Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant's Compliance With the Disposal Regulations; Panel Closure Redesign, 60750-60756 [2014-24025]
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Federal Register / Vol. 79, No. 195 / Wednesday, October 8, 2014 / Rules and Regulations
various levels of government or between
the Federal Government and Indian
tribes. Thus, the Agency has determined
that Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999) and Executive Order 13175,
entitled ‘‘Consultation and Coordination
with Indian Tribal Governments’’ (65 FR
67249, November 9, 2000) do not apply
to this final rule. In addition, this final
rule does not impose any enforceable
duty or contain any unfunded mandate
as described under Title II of the
Unfunded Mandates Reform Act of 1995
(UMRA) (2 U.S.C. 1501 et seq.).
This action does not involve any
technical standards that would require
Agency consideration of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(NTTAA) (15 U.S.C. 272 note).
V. Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: August 29, 2014.
Marty Monell,
Acting Director, Office of Pesticide Programs.
Therefore, 40 CFR chapter I is
amended as follows:
PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:
■
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Add § 180.1326 to subpart D to read
as follows:
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■
§ 180.1326 Pseudomonas fluorescens
strain D7; exemption from the requirement
of a tolerance.
An exemption from the requirement
of a tolerance is established for residues
of Pseudomonas fluorescens strain D7
in or on all food commodities when
used in accordance with label directions
and good agricultural practices.
[FR Doc. 2014–24028 Filed 10–7–14; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 194
[EPA–HQ–OAR–2013–0684; FRL–9917–57–
OAR]
RIN 2060–AR60
Criteria for the Certification and
Recertification of the Waste Isolation
Pilot Plant’s Compliance With the
Disposal Regulations; Panel Closure
Redesign
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
With this document, the U.S.
Environmental Protection Agency (EPA,
or the Agency) approves the U.S.
Department of Energy’s (DOE, or the
Department) planned change request to
implement the Run-of-Mine Panel
Closure System (ROMPCS) at the Waste
Isolation Pilot Plant (WIPP) and amends
the WIPP Compliance Criteria to allow
an EPA-approved panel closure other
than the currently-required Option D
design. Technical analyses demonstrate
that, with the modified panel closure
design, WIPP remains in compliance
with the 10,000 year release limits set
by the ‘‘Environmental Standards for the
Management and Disposal of Spent
Nuclear Fuel, High-Level and
Transuranic (TRU) Radioactive Waste.’’
The changes do not lessen the
requirements for complying with the
Compliance Criteria, nor do these
changes impact the technical approach
that the EPA will employ when
considering any future planned changes
to the panel closure system. Compliance
with environmental or public health
regulations other than the EPA’s longterm radioactive waste disposal
regulations and WIPP Compliance
Criteria is not addressed by today’s
action.
DATES: Effective October 8, 2014.
ADDRESSES: Docket: All documents in
the docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. The EPA has established a docket
for this action under Docket ID No.
[EPA–HQ–OAR–2013–0684; FRL–9917–
57–OAR]. Publicly available docket
materials related to this action (e.g., the
Technical Support document [TSD]) are
available either electronically through
www.regulations.gov, on the Agency’s
SUMMARY:
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WIPP Web site (https://www.epa.gov/
radiation/wipp) or in hard copy at the
Air and Radiation Docket in the EPA
Docket Center, (EPA/DC) EPA West,
Room 3334, 1301 Constitution Ave.
NW., Washington, DC 20004. 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 (202) 566–1744
and the telephone number for the Air
and Radiation Docket is (202) 566–1742.
In accordance with the 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.
FOR FURTHER INFORMATION CONTACT: Ray
Lee or Jonathan Walsh, Radiation
Protection Division, Mail Code 6608J,
U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue,
Washington, DC, 20460; telephone
number: 202–343–9463 or 202–343–
9238; fax number: 202–343–2305; email
address: lee.raymond@epa.gov or
walsh.jonathan@epa.gov.
