragraph (b)(2)(iii) of this section, EPA may revise the tier designations for 			approving changes or expansions to the waste characterization program at a site 			using the following process:

			(i)  The Agency shall announce the proposed tier changes in a letter to the 				Department.  The letter will describe the Agency's reasons for the 					proposed change in tier designation(s).  The letter and any supporting 				inspection report(s) or other documentation will be placed in the dockets 				described in § 194.67.

			(ii)  If the revised designation entails more stringent notification and 				approval requirements (e.g., from Tier 2 to Tier 1, or from undesignated to 			Tier 2), the change shall become effective immediately and the site shall 				operate under the more stringent requirements without delay.

			(iii)  If the revised designated entails less stringent notification and 					approval requirements, (e.g., from Tier 1 to Tier 2, or from Tier 2 to 				undesignated), EPA will solicit comments from the public for a minimum 				of 30 days.  The site will continue to operate under the more stringent 				approval requirements until the public comment period is closed and EPA 				notifies DOE in writing of the Agency's final decision.

		(6)  A waste generator site that EPA approved for characterizing and disposing 			transuranic waste at the WIPP under this section prior to October 14, 2004, may 			continue characterizing and disposing such waste at the WIPP under paragraph (c) 		of this section until EPA has conducted a baseline compliance inspection and 			provided a Baseline Compliance Decision under paragraph (b)(2) of this section.

			(i)  Until EPA provides a Baseline Compliance Decision for such a site, 				EPA may approve additional transuranic waste streams for disposal at 				WIPP under the provisions of paragraph (c) of this section.  Prior to the 				effective date of EPA's Baseline Compliance Decision for such a site, 				EPA will continue to conduct inspections of the site in accordance with
			§ 194.24(c).

			(ii)  EPA shall conduct a baseline compliance inspection and issue a 				Baseline Compliance Decision for such previously approved sites in 				accordance with the provisions of paragraph (b) of this section, except that 			the site shall not be required to provide written notification of readiness as 				described in paragraph (b)(2)(i) of this section."

	(c) "For a waste generator site that EPA approved for characterizing and disposing transuranic waste at the WIPP under this section prior to October 14, 2004, the Agency will determine compliance with the requirements for use of process knowledge and a system of controls at waste generator sites as set forth below.  Approvals for a site to characterize and dispose of transuranic waste at WIPP will proceed according to this section only until EPA has conducted a baseline compliance inspection and provided a Baseline Compliance Decision for a site under paragraph (b)(2) of this section.

		(1)  For each waste stream or group of waste streams at a site, the Department 			must:

			(i)  Provide information on how process knowledge will be used for waste 				characterization of the waste stream(s) proposed for disposal at the WIPP; 				and

			(ii)  Implement a system of controls at the site, in accordance with 					§194.24(c)(4), to confirm that the total amount of each waste component 				that will be emplaced in the disposal system will not exceed the upper 				limiting value or fall below the lower limiting value described in the 				introductory text of §194.24(c).  The implementation of such a system of 				controls shall include a demonstration that the site has procedures in place 				for adding data to the WIPP Waste Information System ("WWIS"), and 				that such information can be transmitted from that site to the WWIS 				database; and a demonstration that measurement techniques and control 				methods can be implemented in accordance with §194.24(c)(4) for the 				waste stream(s) proposed for disposal at the WIPP.

		(2)  The Agency will conduct an audit or an inspection of a Department audit for 			the purpose of evaluating the use of process knowledge and the implementation of 		a system of controls for each waste stream or group of waste streams at a waste 			generator site.  The Agency will announce a scheduled inspection or audit by the 			Agency with a notice in the Federal Register.  In that or another notice, the 			Agency will also solicit public comment on the relevant waste characterization 			program plans and Department documentation, which will be placed in the 			dockets described in §194.67.  A public comment period of at least 30 days will 			be allowed.

