[Federal Register: April 10, 2006 (Volume 71, Number 68)]
[Rules and Regulations]
[Page 18010-18021]
[DOCID:fr10ap06-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 194

[EPA-HQ-OAR-2004-0025; FRL-8055-1]

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: Final notice.

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SUMMARY: With this notice, 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.
    Today's action represents the first instance of EPA's 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'' will occur five years after the WIPP's initial
receipt of TRU waste (March 26, 1999), and every five years thereafter
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, as this first
recertification is today. According to the WIPP LWA, Section 8(f),
these periodic recertification determinations are not subject to
rulemaking or judicial review.
    Today's 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.
    Today's 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.

DATES: The effective date for the recertification was March 29, 2006.

FOR FURTHER INFORMATION CONTACT: Ray Lee or Sharon White, Radiation
Protection Division, Center for Federal Regulations, Mail Code 6608J,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue,
Washington, DC, 20460; telephone number:<PHONE_NUMBER>; fax number: 202-
343-2305; 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 (Docket ID
No. EPA-HQ-OAR-2004-0025), hard-copy Air Docket A-98-49, or on its WIPP
Web site (http://www.epa.gov/radiation/wipp).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. What is WIPP?
    A. 1998 Certification 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 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, Listserv, Information Line, and Mailing List
    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-2004-0025; FRL-8053-5. 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>. These documents are
also available for review in hard-copy form at the following three EPA
WIPP informational docket locations in New Mexico: in Carlsbad at the
Municipal Library, Hours: Monday-Thursday, 10 a.m.-9 p.m., Friday-
Saturday, 10 a.m.-6 p.m., and Sunday, 1 p.m.-5 p.m., phone number: 505-
885-0731; in Albuquerque at the Government Publications Department,
Zimmerman Library, University of New Mexico, Hours: vary by semester,
phone number:<PHONE_NUMBER>; and in Santa Fe at the New Mexico State
Library, Hours: Monday-Friday, 9 a.m.-5 p.m., phone number: 505-476-
9700. 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
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 layer of salt 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, Pub. L.
96-164, section 213.
    \2\ WIPP Land Withdrawal Act, Pub. L. 102-579, section 2(18), as
amended by the 1996 WIPP LWA Amendments, Pub. L. 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 Idaho, 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''). The Agency found the Option D design to
be adequate, but also determined that the use of a Salado mass
concrete--using brine rather than fresh water--would produce concrete
seal permeabilities in the repository more consistent with the values
used in DOE's performance assessment. Therefore, 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. At the time of EPA's
proposed certification decision, the Los Alamos National Laboratory
(LANL) was the only site to demonstrate the execution of the required
QA programs and the implementation of the required system of controls.
Therefore, EPA's certification constituted final approval under the
WIPP LWA for DOE to ship waste for disposal at the WIPP only from LANL,
and only for retrievably-stored (legacy) debris waste at LANL for which
EPA had inspected and approved the applicable system of controls.
    Before other waste can be shipped for disposal at WIPP, Conditions
2 and 3 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 approval of
waste characterization systems of controls and QA programs are conveyed
by letter from EPA to DOE. In response to public comments on these
conditions, the process for EPA approvals for waste generator site
programs were incorporated into the body of the WIPP Compliance
Criteria, in Sec.  194.8. EPA also recently made changes to the
compliance criteria in July 2004 (69 FR 42571-42583). The 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 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, DOE
provided a design for a system of PICs, but stated that many aspects of
the design would not be finalized for many years (even up to 100) after
closure. The PICs actually constructed and placed in the future must be
consistent with the basis for EPA's certification decision. Therefore,
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.
    The complete record and basis for EPA's 1998 certification decision
can be found in Air Docket A-93-02 in each of the dockets (in
Washington, DC and the three locations in New Mexico) listed in Section
1.A.1 of this document.

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--
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 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.\7\ 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\ WIPP LWA, sections 7(b)(3) and 9.
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IV. What has EPA's role been at WIPP since the 1998 Certification
Decision?