SUPPLEMENTARY INFORMATION:
Preamble Acronyms and Abbreviations
Several acronyms and terms used to
describe components of the WIPP
disposal system and performance
assessment computer models are
included in this preamble. To ease the
reading of this preamble and for
reference purposes, the following terms
are defined here:
BRAGFLO Computer model used to
simulate brine and gas flow
CBFO Carlsbad Field Office
CCA Compliance Certification Application
CCDF Complementary Cumulative
Distribution Function
CFR Code of Federal Regulations
DBR Direct Brine Release
DOE U.S. Department of Energy
DRZ Disturbed Rock Zone
EPA U.S. Environmental Protection Agency
FEPs Features, Events and Processes
LWA Land Withdrawal Act
MSHA Mine Safety and Health
Administration
NMED New Mexico Environment
Department
OPC Ordinary Portland Cement
PA Performance Assessment
PABC Performance Assessment Baseline
Calculation
PAVT Performance Assessment Verification
Test
PCS Panel Closure System
PCS–2012 Panel Closure System 2012
Performance Assessment
PCR Planned Change Request
PC3R Panel Closure Redesign and
Repository Reconfiguration Performance
Assessment
PMR Permit Modification Request
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RCRA Resource Conservation and Recovery
Act
ROM Run-of-Mine
ROMPC, or ROMPCS Run-of-Mine Salt
Panel Closure System
SMC Salado Mass Concrete
SNL Sandia National Laboratories
TRU Transuranic
TSD Technical Support Document
VOC Volatile Organic Compound
WIPP Waste Isolation Pilot Plant
Table of Contents
I. What is the WIPP?
II. What did the EPA propose?
A. Approving the ROMPCS
B. Modifying Condition 1
III. How did the EPA incorporate public
comments in the final rule?
IV. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Executive Order 12898
F. National Technology Transfer &
Advancement Act of 1995
G. Executive Order 13045: Children’s
Health Protection
H. Executive Order 13132: Federalism
I. Executive Order 13175: Consultation and
Coordination With Indian Tribal
Governments
J. Executive Order 13211: Energy Effects
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I. What is the WIPP?
The WIPP is a disposal system for
defense-related transuranic (TRU)
radioactive waste. Developed by the
DOE, the WIPP is located near Carlsbad
in southeastern New Mexico. At the
WIPP, radioactive waste is disposed of
2,150 feet underground in an ancient
formation of salt which will eventually
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‘‘creep’’ and encapsulate the waste. The
WIPP has a total capacity of 6.2 million
cubic feet of waste.
Congress authorized the development
and construction of the 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 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 nanocuries per gram of waste.2 Most TRU
waste disposed 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, soil and organic or
inorganic sludges. Some TRU waste is
mixed with hazardous chemicals. The
waste to be disposed at the WIPP is
1 Department of Energy National Security and
Military Applications of Nuclear Energy
Authorization Act of 1980, Public Law 96–164,
section 213.
2 WIPP Land Withdrawal Act, Public Law 102–
579, section 2(18), as amended by the 1996 WIPP
LWA Amendments, Public Law 104–201.
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currently located at federal facilities
across the United States, including
locations in California, Idaho, Illinois,
New Mexico, Nevada, Ohio, South
Carolina, Tennessee and Washington.
The WIPP Land Withdrawal Act
(LWA), initially passed by Congress in
1992 and amended in 1996, provides
the EPA authority to oversee and
regulate the WIPP for compliance with
EPA’s long-term radioactive waste
disposal regulations. In 1996, the
Agency issued the WIPP Compliance
Criteria, which are found at 40 CFR part
194.3 After reviewing DOE’s
Compliance Certification Application
(CCA), the Agency issued its
certification decision on May 18, 1998,
as required by Section 8 of the WIPP
LWA (63 FR 27354–27406), determining
that the WIPP met the standards for
radioactive waste disposal. The
complete record and basis for the EPA’s
1998 certification decision can be found
in Air Docket A–93–02.
EPA’s certification of WIPP’s
performance was based upon the
repository design the Department
submitted in Chapter 3 of the CCA. The
underground waste disposal region at
WIPP is divided into panels. A panel is
a group of rooms mined into the salt,
connected by tunnels called drifts.
When all of the rooms of a panel are
filled with waste, the DOE intends to
seal the drifts with engineered
structures called panel closures.
3 61
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FR 5224–5245 (February 9, 1996).