		(3) The Agency's written decision regarding compliance with the requirements 			for waste characterization programs described in paragraph (b)(1) of this section 			for one or more waste streams from a waste generator site will be conveyed in a 			letter from the Administrator's authorized representative to the Department.  No 			such compliance determination shall be granted until after the end of the public 			comment period described in paragraph (b)(2) of this section.  A copy of the 			Agency's compliance determination letter will be placed in the public dockets in 			accordance with §194.67.  The results of any inspections or audits conducted by 			the Agency to evaluate the plans described in paragraph (b)(1) of this section will 			also be placed in the dockets described in §194.67.

		(4)  Subsequent to any positive determination of compliance as described in 			paragraph (b)(3) of this section, the Agency intends to conduct inspections, in 			accordance with §§194.21 and 194.24(h), to confirm the continued compliance of 			the programs approved under paragraphs (b)(2) and (b)(3) of this section.  The 			results of such inspections will be made available to the public through the 			Agency's public dockets, as described in §194.67."

8.2  1998 Certification Decision

	At the time of the 1998 Certification Decision EPA's WIPP Compliance Criteria were appended to include the requirements of Section 194.8, Approval Process for Waste Shipment from Waste Generator Sites for Disposal at the WIPP.

	Conditions 2 and 3 of the 1998 Certification Decision relate to activities conducted at waste generator sites that produce the transuranic waste proposed for disposal in the WIPP. The WIPP compliance criteria (§§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 inspect the reliability/quality of those controls. At the time of EPA's proposed certification decision, the Los Alamos National Laboratory (LANL) was the only site to demonstrate the proper execution of the required QA programs and the implementation of the required waste characterization system of controls. Therefore, EPA's 1998 Certification Decision allowed only LANL to ship the retrievably-stored (legacy) debris waste for disposal at the WIPP.  This decision was based on EPA's inspection of the applicable system of controls for characterizing the waste contents and tracking waste components of this waste type.

	As described in the 1998 Certification Decision, before other waste may be shipped for disposal at the WIPP, EPA must separately approve the QA programs at 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 (of a DOE audit) or audit of the waste generator site by EPA. The Agency's approval of WC systems of controls and QA programs were to be conveyed in a letter from EPA to DOE.

	As part of the 1998 Certification Decision, EPA's approval processes for waste generator site programs have been incorporated into the body of the WIPP compliance criteria, in a new section at §194.8.

8.3 Changes in the 2004 Compliance Recertification Application (2004 CRA or CRA04)

	DOE added a discussion of the requirements for Section 194.8 to the 2004 CRA.

	The 2004 CRA notes that "[b]ased on the [EPA] acceptance of the site-specific waste characterization and QA program, the CBFO Manager is responsible for granting and revoking the program certification that allows the TRU waste site to characterize and to ship waste to WIPP" (See 2004 CRA Chapter 4, page 4-41), but also adds that "[c]onsistent with the provisions of section 194.8, the EPA also has a role in the approval process. The EPA determines compliance with requirements for site-specific QA programs." (See 2004 CRA Chapter 4, Page 4-42).  In addition to determination of QA compliance, EPA also approves the waste characterization programs at generator sites to ensure that the system of controls required to track important components is technically adequate.

	The 2004 CRA notes that according to the WWIS, the following five (5) sites had approved QA and WC programs under the Section 194.8 requirements, as of September 30, 2002: Hanford-RL, Idaho National Engineering and Environmental Laboratory (INEEL), Los Alamos National Laboratory (LANL), Rocky Flats Environmental Technology Site (RFETS), and the Savannah River Site (SRS). Additionally, the DOE's Central Characterization Project (CCP) had been approved to ship waste from SRS, Argonne National Laboratory-East (ANL-E), and the Nevada Test Site (NTS). (See 2004 CRA Chapter 4, Table 4-3).

8.3.1  Evaluation of Compliance for 2004 Recertification

	EPA regulations governing the disposal of TRU waste at the WIPP require EPA to inspect and approve waste characterization activities at DOE waste generator sites. Before waste is sent to WIPP for disposal, EPA conducts inspections at the generator sites to verify that the waste characterization program can measure and track how much waste goes to WIPP and what that waste contains.