A. Continuing Compliance

    Since EPA's 1998 certification 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, site inspections and technical information exchanges.
    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 EPA's 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 they 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). At the same time, EPA chose to
defer review of a new panel closure design until after we issue 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). As of March 2006, DOE has
installed the isolation explosion wall for Panels 1 and 2. EPA expects
DOE to re-submit a new panel closure design soon after this
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 announced on EPA's WIPP Web
site (http://www.epa.gov/radiation/wipp) and WIPP e-mail listserv. The

public has had the opportunity to submit written comments on the waste
characterization and QA program plans submitted by DOE in the past, and
based on the newly-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 eight
waste generator sites since 1998, including Idaho National Laboratory,
Hanford, Rocky Flats Environmental Technology Site, Savannah River
Site, and the Nevada Test Site. 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 and Technical Exchanges

    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 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.
    EPA and DOE held numerous technical exchanges since the 1998
certification decision. At these exchanges, EPA and DOE discussed
preparations for recertification, activity schedules, changes that may
be requested by DOE, and other technical issues. The materials
distributed at these meetings can be found in EPA Air Docket A-98-49,
Category II-B3.

V. What is EPA's 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.

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).\8\
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    \8\ 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 one-
year period for EPA's review, as provided by the WIPP LWA, shall be
devoted to substantive, meaningful review of the application (61 FR
5226).
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    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 recertification application updated the previous
compliance application with sufficient information for the Agency to
determine whether or not WIPP

continues to be in compliance with the disposal regulations.
    The first step in recertification is termed the ``completeness
determination.'' ``Completeness'' is a key, administrative step that
EPA uses to determine that the CRA addresses all the required
regulatory elements and provides sufficient information for EPA to
conduct a full, technical review. Following receipt of the CRA on March
26, 2004, EPA began to identify areas of the application where
additional information was needed. A May 24, 2004, Federal Register
notice announced availability of the CRA and opened the official public
comment period on the CRA. Over the course of the following 19 months,
the Agency submitted six official letters (May 20, 2004; July 12, 2004;
September 2, 2004; December 17, 2004; February 3, 2005; and March 4,
2005) to DOE requesting additional information regarding the CRA. The
Department responded with a series of 11 letters (July 15, 2004; August
16, 2004; September 7, 2004; September 29, 2004; October 20, 2004;
November 1, 2004; December 17, 2004; January 19, 2005; March 21, 2005;
May 11, 2005; and September 20, 2005) submitting all of the requested
supplemental information to EPA. On September 29, 2005, EPA announced
that DOE's recertification application was complete (70 FR 61107-
61111).
    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. All requests for additional technical information and
the DOE responses are located in EPA's Air Docket A-98-49, Categories
II-B2 and II-B3. Though 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 EPA's Air Docket A-
98-49 (FMDS Docket ID No. EPA-HQ-OAR-2004-0025). 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. (Most of these documents can also be found on EPA's
WIPP Web site at http://www.epa.gov/radiation/wipp).

    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 original certification decision as
identified by DOE, in order to ensure that the effects of the changes
have been addressed. As with its original certification 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, 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.

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 Chapter 1 of the CRA, DOE identified changes to the disposal
system since the 1998 certification decision. DOE correctly reviewed
changes that were approved by EPA between the 1998 certification
decision and the submission of the CRA. Changes included facility
design changes such as the early closure of Panel 1, moving the
repository horizon up 2.4 meters to clay seam G, and reducing the
amount of magnesium oxide (MgO). EPA's evaluation and approval of these
changes can be obtained from Air Docket A-98-49, Category II-B3.
    The CRA also identified several changes to technical information
relevant to Sec. Sec.  194.14 and 194.15. The technical changes
initiated by DOE or directed by EPA include: increased drilling rate,
updated understanding of Culebra transmissivity and new transmissivity
field calculations, new monitoring data including Culebra water levels,
modified gas generation rate, updated actinide solubility and actinide
solubility uncertainty values, and an increase in the uranium (+VI)
solubility. Items related to the waste inventory were also updated:
inclusion of supercompacted waste from Idaho National Laboratory (INL),
new estimate of radionuclides, and DOE's use of pipe overpacks and ten-
drum overpacks storage containers.
    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. EPA's Compliance Application
Review Documents (CARDs) and Technical Support Documents (TSDs)
thoroughly document EPA's review of the changes in DOE's compliance
application. Today's notice summarizes the most important of these
changes.
    Culebra Dolomite: The Culebra Dolomite is considered by DOE to be
the prime pathway for long-term radionuclide transport in ground water.
As part of the required monitoring program, DOE has identified that the
water levels in the Culebra have continued to fluctuate and generally
increase, for unknown reasons. DOE hypothesizes that human influences,
such as potash mining and petroleum production, may be responsible. DOE
concluded that these human influences would be short-lived compared to
the 10,000-year regulatory time period, and that effects on water
levels are captured in the current performance assessment (PA). The CRA
used water levels that were measured in 2000. These showed a change in
water levels across the site since the CCA. The hydraulic gradient, or
driving force across the site, is less