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In the CCA, the Department presented
four options for the design of the panel
closure system, but did not specify
which would be constructed at the
WIPP facility. The Agency based its
certification decision on the DOE’s use
of the most robust design, referred to in
the CCA as ‘‘Option D’’. Condition 1,
requiring DOE to Implement the Option
D panel closure system, was appended
to 40 CFR part 194 as part of the
certification decision. (63 FR 27354,
May 18, 1998) The Option D design
called for the drift to be sealed using a
concrete block wall and a poured
concrete monolith.
The Department submitted a PCR to
the EPA on September 28, 2011,
proposing to alter the panel closure
design. Citing experience and data
gained since the CCA, the DOE’s PCR
states that the Option D panel closure
would be extremely difficult and costly
to install, and that the highly engineered
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design is unnecessary for either worker
safety or environmental protection
during the operational period. The DOE
instead proposed a new panel closure
design, the Run-of-Mine Salt Panel
Closure System (ROMPCS), which
consists of mined salt emplaced
between steel bulkheads.
II. What did EPA propose?
The EPA completed a technical
review of the DOE’s PCR and supporting
documentation. The goal of the
Agency’s technical review process was
to determine whether, with the new
design, the WIPP adequately
demonstrates compliance with the
requirements of 40 CFR part 194 and the
release limits of 40 CFR part 191,
Subparts B and C. This process is fully
documented in the TSD, ‘‘Review of the
DOE’s Planned Change Request to
Modify the WIPP Panel Closure
System,’’ (EPA–HQ–OAR–2013–0684–
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0002) and discussed in the notice of
proposed rulemaking (78 FR 72612, Dec.
3, 2013). The Agency concluded that the
WIPP will remain in compliance with
its release limits with the ROMPCS
design. The Agency therefore proposed
to approve the DOE’s PCR to implement
the redesigned panel closure at the
WIPP, and to modify 40 CFR part 194
Appendix A, Condition 1 to allow panel
closure designs other than Option D, as
long as DOE has demonstrated WIPP’s
continued compliance with the longterm release standards.
A. Approving the ROMPCS
The EPA’s Compliance Criteria at 40
CFR part 194 does not require a panel
closure for the purpose of long-term
compliance with release limits for
radionuclides. The purpose of 40 CFR
part 194 is to demonstrate compliance
with the disposal regulations at 40 CFR
part 191 for containment of
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Federal Register / Vol. 79, No. 195 / Wednesday, October 8, 2014 / Rules and Regulations
radionuclides, which specify that longterm releases of radionuclides to the
accessible environment must be
unlikely to exceed specific release limits
for 10,000 years after disposal, based on
the amount of waste in the repository at
the time of closure (§ 194.31).
Assessment of the likelihood that the
WIPP will not exceed release limits is
accomplished through a process called
performance assessment, or PA. The
WIPP PA process culminates in a series
of computer simulations that model the
physical attributes of the disposal
system (e.g., site characteristics, waste
forms and quantities, engineered
features) in a manner that captures the
behaviors and interactions among its
various components. The results of the
PA indicate the probability of exceeding
various levels of normalized releases
(§ 194.34). Because the Agency based its
certification of the WIPP’s compliance
with the disposal regulations on the
accurate representation of the repository
in performance assessment, including a
panel closure, Condition 1 was
appended to 40 CFR part 194 during the
certification of the WIPP. No other
design feature of the repository is
required by the Compliance Criteria in
a similarly explicit way.
The Option D panel closure design
consists of a 12-foot thick ‘‘explosionisolation wall’’ constructed of solid
concrete blocks filling the drift on the
waste disposal side, a short section of
open drift called an ‘‘isolation zone’’
and a monolithic concrete barrier on the
side of the open drift. Fractured rock in
the immediate vicinity of the drift—
called the disturbed rock zone, or
DRZ—would be removed, and the
resulting void space filled by the
concrete monolith. In its current PCR,
the DOE states that ‘‘large scale testing
has demonstrated that using SMC
[Salado Mass Concrete] cannot meet the
design and performance requirements
for the panel closures as specified in the
CCA.’’ Even if the Option D monolith
could be constructed as planned, the
Agency acknowledges that it would be
installed at significant cost to the
Department. Additional occupational
hazards would be incurred by moving
and pouring large amounts of concrete
in the underground and disposal
operations would be significantly
disrupted as well.