	In July 2004, EPA finalized changes to the requirements of Section 194.8 (b).  These changes were made to add flexibility and focus to our oversight of the waste characterization approval process. The changes allow EPA to issue a single approval for each waste generator site, followed by ongoing EPA inspections and reporting of important changes by DOE. The current requirements of Section 194.8(b) provide for public comment on EPA's proposed approval decisions instead of focusing on plans and procedures prepared by DOE.  These changes do not affect EPA's technical approach used during an independent inspection and they do not lessen the requirements that DOE must meet in order to dispose of waste at WIPP.

	EPA is continually evaluating compliance with the requirements of Section 194.8 through WC inspections, observations and technical reviews. Table CARD 8-1: EPA Waste Characterization Inspections - May 1998 - September 2005 in CARD 8 accompanying EPA's 2004 Recertification Decision identifies Section 194.8(b) inspections through September 2005.  These waste characterization inspection reports and approval letters are available from the EPA Air Docket A-98-49, II-A4-1 to 28. Similarly, CARD 8 presents a list of QA audits and accompanying reports and letters completed between January 1997 and December 2001 and can be found in CARD 8 of EPA's 2004 Recertification Decision available in the EPA Air Docket EPA-HQ-OAR-2004-0025.

	The 2004 CRA did not identify inspections that EPA conducted at three CH generator sites (e.g., INEEL, Summer 2001, LANL, Fall 2003, and Hanford, Summer 2004) to investigate why uncertified waste containers were shipped to and disposed of at the WIPP.  In all cases, DOE suspended shipment of the waste under investigation until EPA completed its inspection and approval. The issues associated with errors were ultimately resolved and corrective actions were taken to avoid future occurrences.

	EPA did not receive any public comments on DOE's continued compliance with the approval process for waste shipment from WIPP waste generator sites for Disposal at the WIPP requirements of Section 194.8.

8.3.2  2004 Recertification Decision

	Based on a review and evaluation of the 2004 CRA, supplemental information provided by DOE (FDMS Docket ID No. EPA-HQ-OAR-2004-0025, Air Docket A-98-49) and EPA inspections and audits, EPA determined that DOE continued to comply with the requirements for Section 194.8

8.4 Changes in the 2009 Compliance Recertification Application (2009 CRA or CRA09)

Since 2004 CRA, on July 16, 2004, EPA revised 40 CFR 194.8 "Approval process for shipment from waste generator sites for disposal at the WIPP" requirements. This change required that the EPA conduct baseline inspections at all previously approved and new CH and RH waste generator sites. In addition, the revised rule required that EPA evaluates and approves tier 1 (T1) changes to the waste generator sites with an approved baseline waste characterization program. Table CARD 8-1 of the 2009 CRA lists EPA's waste characterization inspections and approvals that DOE compiled and submitted to EPA in February 2010. (Source: February 4, 2010 email Titled "Submittal of the Updated CARD 8 Tables for the 2009 EPA Completeness Review", from Michelle Alexander to Jonathan Edwards; Regulations.gov EDOCKET ID# EPA-HQ-OAR-2009-0330-0031)

The biggest change to the QA Programs since the 2004 Recertification was the expansion of the QA Program of the Central Characterization Project (CCP QA). The QA Programs for most waste generator sites are now under CCP QA, whose main office is located at Carlsbad NM. The EPA believes that this change has been beneficial to increasing the consistency of the waste generators' QA Programs. The number of EPA QA audits was reduced due to the reduction in the number of different waste generators, and most of the remaining audits focused on the CCP QA main office. CARD 8 provides a list of EPA audits conducted since October 2005. The EPA audit reports of the CBFO QA programs can be found in EPA Air Docket A-98-49, Item II-A1.

      The EPA did not receive any public comments on DOE's continued compliance with the approval process for waste shipment from WIPP waste generator sites for Disposal at the WIPP requirements of Section 194.8.