for the CRA than the CCA, increasing estimated radionuclide travel
times.
    DOE used the Culebra hydrologic data in combination with new
geologic information and new modeling software to develop
transmissivity fields for the PA modeling. The approach DOE used was
based on generally accepted approaches, which EPA considers as
adequate. The new CRA geologic information provides better
understanding of broad transmissivity changes than in the CCA, but it
still lacks prediction power for transmissivity at specific points.
EPA's review is discussed more thoroughly in the Performance Assessment
Baseline Calculation (PABC) Technical Support Document (TSD) (Air
Docket A-98-49, Item II-B1-16).
    Chemistry changes: During the completeness review, EPA reviewed PA
issues related to chemistry and identified several areas where DOE
needed to further update or correct information. First, EPA required
DOE to change the solubility of uranium (+VI) to a fixed value of
1x10-3 M based on experimental data that has become
available since the CCA. Second, EPA required DOE to update the
actinide solubility uncertainty range based on the fracture matrix
transport (FMT) database and currently available experimental
solubility data. Third, EPA required DOE to assume that microbial
degradation would occur in 100% of the vectors because of new data on
microbial survival in extreme environments. Prior to the PABC, DOE
requested to update the gas generation rates used in PA calculations
with results from the gas generation experiments which indicated a two-
stage rate that was faster initially, but slower after several years.
EPA agreed to the change based on new experimental data, which is
discussed and documented in its TSDs (Air Docket A-98-49, Items II-B1-3
and II-B1-16).
    Inventory changes: DOE updated the CCA inventory with data calls to
the waste generator sites, in a process similar to the one used for the
CCA. The waste inventory numbers have changed since the CCA because the
waste generator sites have an improved understanding of the waste that
is in storage. As DOE characterizes more waste, EPA expects the
estimates to continue to change. EPA reviewed the information in the
inventory, conducted several waste generator site visits, conducted
corroborating decay calculations and determined that DOE's process is
adequate. DOE's supplemental waste inventory documentation provided
this information (Air Docket A-98-49, Category II-B2; see also CRA CARD
24).
    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 the technical changes identified by DOE and EPA, the
Agency received comments regarding the geology surrounding the WIPP
site. Some stakeholders commented that the recertification application
does not properly characterize the shallow geology around WIPP. The
stakeholders believe 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 soluble
rock dissolves. Karst may form when rainwater reacts with carbon
dioxide from the air, forms carbonic acid, and seeps through the soil
into the subsurface rock. Soluble rock includes limestone and evaporite
rocks, such as halite (salt) and gypsum. If substantial and abundant
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 to understand the issue of karst around the WIPP site. As a
result of that review, EPA 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). One of the issues in this
lawsuit was EPA's conclusions regarding karst at the WIPP site. The
petitioners argued that EPA denied and ignored evidence of karst
features at WIPP, and failed to address public comments regarding
karst. 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 likely impact the containment
capabilities of the WIPP.
    In comments to EPA on the CRA, some stakeholders continue 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 agreed to evaluate any new information
on the potential of karst at WIPP and the possible impacts of the long-
term containment of waste for WIPP recertification.
    For recertification, EPA conducted a thorough review of the
geologic and hydrologic information related to karst. Most of the
information was reviewed prior to the 1998 certification decision. In
addition, DOE had collected and analyzed additional data since the
submission of the CCA. Certain stakeholders also identified additional
documentation (e.g., the ``Hill report''--Air Docket A-98-49, Item II-
B3-95) that they wanted EPA to review and consider.
    As part of this effort, EPA made a site visit to re-examine the
evidence of karst around the WIPP site. During the site visit, EPA
searched for karst indicators such as sinkholes, evidence of large-
scale water exchange underground, or springs in the vicinity of WIPP.
EPA found no evidence of these features at the WIPP site.
    EPA 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). Our review again concludes as follows:
The WIPP site does not exhibit evidence of karst; it is highly unlikely
that reactive water could reach and dissolve the Rustler dolomites; and
the hydrologic regime at WIPP is adequately modeled without modeling
karst features. EPA is convinced that its 1998 conclusion is still
valid after this CRA review.
    The Agency also requested that DOE/SNL conduct a separate analysis
of the potential for karst and address some general and specific issues
raised by stakeholders. The major issues reviewed in the SNL report
were: Insoluble residues, negative gravity anomalies, specific well
results, water in the exhaust shaft, and recharge and discharge issues.
DOE's report reaffirmed the previous analysis demonstrating that
pervasive karst processes have been active outside the WIPP site but
not directly at WIPP. Additional information on this topic is also
found in EPA's CRA Compliance Application Review Document (CARD) 15.
(CARDs contain the detailed technical rationale for EPA's
recertification decision and are found in Air Docket A-98-49, Item V-
B2-1).