The DOE’s new panel closure design,
the ROMPCS, consists primarily of runof-mine (ROM) salt—impure halite that
has been mined in the course of normal
repository operations and not subjected
to additional processing or grading. The
ROMPCS design consists of two
standard steel ventilation bulkheads
with a minimum of 100 feet of run-of-
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mine (ROM) salt between them, filling
the drift from floor to ceiling. In Panels
1, 2 and 5, where explosion walls have
already been constructed, salt will be
placed directly against the explosion
wall and a standard steel ventilation
bulkhead placed on the outer end of the
panel closure. The DOE has stated that
the ROMPCS will provide adequate
protection during the operational
period. Upon initial emplacement, the
run-of-mine salt will exhibit the
properties of a loosely consolidated or
unconsolidated material. Over time, as
the open areas of the repository close
due to salt creep, the panel closures will
consolidate and eventually heal to a
state resembling intact salt.
As in the past, the Agency’s
consideration of the panel closure
system focused on its representation in
repository performance assessment, so
that the EPA can ultimately certify the
WIPP’s ability to meet long-term
performance standards. In support of its
panel closure PCR, the DOE initially
submitted a performance assessment
calculation called the Panel Closure
Redesign and Repository
Reconfiguration (PC3R) PA, which
incorporated multiple planned changes.
The Agency determined that to approve
the PCR, it was necessary to isolate the
impacts, if any, of the change in panel
closure design. In response, the DOE
prepared the PCS–2012 PA, with the
explicit goal of changing only those
aspects of the current baseline PA that
are directly related to the change in the
panel closure design. Thus, results of
the PCS–2012 PA may be directly
compared to results of the current
Performance Assessment Baseline
Calculation (PABC–09) to see the impact
of changes in the panel closure on
modeled releases from the facility. The
EPA undertook a review of the PCS–
2012 PA. The majority of the technical
effort expended by the Agency was
spent determining how the changes in
the panel closures should be
represented in the performance
assessment models. The entire review
process is fully documented in the
Agency’s TSD, ‘‘Review of DOE’s
Planned Change Request to Modify the
WIPP Panel Closure System.’’ (EPA–
HQ–OAR–2013–0684–0002) Based on
its review and on the results of
performance assessment, the Agency
concludes that the WIPP will continue
to comply with the EPA’s disposal
standards with the ROMPCS. Therefore,
the Agency proposed to approve the
DOE’s PCR and allow the
implementation of the ROMPCS design
at the WIPP.
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B. Modifying Condition 1
The Option D panel closure is
currently required by 40 CFR part 194,
Appendix A, Condition 1. Therefore,
accepting a redesigned panel closure
requires modification of Condition 1.
Condition 1 was appended to 40 CFR
part 194 because the DOE presented
multiple panel closure options, and the
EPA originally certified the WIPP’s
performance based on the expected
properties of the Option D panel
closure. It is the only engineered aspect
of the repository design that is explicitly
required by rule. At this time, DOE has
proposed a single panel closure that it
intends to implement in all waste
panels at WIPP. Furthermore, at the
time of the CCA, limited performance
assessment results were available to
indicate the impact of the panel closure
design on repository performance. Due
to the evolution of the WIPP PA since
the CCA, the DOE and the EPA have
gained a greater understanding of panel
closures’ influence on PA results.
Changes to the representation of the
panel closure in the performance
assessment models have resulted in
small differences in the results,
indicating that the panel closure design
does not disproportionately impact the
long-term performance of WIPP
compared to other design features of the
repository. For these reasons, the
Agency does not believe that it is
necessary or appropriate for the specific
design of the panel closure to remain as
a condition of certification. Rather,
panel closures should be treated in a
similar manner as any other engineered
feature of the repository.
This change does not grant the DOE
the ability to alter the panel closure
design at will. As with any engineered
component of the disposal system, the
Agency must be informed of any
departure from the current, approved
design as required by § 194.4(b)(3)(i).
The EPA would expect such a request
to be supported by complete technical
documentation, including any updated
information concerning ‘‘the geology,
hydrology, hydrogeology, and
geochemistry of the WIPP disposal
system’’ and ‘‘WIPP materials of
construction, standards applied to
design and construction,’’ as required by
§ 194.14, Content of certification
applications. The Agency would use
this information to determine whether
or not the WIPP remains in compliance
with the disposal standards. As with
any other planned change, based on the
potential impact to the WIPP’s
compliance, the EPA would determine
whether the change ‘‘departs
significantly from the most recent
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compliance application,’’ and must be
addressed by rule in accordance with
§ 194.65.