8.3.2  2009 Recertification Decision

	Based on a review and evaluation of the 2009 CRA, supplemental information provided by DOE (FDMS Docket ID No. EPA-HQ-OAR-2009-0330, Air Docket A-98-49) and EPA inspections and audits, EPA determined that DOE continued to comply with the requirements of Section 194.8.

8.4.1  Evaluation of 2014 Compliance for Recertification

	The EPA regulations governing the disposal of TRU waste at the WIPP require EPA to inspect and approve waste characterization activities at DOE waste generator sites.  Before waste is sent to WIPP for disposal, the EPA approval is necessary. Without the EPA's approval of a waste characterization program or program component (equipment), a waste stream (typically for RH waste), or a waste summary category group (typically for CH waste), DOE cannot certify a TRU site, or expand the existing site certification to add equipment, a new waste stream, or a waste summary category group. The EPA continues to conduct unannounced and continued compliance inspections at the generator sites to verify that the waste characterization program can measure and track how much waste goes to WIPP and what that waste contains.

	The EPA is continually evaluating compliance with the requirements of Section 194.8 through QA and WC inspections, observations and technical reviews. Table CARD 8-1 lists all EPA, Section 194.8(b) and Section 194.24 (i.e., continued compliance) inspections between October 2009 and November 2012. All of the EPA inspection reports are available in EPA's Air Docket and can be obtained using the Docket Nos. identified in the Table below.

            Table CARD 8-1: EPA Waste Characterization Inspections
                      January 2007 through December 2012
During the reporting period for 2014 CRA, the EPA conducted eight continued compliance and unannounced inspections that are listed in italic.

Site
Inspection/Tier 1 Evaluation
Date Performed
Date Approved
EPA Docket
AMWTP/BNFL

                    ANL/CCP
Unannounced Inspection
October 16, 2007

November 26, 2007

EPA Docket No. A-98-49; II-A4-94

Tier 1 addition of BN-510 waste stream
March 2, 2010
June 10, 2010
EPA Docket No. A-98-49; II-14-127

Continued Compliance Inspection
November 17-18, 2010
March 16, 2011
EPA Docket No. A-98-49; II-A4-143

Continued Compliance Inspection
October 30 to November 1, 2012
Not issued
Not issued

Tier 1 RH Visual Examination (VE) newly packaged waste
May 28, 2008
July 10, 2008
EPA Docket No. A-98-49; II-A4-102

Tier 1 addition of 30 containers of K Wing RH waste to Argonne East Remote Handled Debris Mixed (AERHDM) waste
May 20-21, 2010
September 13, 2010
EPA Docket No. A-98-49; II-A4-132

Tier 1 Addition of 100 Alpha Gamma Hot Cell Facility Debris containers to waste stream AEHRDM
July 2010
September 29, 2010
EPA Docket No. A-98-49; II-A4-136

Tier 1 Addition of 120 containers to AERHDM
June 29, 2010
September 28, 2010
EPA Docket No. A-98-49; II-A4-134

Tier 1 Addition of 30-gallon RH containers of fuel examination waste (FEW) to AERHDM
May 4 and 18, 2010
November 22, 2010
EPA Docket No. A-98-49; II-A4-140

Tier 1 to add eight 55-gallon K-Wing FEW RH containers to AERHDM
September 2011
February13, 2012
EPA Docket No. A-98-49; II-A4-158

Tier 1 Solidified Liquid Waste from K-Wing, Building 205
January 3, 2012
June 14, 2012
EPA Docket No. A-98-49; II-A4-162

Tier 1 2[nd] batch of RH FEW in 30-gallon containers
February  -  June, 2012
October 4, 2012
EPA Docket No. A-98-49; II-A4-140

Tier 1 of the Analytical Chemistry Lab (ACL)

July 31-August 1, 2012

September 4, 2012

EPA Docket No. A-98-49; II-A4-165

Tier 1 add two RH debris waste streams to AERHDM
September 2012
October 4, 2012
EPA Docket No. A-98-49; II-A4-167