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 recertification application. The
new PA incorporated changes to a few conceptual models and some
parameter values. DOE made modifications to the PA computer codes and
parameter values after the original CCA. EPA monitored and reviewed
these changes, as summarized below.
    DOE modified four conceptual models after the original CCA:
Disposal System Geometry, Repository Fluid Flow, Disturbed Rock Zone,
and the Spallings conceptual model. The first three conceptual models
were changed to incorporate the EPA mandated Option D panel closure
system (CCA Condition 1). The new Spallings conceptual model was
developed to account for certain deficiencies identified by the CCA
peer review panel.
    DOE updated its analysis of features, events and processes (FEPs)
that could impact WIPP. This update of FEPs did not result in any
changes to the scenarios used in the CRA PA. The CRA PA 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 the 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.
    For the CRA PA, DOE changed, updated, or corrected several
parameter values that were used in the CCA PA (see CRA CARD 23 for
details). Some of the changed parameters included: Waste inventory
estimates, chemistry related parameters, actinide solubility values,
disturbed rock zone values, retardation coefficient values, and
drilling rate.
    During EPA's review of the CRA PA, both EPA and DOE independently
identified several technical changes and corrections that were
necessary. These changes included using more complete and up-to-date
waste inventory projections and correcting the implementation of
calculational requirements that ensure appropriate statistical
confidence in the PA results. In a March 2005 letter to DOE, EPA
informed DOE that a new PA was required to demonstrate continued
compliance for recertification (Air Docket A-98-49, Item II-B3-80). In
the letter, EPA notified DOE that the new PA must be comprised of three
full replicates (i.e., 300 iterations of the models) according to the
requirements of Sec.  194.34(f). EPA also provided direction for
changes and updates to other aspects of the PA, such as: Uranium (+VI)
solubility, solubility uncertainty ranges, actinide solubilities, the
probability of microbial degradation, revised gas generation rates,
modification of the methanogenesis assumption, inclusion of waste
packaging materials in the calculation of amounts cellulosic, plastic,
and rubber materials, and corrections to the Culebra transmissivity
fields.
    In response to EPA's direction to conduct a new performance
assessment for recertification, DOE produced the Performance Assessment
Baseline Calculations (PABC). The Agency's review of the PABC 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. Although the results of the PABC indicate more
potential releases from a human intrusion event, the releases remain
well within the limits established by 40 CFR Part 191. EPA considers
the PABC to be a sufficiently conservative and current representation
of the knowledge of the WIPP and how it will interact with the
surrounding environment. EPA also finds that DOE is in continued
compliance with our 40 CFR 194.23 and 194.31 through 194.34
requirements. EPA found that 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 CRA PA and PABC properly
(Sec.  194.34). EPA analysis of compliance with the performance
assessment related requirements of 40 CFR 194 may be found in its
aforementioned TSD (Air Docket A-98-49, Item II-B1-16). Additional
information on these issues can also be found in CRA CARDs 23 and 31-
34.
    EPA received public comments related to the CRA performance
assessment. Commenters questioned the appropriateness of the drilling
rate used in the PA, which is described below. They also raised
concerns about the accuracy of WIPP waste inventory