III. How did the EPA incorporate public
comments in the final rule?
The EPA held informal public
meetings in Carlsbad, New Mexico, on
December 5, 2012, and Santa Fe, New
Mexico, on December 6, 2012, to
provide the public with background on
the DOE’s panel closure system planned
change request, and to give the public
the opportunity to raise any technical
issues that the Agency should consider
in its decision. After publishing the
notice of proposed rulemaking, the EPA
held public meetings in Carlsbad and
Albuquerque on January 22 and 23,
2014. Summaries of these meetings have
been included in the docket.
In addition to comments delivered
verbally, the Agency received seven sets
of written comments. The majority of
these comments expressed support of
DOE’s planned change, and of EPA’s
proposed approval. No comments of a
technical nature were submitted, and
therefore no further analysis needed to
be performed in response to comments.
One set of comments raised valid
questions about further changes to the
panel closure design. In response, EPA
made a minor clarification to the rule
language.
Several commenters expressed
appreciation for the ability to voice their
comments. The EPA feels that public
participation has strengthened the WIPP
regulatory program, and remains
committed to involve the public in its
decision process.
Many commenters stated that the
ROMPCS design will meet regulatory
requirements, while reducing
operational costs and occupational
hazards. The EPA focused on WIPP’s
ability to meet regulatory release
standards, but has acknowledged DOE’s
stated operational motivations for
revising the panel closure design.
Several commenters expressed
confidence in the performance
assessment calculations that the EPA
relied on to reach its decision. Others
pointed out that salt is an appropriate
material for a panel closure because salt
is being relied upon to encapsulate
waste in every direction except the
panel closure. The Agency agrees with
the use of a material that is physically
and chemically compatible with the
repository environment, and has relied
on a body of data indicating that in
time, the salt panel closure will return
to a physical state similar to the halite
that surrounds it.
Many commenters expressed
confidence that, based upon monitoring
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data taken in the underground, the
ROMPCS will be adequate to protect
workers and the public against
hydrogen, methane, and VOCs during
the operational life of the repository. As
stated in the Notice of Proposed
Rulemaking, it is the responsibility of
the New Mexico Environment
Department to evaluate the ability of the
ROMPCS to perform these functions,
and DOE must demonstrate the
adequacy of the panel closure design to
the NMED through a parallel process.
One commenter expressed concern that
EPA’s approval of DOE’s PCR will
unduly influence the NMED permit
modification process, and suggested the
Agency defer its decision. The Agency
disagrees with this viewpoint.
Whenever it proposes any change to the
repository system, it is the
responsibility of DOE to demonstrate
compliance to each regulator
independently. NMED must determine
whether the design adequately protects
against VOCs, regardless of EPA’s
determination of WIPP’s compliance
with the long-term disposal standards.
The same commenter pointed out that
the proposed rule language stated that
‘‘any’’ change to the design must be
submitted to EPA as a planned change
request, and expressed concern that if
the change process imposed by EPA is
overly burdensome, DOE loses
flexibility in meeting NMED
requirements. The EPA designed the
rule to allow flexibility in approaching
future changes to the design. By
eliminating the absolute necessity of a
rulemaking, the Agency will be able to
employ a graded approach when
considering any future changes to the
panel closure design requested by DOE.
Because it is the responsibility of the
EPA to determine that the compliance
model reasonably reflects the actual
design of the repository, DOE must
inform EPA of any change to the panel
closure design described in DOE’s
current PCR. Depending on the scope of
the changes, however, DOE may not
need to provide the level of
documentation typically included in a
planned change request. As an example,
the Agency has determined that steel
ventilation bulkheads do not impact
long-term performance, and need not be
represented in the compliance models.
It is unlikely that any additional
analysis would be required to approve
a change to the configuration of
ventilation bulkheads, because the
compliance model used to approve the
design remains valid. The language of
the proposed rule seemed to require a
PCR for any proposed change to the
panel closure design. The language of
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the rule modification has been altered
so that DOE’s obligation is to inform
EPA of any proposed change. The
Agency will determine the level of
documentation necessary to evaluate the
request.