BAPL/CCP
Baseline Inspection
August 30, 2010, September 23, 2010, December 8, 2010, and April 12-13, 2011
July 28, 2011
EPA Docket No. A-98-49; II-A4-151
GEVNC/CCP
RH Waste Baseline Inspection
December 2-4, 2008
August 26, 2009
EPA Docket No. A-98-49; II-A4-115
Hanford (RL)/CCP
CH Waste Baseline Inspection

Tier 1 K Basin CH waste

                                2nd CH Waste Baseline Inspection

Tier 1 Super HENC

Hanford Tier 1 CH Solids (Limited) streams
June 4-7 and 27, 2007

                               May 2009

April 27-29, 2010

                                  March 22-23, 2011

June-July, 2011

July 17, 2008

                                N A

December 21, 2010

                            May 2, 2011

November 10, 2011
EPA Docket No. A-98-49; II-A4-106

EPA Docket No. A-98-49; II-A4-116

EPA Docket No. A-98-49; II-A4-138

EPA Docket No. A-98-49; II-A4-146
                                                                                EPA Docket No. A-98-49: II-A4-154

INL/CCP
Tier I CH Super HENC
                                    Tier 1 RH to add K-Cell waste
                                   Tier 1 Dose-To-Curie Probe Change

Tier 1 Waste Assay Gamma System density range extension
January 23-24, 2007

January 8-10, 2008

February-March, 2008

June 9, 2008

February 28, 2007_

January 24, 2008

April 11, 2008

October 7, 2008

EPA Docket No. A-98-49; II-A4-86
                                           EPA Docket No. A-98-49; II-A4-97
                                   EPA Docket No. A-98-49; II-A4-98

EPA Docket No. A-98-49; II-A4-107

Continued Compliance Inspection

Tier 1 addition of VE CH S5000 retrievably stored waste stream
                                        Tier 1 RH VET
September 16-18, 2008 and December 2008
                         December 9-11, 2008

                              August 11, 2009

March 25, 2009

                         March 4, 2009

                       September 22, 2009

EPA Docket No. A-98-49; II-A4-112

EPA Docket No. A-98-49; II-A4-110

EPA Air Docket No. A-98-49; II-A4-118

Tier 1 addition of ID-HFEF-S5400-RH Lot 1A and ID-ANLE-S5000 waste streams
December 9-11, 2008
February 1, 2010
EPA Docket No. A-98-49; II-A4-122

Tier 1 addition of ID-MFC-S5400-RH waste stream
April-May 2010
June 11, 2010
EPA Docket No. A-98-49; II-A4-126

Tier 1 addition of ID-INTEC-RH waste stream
December 8-9, 2009, January 12-13, 2010, and February 17, 2010
August 17, 2010
EPA Docket No. A-98-49; II-A4-130

Tier 1 addition of Osprey and ID-HFEF-S5400-RH Lot 1B waste streams
July 13, 2009, to June 2010

August 23, 2010
EPA Docket No. A-98-49; II-A4-131

Tier 1 High Efficiency Neutron Counter (HENC) operating range extension
July 1, 2009
September 22, 2010
EPA Docket No. A-98-49; II-A4-119

Tier 1 addition of ID-RTC-S3000 waste stream
September 22, 2009
November 1, 2010
EPA Docket No. A-98-49; II-A4-137

Tier 1 addition of IN-ID-NRF-153 waste stream
August 9-10, 2010
November 1, 2010
EPA Docket No. A-98-49; II-A4-135

Continued Compliance Inspection

Tier 1 RH HFEF Lot 4A
                                 Tier 1 WAGS Cd Filter
November 16-17, 2010

February-March 2011

May 2011
March 16, 2011

                          March 23, 2011

June 23, 2011
EPA Docket No. A-98-49; II-A4-142

EPA Docket No. A-98-49; II-A4-145
                                                EPA Docket No. A-98-49; II-A4-150