parameters, which is discussed further in Section VI.B.4 of this
document.
    Public comments expressed concern that the drilling rate was
underestimated in the CRA's performance assessment calculations given
the amount of drilling that is currently taking place throughout the
Delaware Basin. Commenters suggested that the drilling rate be doubled
to demonstrate compliance. Although EPA determined that DOE
appropriately calculated and implemented a drilling rate of 52.2
boreholes/km2/year in compliance with Sec.  194.33(b) for
recertification, EPA requested that DOE evaluate the impacts of
doubling the current drilling rate to respond to public concerns.
    DOE performed the calculations for this analysis by assuming the
drilling rate was increased to 105 boreholes per square kilometer per
year for 10,000 years. The results of computer modeling showed that
doubling the drilling rate would increase releases from the repository.
However, this increase was relatively small and still well below EPA's
regulatory release limits. (See CRA CARD 23)
    DOE monitors natural resource related issues in the Delaware Basin
annually. Through this monitoring, DOE identified that the drilling
rate in the surrounding area increased from 46.8 to 52.2 boreholes per
km2 per 10,000 years since the original certification. EPA
reviewed the documentation provided by DOE and has conducted annual
inspections of DOE's information collection process and determined that
DOE has done due diligence in keeping abreast of all drilling
information. DOE also identified that the fluid injection rate per well
is the same as that used for the original CCA. EPA finds that DOE
adequately characterized drilling related issues.

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. For more information on activities related to
Sec.  194.8, please refer to 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. Additional information on EPA's 194.21
inspection activities can be found in CRA CARD 21.
3. Quality Assurance (Sec.  194.22)
    Section 194.22 establishes 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. In the CRA,
DOE extensively revised Chapter 5, Quality Assurance, to better match
the structure of the NQA standards and to update information since the
CCA.
    EPA determined that the CRA provides adequate information to
demonstrate the establishment of each of the applicable elements of the
NQA standards. EPA also verified the continued proper implementation of
the NQA Program during its CRA review and during previous audits
conducted in accordance with Sec.  194.22(e).
    EPA's determination of compliance with Sec.  194.22 can be found in
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. In order to
compile the waste inventory for recertification, DOE required data
reporting and collection from the waste generator sites. Based on the
WIPP LWA's timeline for recertification, DOE's cut-off date for
including waste in the WIPP recertification inventory was September 30,
2002.
    Descriptions of the chemical, radiological, and physical components
of the waste were thoroughly documented in the CRA and supporting
documents. This information was collected using similar methods as
during the 1998 certification decision. DOE classified the wastes as
emplaced, stored or projected (to-be-generated). DOE used the data from
the WIPP Waste Information System (WWIS) to identify the
characteristics of the waste that has been emplaced at WIPP since 1999.
DOE listed the projected wastes in waste profile tables in the CRA
(Appendix DATA, Attachment F). The projected wastes were categorized
similarly to existing waste (e.g., heterogeneous debris, filter
material, soil).
    Although DOE's recertification waste inventory was largely the same
as the inventory evaluated for the 1998 certification decision, there
were some changes. As of September 30, 2002, 7.7 x 103
m3 of contact-handled (CH) waste had been emplaced at WIPP.
This volume was used in the PABC. DOE estimated the combination of
emplaced, stored, and projected waste to be 145,000 m3
versus the 112,000 m3 estimated for the CCA. Although EPA
approved DOE's general framework for the characterization of remote-
handled (RH) waste on March 26, 2004 (Air Docket A-98-49, Item II-B2-
21), RH has not yet been approved for disposal at WIPP. (The current
projected volume of remote-handled waste at WIPP is greater than the
7,080 m3 in the consent agreement with the State of New
Mexico.) Despite the changes in the volume of CH and RH waste, the
total number of curies projected for a full repository was reduced from
3.44 million curies in the CCA to 2.32 million curies in the CRA.
    Some commenters noted that the recertification waste inventory
clearly contains amounts of CH and RH waste that exceed the WIPP
capacity. The Agency agrees that the inventory of RH does exceed the
capacity of WIPP as it did in the CCA inventory; however, EPA does not
consider this a problem in demonstrating compliance with the disposal
regulations. EPA recognizes that the WIPP waste inventory is a dynamic
projection of the waste that may or may not be disposed of at WIPP. The
Agency's acceptance of a waste inventory is not an authorization to
dispose of a particular waste at WIPP. Before any waste is disposed at
WIPP, EPA seeks to ensure that the waste meets the waste acceptance
criteria for WIPP and that DOE can characterize and track the waste. To
demonstrate continuing compliance, the performance assessment reflects
a repository that meets the capacity requirements for CH and RH wastes,
as limited by the LWA and the consent agreement with the State of New
Mexico.