On February 14, 2014, an incident
took place in the underground at WIPP,
resulting in the release of a small
amount of radioactive material to the
environment and a disruption of
operations at the facility. EPA has been
closely involved in the investigation of
the incident and has determined that it
does not change the basis of this panel
closure decision. The incident took
place in the active waste panel. Panel
closures are installed only after waste
emplacement in a panel is complete,
and therefore would not have impacted
the event. More importantly, as
described above, EPA’s approval of the
proposed ROMPCS is based upon
WIPP’s compliance with the long-term
disposal standards from facility closure
to 10,000 years after closure. Although
EPA regulations limit radiation dose to
the public from facility operations, there
is no indication that DOE has violated
those limits, and EPA does not prescribe
the technical means that DOE must use
to meet those limits. Lastly, as described
above, the revised condition allows EPA
to apply a graded approach when
considering any further modifications to
the panel closure design. It is possible
that adjustments will be made to the
design, as a result of either NMED’s
evaluation of the panel closures’ ability
to protect workers and the public from
hazardous waste during facility
operation, or as part of DOE’s plan to
reopen the repository. This rule change
both approves a design that can be
installed quickly if it is needed, and
gives EPA the ability to efficiently
evaluate any future changes to that
design based on their impacts to longterm repository performance.
IV. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR
51735; October 4, 1993), the Agency
must determine whether the regulatory
action is ‘‘significant’’ and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or state, local, or tribal
governments or communities; (2) create
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a serious inconsistency or otherwise
interfere with an action taken or
planned by another Agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities or
the principles set forth in the Executive
Order. Pursuant to the terms of
Executive Order 12866, it has been
determined that this rule is not a
‘‘significant regulatory action.’’
B. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’) generally requires any federal
agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements unless they certify that the
rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small not-forprofit enterprises and small
governmental jurisdictions. This rule
sets forth requirements which apply
only to federal agencies. Therefore, I
certify this action will not have a
significant economic impact on a
substantial number of small entities.
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C. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paper Reduction Act,
44 U.S.C. 3501 et seq. The Compliance
Criteria in 40 CFR part 194 requirements
are applicable only to the DOE and the
EPA and do not establish any form of
collection of information from the
public.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (‘‘UMRA’’), Public
Law 104–4, establishes requirements for
federal agencies to assess the effects of
their regulatory actions on state, local
and tribal governments and the private
sector. Pursuant to Title II of the UMRA,
we have determined that this regulatory
action is not subject to the requirements
of sections 202 and 205, because this
action does not contain any ‘‘federal
mandates’’ for state, local or tribal
governments or for the private sector.
This rule applies only to federal
agencies.
E. Executive Order 12898
Pursuant to Executive Order 12898
(59 FR 7629; February 16, 1994),
entitled ‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations,’’ the Agency has
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considered environmental justice
related issues with regard to the
potential impacts of this action on the
environmental and health conditions in
low-income, minority and NativeAmerican communities. We have
complied with this mandate. However,
the requirements specifically set forth
by the Congress in the Waste Isolation
Pilot Plant Land Withdrawal Act (Pub.
L. 102–579), which prescribes the EPA’s
role at the WIPP, did not provide
authority for the Agency to examine
impacts in the communities in which
wastes are produced, stored and
transported, and Congress did not
delegate to the EPA the authority to
consider the issue of alternative
locations for the WIPP. During the
development of the existing provisions
in 40 CFR part 194, the EPA involved
minority and low income populations
early in the rulemaking process. In
1993, the EPA representatives met with
New Mexico residents and government
officials to identify the key issues that
concern them, the types of information
they wanted from the Agency and the
best ways to communicate with
different sectors of the New Mexico
public. The feedback provided by this
group of citizens formed the basis for
the EPA’s WIPP communications and
consultation plan. To help citizens
(including a significant Hispanic
population in Carlsbad and the nearby
Mescalero Indian Reservation) stay
abreast of the EPA’s WIPP-related
activities, the Agency developed many
informational products and services.