Tier 1 RH waste stream IN-ID-NRF-SPC
                                 Tier 1 RH to add Lot 2 waste ID-ANLE-S5000

Unannounced Inspection -characterization of NRD Waste concurrently at CBFO and INL
October 4-5, 2011

                                    May 8-9, 2012

September 19-20, 2011

March 12, 2012

                           July 25, 2012

January 4, 2012
EPA Docket No. A-98-49; II-A4-159

EPA Docket No. A-98-49; II-A4-163

                            EPA Docket No. A-98-49; II-A4-157

LANL/CCP
CH Waste Baseline Inspection
                                Tier I CH HENC 2

Tier 1 CH HENC 1 Calibration Extension

RH Waste Baseline Inspection

Non-Conformance Report Evaluation
May 23-24, 2006 and August 22, 2006
                              September 2007

November, 2007

                               May 8-10, 2007

                                   July 29, 2008
June 21, 2007

October 22, 2007

December 7, 2007

                        February 19, 2008

                           August 21, 2008

EPA Docket No. A-98-49; II-A4-88
                               EPA Docket No. A-98-49; II-A4-91
                               EPA Docket No. A-98-49; II-A4-95

EPA Docket No. A-98-49; II-A4-96

EPA Docket No. A-98-49; II-A4-105

Tier 1 HENC2 Report
(Non-Approval)
May 25-26, 2010
November 8, 2010
EPA Docket No. A-98-49; II-A4-139

Continued Compliance Inspection

Tier 1 CH Super HENC
May 25-26, 2010

                          August 16-17, 2011

February 9, 2011

                       October 28, 2011
EPA Docket No. A-98-49; II-A4-141

EPA Docket No. A-98-49: II-A4-153

Tier 1 CH HENC2 expansion of calibration range for lead-lined 55-gallon drums
April 28, 2010
April 30, 2012
EPA docket No. A-98-49; II-A4-139

Tier 1 CH Super HENC1 extension of calibration range to assay lead-lined 55-gallon drums containing solidified materials
June 20-21, 2012
August 14, 2012
EPA Docket No. A-98-49; II-A4-164

Tier 1 approval to add Summary Category Group S4000
September  -  November, 2012
December 31, 2012
EPA Docket No. A-98-49; II-A4-168
ORNL/CCP
CH Waste Baseline Inspection
November 2007
August 25, 2008
EPA Docket No. A-98-49; II-A4-103

Tier 1 CH Calibration Extension for segmented gamma scanner
Unknown
October 8, 2008
EPA Docket No. A-98-49; II-A4-108

Tier 1 CH Calibration Extension for Drum Waste Assay System Imaging Passive Active Neutron
November 17, 2008
January 8, 2009
EPA Docket No. A-98-49; II-A4-109

RH Waste Baseline Inspection
June 30-July 2, 2008
February 3, 2009
EPA Docket No. A-98-49; II-A4-111

Tier 1 to add Solvent Extraction Test Facility waste from November 1978-November 1991 to OR-REDC-RH-HET waste
May 6, 2009
November 30, 2009
EPA Docket No. A-98-49; II-A4-120

Tier 1 addition of CH Summary Category Group S4000 waste
Unannounced Inspection
August 11-12, 2009

June 24-25, 2009
October 7, 2009

November 23, 2009
EPA Docket No. A-98-49; II-A4-117
                             EPA Docket No. A-98-49; II-A4-121

Tier 1 addition of CH VE and IQ3
February 23-24, 2010
March 30, 2010
EPA Docket No. A-98-49; II-A4-125

Tier 1 addition of RH Solvent Extraction Test Facility Pre-79 waste stream
February-March, 2010
April 21, 2010
EPA Docket No. A-98-49; II-A4-124

Tier 1 addition of CH Burial Trench Soil Waste
February-March 2011
March 23, 2011
EPA Docket No. A-98-49; II-A4-144
SNL/CCP
RH Waste (SNL-HCF-S5400-RH) Baseline Inspection