    During EPA's evaluation of the completeness of the CRA, EPA
identified updates and additional information needs for the waste
chemistry and waste inventory. For waste chemistry, EPA evaluated
issues such as: The modified gas generation rate, actinide solubility
and associated uncertainty values, and uranium (+VI) solubility. For
more information on EPA's review of the waste chemistry, please refer
to CRA CARDs 15, 23 and 24 and applicable TSDs (Air Docket A-98-49,
Category II-B1).
    As previously mentioned, EPA directed DOE to conduct a new
performance assessment for recertification in March 2005 (Air Docket A-
98-49, Item II-B3-80)--the PABC. For the PABC, EPA required DOE to
update information on the waste inventory. In the PABC, DOE modified
the CRA inventory to correct errors identified in the inventory,
including modifying a CH waste stream from LANL that had RH
characteristics, and correcting the amounts of a Hanford waste stream.
DOE also included buried waste from INL.
    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 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 CRA CARD 8.
    Public comments identified some wastes in the WIPP recertification
inventory from the Hanford site in Washington State as high-level waste
(HLW) and spent nuclear fuel (SNF), which are prohibited by the LWA
from disposal at WIPP. The public commented that these wastes are not
transuranic and should not be allowed in the WIPP waste inventory.
According to public comments, EPA should not recertify WIPP or should
exclude these wastes from the WIPP waste inventory. In a December 2005
letter to DOE, EPA requested additional information from DOE on the
basis for considering these wastes as TRU waste instead of high-level
waste.
    DOE provided additional information on the Hanford Tank wastes that
indicate that the Hanford Tank wastes will be treated and will
eventually be able to meet the WIPP waste acceptance criteria (Air
Docket A-98-49, Items II-B2-47 and II-B2-50). DOE stated that the tank
wastes that may eventually be disposed of at WIPP are TRU waste or
would be TRU waste. DOE also stated that the tank wastes have not been
designated as HLW but have been managed as HLW, in accordance with
their radioactive waste management procedures. DOE has committed to
removing these wastes from the tanks and treating them, if needed, to
meet the WIPP waste acceptance criteria. DOE also stated that the HLW
fission products, precipitated salts and other solids will be removed,
to the extent practicable, from the Hanford K-basin sludges. DOE stated
that this waste would then be RH TRU waste and would meet the WIPP
waste acceptance criteria.
    DOE has provided information stating that the waste in question
will be processed so that high-level waste will be removed, to the
extent practical, in its preparation to meet the WIPP waste acceptance
criteria. DOE may be able to show that this waste will have a TRU
designation in the future. Thus, EPA allowed these wastes to be
included in the performance assessment inventory for recertification.
By doing so, DOE is demonstrating that with or without the Hanford Tank
wastes, WIPP continues to comply with EPA's disposal regulations. The
Agency believes that this is a conservative approach to the performance
assessment of the WIPP repository because a broad inventory of waste is
being considered. Inclusion in the performance assessment of the
facility does not imply or otherwise provide for EPA's approval of such
waste for disposal at WIPP.
    EPA will not allow high-level waste or spent nuclear fuel 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 they are allowed to ship
waste to WIPP.
    Public commenters stated that EPA must conduct a rulemaking
regarding how the Agency will make determinations about what waste is
high-level waste. EPA does not make waste determinations. DOE is
responsible for making waste determinations, classifications, or
reclassifications. In recognition of the public's concern about the
possible future designation of the Hanford Tank wastes as TRU waste,
DOE has proposed a process for developing or changing determinations
for wastes such as the Hanford Tank wastes. In a February 2006 letter
to EPA, DOE proposed a process (Air Docket A-98-49, Item II-B2-57) for
the evaluation of tank waste that includes multiple opportunities for
public input prior to the request to EPA for disposal at WIPP. The
Agency considers it appropriate for DOE to conduct a public process
that will determine the designation or classification of waste prior to
requesting EPA's approval for disposal at WIPP.
    The Agency currently has a process in place to ensure that waste
disposed of at WIPP is TRU waste, as outlined in the requirements
listed at 40 CFR 194.8, 194.22, and 194.24. The first step in this
process is DOE's official request to dispose of TRU waste at WIPP from
one of the waste generator sites. Once EPA receives all required
information and documentation, the Agency then inspects waste
characterization activities at a waste generator site to ensure that
the site has the technical ability to adequately characterize and track
TRU waste. Confirmation of waste designation is then completed through
the waste characterization process at the site. EPA believes that it
currently has an adequate process in place for evaluating any DOE
requests for approval of waste for disposal at WIPP. The Agency does
not believe that it is necessary to conduct a rulemaking for certain
waste streams.
    Waste that is not designated as TRU waste will not be considered
for disposal at WIPP by EPA. The Agency agrees with commenters that the
LWA does not provide for waste determinations to be made during
recertification. Prior to disposal at WIPP, EPA will ensure that all
wastes meet the legal and technical requirements for disposal. It is
important to remember that just because waste is included in the WIPP
waste inventory, it does not mean that DOE will necessarily seek to
ship it to WIPP or that EPA will approve it for disposal at WIPP.
Before any waste is approved to be shipped or disposed of at WIPP, EPA
ensures that the waste meets the waste acceptance criteria for WIPP and
that DOE can characterize and track the