The EPA translated several documents
regarding WIPP into Spanish, including
educational materials and fact sheets
describing the EPA’s WIPP oversight
role and the radioactive waste disposal
standards. The Agency established a
toll-free WIPP Information Line,
recorded in both English and Spanish,
providing the latest information on
upcoming public meetings, publications
and other WIPP-related activities. The
EPA also developed a mailing list,
which includes many low-income,
minority and Native-American groups,
to systematically provide interested
parties with copies of EPA’s public
information documents and other
materials. Even after the final rule, in
1998, the EPA has continued to
implement outreach services to all WIPP
communities based on the needs
determined during the certification. The
Agency has established a WIPP–NEWS
email listserv to facilitate
communications with interested
stakeholders not only in New Mexico
and surrounding areas, but nationally
and internationally as well. The EPA’s
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60755
WIPP Web site is also continuously
updated with relevant news and
updates on current and future WIPP
activities.
F. National Technology Transfer &
Advancement Act of 1995
Section 12 of the National Technology
Transfer & Advancement Act of 1995 is
intended to avoid ‘‘re-inventing the
wheel.’’ It aims to reduce costs to the
private and public sectors by requiring
federal agencies to draw upon any
existing, suitable technical standards
used in commerce or industry. To
comply with the Act, the EPA must
consider and use ‘‘voluntary consensus
standards,’’ if available and applicable,
when implementing policies and
programs, unless doing so would be
‘‘inconsistent with applicable law or
otherwise impractical.’’ We have
determined that this regulatory action is
not subject to the requirements of
National Technology Transfer &
Advancement Act of 1995 as this
rulemaking is not setting any technical
standards.
G. Executive Order 13045: Children’s
Health Protection
This rule is not subject to Executive
Order 13045, entitled ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885;
April 23, 1997) because it does not
involve decisions on environmental
health risks or safety risks that may
disproportionately affect children.
H. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255; August 10,
1999), requires the EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by state
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ This rule
does not have federalism implications.
It will not have substantial direct effects
on the states, on the relationship
between the national government and
the states or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132.
This action revises a specific condition
of the Compliance Criteria in 40 CFR
part 194. These criteria are applicable
only to the DOE (operator) and the EPA
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Federal Register / Vol. 79, No. 195 / Wednesday, October 8, 2014 / Rules and Regulations
(regulator) of the WIPP disposal facility.
Thus, Executive Order 13132 does not
apply to this rule. In the spirit of
Executive Order 13132, and consistent
with the Agency’s policy to promote
communications between the EPA and
state and local governments, the EPA
specifically solicited comment on the
proposed rule from state and local
officials.
I. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249; November 9, 2000), requires the
EPA to develop an accountable process
to ensure ‘‘meaningful and timely input
by tribal officials in the development of
regulatory policies that have tribal
implications.’’ This rule does not have
tribal implications, as specified in
Executive Order 13175. This action
revises a condition of the Compliance
Criteria in 40 CFR part 194. The
Compliance Criteria are applicable only
to Federal agencies. Thus, Executive
Order 13175 does not apply to this rule.
J. Executive Order 13211: Energy Effects
2. Amend Appendix A to Part 194 by
revising Condition 1: § 194.14(b) to read
as follows:
■
Appendix A to Part 194—Certification
of the Waste Isolation Pilot Plant’s
Compliance With the 40 CFR Part 191
Disposal Regulations and the 40 CFR
Part 194 Compliance Criteria
*
*
*
*
*
Condition 1: § 194.14(b), Disposal system
design, panel closure system. The
Department shall close filled waste panels in
a manner that has been specifically approved
by the Agency. DOE must inform EPA of any
modification to the approved panel closure
design pursuant to § 194.4(b)(3)(i), and
provide any supporting information required
by § 194.14, Content of compliance
certification application. The Administrator
or Administrator’s authorized representative
will determine whether the change differs
significantly from the design included in the
most recent compliance certification, and
whether the planned change would require
modification of the compliance criteria. The
EPA’s approval of a panel closure change
request requires that performance assessment
calculations adequately represent the waste
panel closure design, and that those
calculations demonstrate the WIPP’s
compliance with the release standards set by
40 CFR part 191, Subpart B in accordance
with § 194.34, Results of performance
assessments.
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355; May 22, 2001) because it is
not a significant regulatory action under
Executive Order 12866.