Tier 1 to include RH containers generated from waste groups PKE00027/54 and PKE00047 in existing waste stream SNL-HCF-S5400-RH
March 8, May 10 and June 7-8, 2011

                         December 2011 to January 2012
November 23, 2011

March 28, 2012
EPA Docket No. A-98-49; II-A4-155

                            EPA Docket No. A-98-49; II-A4-160
SRS/CCP
Tier 1 SGS

Tier 1 addition of SRS Battelle Columbus Laboratory waste stream SR-RL-BCLDP.001
August 7-8, 2007

July 17-19, 2007, July 31-August 2, 2007, and December 4-5, 2007
August 30, 2007

August 25, 2008
EPA Docket No. A-98-49; II-A4-90
                              EPA Docket No. A-98-49; II-A4-104

Tier 1 addition of Nondestructive Assay Box Counter (NABC)
March 24-26, 2009
August 4, 2009
EPA Docket No. A-98-49; II-A4-114

Tier 1 addition of CH S3000 waste
September 30, 2010
March 23, 2010
EPA Docket No. A-98-49; II-A4-123

Tier 1 addition of SR-BCLDP.001.001, SR-BCLDP.001.002, SR-BCLDP.002, SR-BCLDP.003, SR-BCLDP.004.002, SR-BCLDP.004.003 waste streams
November 2009  -  March 2010
September 13, 2010
EPA Docket No. A-98-49; II-A4-129

Tier 1 extension of calibration to the NABC
March 24-26, 2009
September 14, 2010
EPA Docket No. A-98-49; II-A4-133

Tier 1 allowing use of American Society for Testing and Materials standard efficiency calibration method for NABC
                                Tier 1 RH Sabotage Drum
May 12, 2011 timeframe

                             April - May 2011
May 31, 2011

June 8, 2011

EPA Docket No. A-98-49; II-A4-148

                            EPA Docket No. A-98-49; II-A4-149

RH Baseline Inspection
July 26, 2011
April 18, 2012
EPA Docket No. A-98-49; II-A4-161

Tier 1 request for using 5-foot setback configuration for the NABC
August 14-15, 2012
September 11, 2012
EPA Docket No. A-98-49; II-A4-166

In addition to the baseline and Tier 1 inspections, the EPA performs continued compliance (announced) and unannounced inspections to verify that the approved sites continue to implement EPA-approved system of controls when characterizing waste for WIPP disposal. During the reporting period for 2014 CRA, the EPA conducted eight continued compliance and unannounced inspections that are listed in the above table in italic. These are conducted in accordance with §194.24 requirements that are discussed in CARD 24 available in FDMS Docket ID No. EPA-HQ-OAR-2014-0609, Air Docket A-98-49 accompanying EPA's 2014 Recertification Decision.

The EPA received one public comments on DOE's T1 change inspections at Argonne National Laboratory. This comment and EPA's response is included in FDMS Docket ID No. EPA-HQ-OAR-2014-0609, Air Docket A-98-49 accompanying EPA's 2014 Recertification Decision. The comment is also responded to in the Federal Register Notice announcing the 2014 Recertification Decision available in the same docket. The EPA did not receive any public comment on DOE's continued compliance with the approval process for waste shipment from WIPP waste generator sites for Disposal at the WIPP requirements of Section 194.8.

The EPA conducted QA audits during the reporting period of January 2007 and December 2012 and are listed in Table 8.1 of CARD 22. As discussed in CARD 22, the EPA finds that the waste generators' QA Programs continue to be effective at identifying problems with waste characterization items and activities that are important to the long-term isolation of transuranic waste.  This quality problem was also properly documented and controlled by QA Specialists, and corrected by the responsible operational groups.

8.3.2  2014 Recertification Decision

	Based on a review and evaluation of the 2014 CRA, supplemental information provided by DOE (FDMS Docket ID No. EPA-HQ-OAR-2014-0609, Air Docket A-98-49) and EPA inspections and audits, EPA determined that DOE continued to comply with the requirements for Section 194.8.