waste. For more information on tank wastes and 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.
    For the CRA, DOE updated its assessment of the features, events and
processes (FEPs) and subsequent scenarios that are used in performance
and compliance assessments. As a result of this assessment, DOE
eliminated sixteen FEPs using the Future State assumption (40 CFR
194.25 (a)), which assumes that these activities will not change in the
future.
    EPA assessed whether all FEPs and appropriate future state
assumptions were identified and developed by DOE. EPA evaluated DOE's
criteria to eliminate (screen out) inapplicable or irrelevant FEPs and
associated assumptions. EPA also analyzed whether there were potential
variations in DOE's assumed characteristics and determined whether the
future state assumptions were in compliance with Sec.  194.25(a).
    EPA concludes that DOE adequately addressed the impacts of
potential hydrogeologic, geologic and climate changes to the disposal
system. The 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 CRA CARDs 25 and 32,
and the corresponding TSD for FEPs (Air Docket A-98-49, Item II-B1-11).
6. Expert Judgement (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. The 2004 CRA did not
identify any expert judgement 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 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 CCA and CRA: the Salado Flow
Conceptual Model Peer Review in March 2003 (see CRA Chapter 9, Section
<IP_ADDRESS>.4) and the Spalling Model Peer Review in September 2003 (see
CRA Chapter 9, Section <IP_ADDRESS>.5). EPA reviewed each of the conceptual
model peer reviews as they were performed and all documents related to
each peer review. EPA's review 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 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).
    The CRA did not reflect any significant changes to demonstrating
compliance with the assurance requirements. DOE appropriately updated
the information for the assurance requirements in Chapter 7 of the CRA
and accurately reflected EPA decisions since the 1998 certification
decision, such as reduction in the safety factor for the magnesium
oxide engineered barrier (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 ground-
water 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 ground water 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 191 requirements at WIPP. Section 194.51 states
that the protected individual must be located at the location 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 2 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 in 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 CRA, DOE reevaluated each of the individual and ground water
requirements. DOE updated parameters related to the individual and
groundwater requirements for the undisturbed scenario, for example,
changes in population and water use (water use increased from 282
gallons per person per day in the CCA to 305 in the CRA). In addition
to updating information for the compliance assessment, as a result of
water wells that have been drilled since the original CCA, DOE was able
to confirm original water source assumptions (CRA Chapter 8.2). DOE did
not conduct new detailed bounding dose calculations for the CRA because
the releases predicted by the CRA performance assessment for the
undisturbed scenario were lower than those used in the original CCA
(CRA Chapter 8.0).
    EPA reviewed DOE's 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). EPA agrees with DOE's
conclusion that the CRA PA results are lower than the original CCA and
that the recalculation of doses was not necessary for the CRA (CRA
Chapter <IP_ADDRESS>). Because DOE was required to correct, update, and
rerun the CRA PA, called the PABC, EPA reevaluated the impact of these
new results on compliance with 40 CFR 194.51 to 40 CFR 194.55. EPA
found the results of the PABC to be much like the CRA PA results--
showing fewer releases for the undisturbed scenario than the original
CCA. EPA finds DOE in continued compliance with 40 CFR 194.51-194.55
requirements.

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 WIPP-NEWS e-mail
messages. In addition, EPA has published periodic WIPP Bulletins and
kept the WIPP Information line up-to-date.
    Throughout the recertification process, the Agency posted any new
information or updates on its Web page. 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) from the EPA Web site at
http://www.epa.gov/radiation/wipp.

    Since February 2004, EPA has sent out numerous announcements
regarding the recertification schedule, availability of documents on
the EPA WIPP Web site, and upcoming inspections at waste generator
sites, as well as details for the Agency's July 2004 and June 2005
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 both July 2004 and
June 2005 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 from July 26-29, 2004, in Carlsbad,
Albuquerque, and Santa Fe, New Mexico. 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 its
opening. The meetings featured presentations and poster sessions on
specific WIPP technical issues and facilitated discussions. In response
to stakeholder suggestions, DOE staff was 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 session was held on June 7, 2005, in Albuquerque,
New Mexico. The main purpose of this meeting was to update the public
on EPA's recertification schedule and provide more in-depth, technical
information related to stakeholder questions and comments raised at the
first series of meetings.
    Summaries of EPA's stakeholder meetings are posted on the EPA Web
site and in the dockets. Many of the issues raised by the public are
identified in the meeting summaries and 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 announced receipt of the
recertification application in the Federal Register on May 24, 2004.
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 560
days after it opened, on December 5, 2005. This was 45 days after EPA's
announcement in the Federal Register that the recertification
application was complete.
    EPA received four 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.
    In addition to comments on specific sections of 40 CFR Part 194,
EPA received comments on general issues. Some people commented on the
content of the CRA throughout the recertification process. With EPA
submitting numerous requests for additional information to DOE,
commenters believed that the CRA was ``grossly flawed and incomplete,''
and thus, there was not adequate information for the public to review
for comment in the allotted timeframe. Certain commenters also
suggested that EPA and DOE should discuss the initial recertification
process to ensure that the next application would be more timely and
adequate.
    EPA provided guidance to DOE on its expectations for the first
recertification application (see correspondence in Air Docket A-98-49,
Category II-B3). Upon submission of the CRA by DOE, the Agency found it
necessary to request a considerable amount of supplemental information.
Following receipt of the additional information, EPA promptly made the
completeness determination.

Once the recertification application was deemed complete, EPA conducted
its technical evaluation and issued the recertification decision within
the six-month timeframe specified by the WIPP LWA.
    EPA believes that future recertification processes should not be as
lengthy. The Agency intends to meet with DOE 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 original 1998
certification decision, summarizes changes in the CRA, and describes
EPA's compliance review and decision--most notably, any changes that
have occurred since the original certification. 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 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. These are found in Air Docket A-98-49, Category
II-B1.

B. WIPP Web Site, Listserv, Information Line, and Mailing List

    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 service, which automatically e-mails 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.

Interested citizens may also contact EPA's toll-free WIPP Information
Line at 1-800-331-WIPP. The information line offers a recorded message
regarding current EPA WIPP activities, upcoming meetings, and
publications. Callers are also offered the option of joining EPA's WIPP
mailing list. Periodic mailings, including a WIPP Bulletin and fact
sheets related to specific EPA activities, are sent to members of the
mailing list (currently over 2,000 members).

C. Dockets

    In accordance with 40 CFR 194.67, EPA maintains public dockets
(FDMS Docket ID No. EPA-HQ-OAR-2004-0025 and 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. EPA placed copies of the CRA in Category II-B2 of
Air Docket A-98-49. The Agency placed supplementary information
received from DOE in response to EPA requests in Category II-B2.
    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 in hard-copy form primarily in the following categories of
Docket A-98-49: Category II-B1 (technical support documents, reports,
etc.), Category II-B2 (DOE submissions and responses to EPA requests),
Category II-B3 (EPA correspondence to DOE, public comments) and
Category II-B4 (final recertification Federal Register notice, CARDs).
Interested parties may also search online in FDMS Docket ID No. EPA-HQ-
OAR-2004-0025 for any of these documents by title or key word(s). 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 its first
recertification decision. The Agency's future WIPP activities will
include additional recertifications every five years, 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 by DOE on
conditions and activities at the WIPP.
    Future recertification processes will be similar to the process
completed by EPA for this first 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: March 29, 2006.
Elizabeth Cotsworth,
Director, Office of Radiation and Indoor Air.
[FR Doc. 06-3404 Filed 4-7-06; 8:45 am]

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