*
List of Subjects in 40 CFR Part 194
40 CFR Part 271
Environmental protection, Nuclear
materials, Nuclear power plants and
reactors, Radiation protection, Waste
treatment and disposal.
[EPA–R04–RCRA–2012–0179; FRL–9917–
53–Region–4]
Dated: September 30, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air
and Radiation.
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For the reasons set out in the
preamble, 40 CFR part 194 is amended
as follows:
PART 194—CRITERIA FOR THE
CERTIFICATION AND
RECERTIFICATION OF THE WASTE
ISOLATION PILOT PLANT’S
COMPLIANCE WITH THE 40 CFR PART
191 DISPOSAL REGULATIONS
1. The authority citation for part 194
continues to read as follows:
■
Authority: Pub. L. 102–579, 106 Stat. 4777,
as amended by Public Law 104–201, 110 Stat.
2422; Reorganization Plan No. 3 of 1970, 35
FR 15623, Oct. 6, 1970, 5 U.S.C. app. 1;
Atomic Energy Act of 1954, as amended, 42
U.S.C. 2011–2296 and 10101–10270.
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16:15 Oct 07, 2014
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*
*
*
*
[FR Doc. 2014–24025 Filed 10–7–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
Florida: Final Authorization of State
Hazardous Waste Management
Program Revisions
Environmental Protection
Agency.
ACTION: Immediate final rule.
AGENCY:
Florida has applied to the
Environmental Protection Agency (EPA)
for final authorization of changes to its
hazardous waste program under the
Resource Conservation and Recovery
Act (RCRA). EPA has determined that
these changes satisfy all requirements
needed to qualify for final authorization,
and is authorizing the State’s changes
through this immediate final rule. In the
‘‘Proposed Rules’’ section of today’s
Federal Register, EPA is also publishing
a separate document that serves as the
proposal to authorize these changes.
EPA believes this action is not
controversial and does not expect
comments that oppose it. Unless EPA
SUMMARY:
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
receives written comments that oppose
this authorization during the comment
period, the decision to authorize
Florida’s changes to its hazardous waste
program will take effect. If EPA receives
comments that oppose this action, EPA
will publish a document in the Federal
Register withdrawing today’s immediate
final rule before it takes effect, and the
separate document published in today’s
‘‘Proposed Rules’’ section of this
Federal Register will serve as the
proposal to authorize the changes.
DATES: This final authorization will
become effective on December 8, 2014
unless EPA receives adverse written
comment by November 7, 2014. If EPA
receives such comment, EPA will
publish a timely withdrawal of this
immediate final rule in the Federal
Register and inform the public that this
authorization will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
RCRA–2012–0179, by one of the
following methods:
• Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Email: shipley.anita@epa.gov
• Fax: (404) 562–9964 (prior to
faxing, please notify the EPA contact
listed below).
• Mail: Send written comments to
Anita K. Shipley, Permits and State
Programs Section, RCRA Programs and
Materials Management Branch, RCRA
Division, U.S. Environmental Protection
Agency, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia
30303–8960.
• Hand Delivery or Courier: Deliver
your comments to Anita K. Shipley,
Permits and State Programs Section,
RCRA Programs and Materials
Management Branch, RCRA Division,
U.S. Environmental Protection Agency,
Atlanta Federal Center, 61 Forsyth
Street SW., Atlanta, Georgia 30303–
8960. Such deliveries are only accepted
during the Regional Office’s normal
hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: EPA must receive your
comments by November 7, 2014. Direct
your comments to Docket ID No. EPA–
R04–RCRA–2012–0179. EPA’s policy is
that all comments received will be
included in the public docket without
change and may be made available
online at www.regulations.gov including
any personal information provided,
unless the comment includes
information claimed to be Confidential
Business Information (CBI), or other
information whose disclosure is
restricted by statute. Do not submit
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]]>Agencies
[Federal Register Volume 79, Number 195 (Wednesday, October 8, 2014)]
[Rules and Regulations]
[Pages 60750-60756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24025]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 194
[EPA-HQ-OAR-2013-0684; FRL-9917-57-OAR]
RIN 2060-AR60
Criteria for the Certification and Recertification of the Waste
Isolation Pilot Plant's Compliance With the Disposal Regulations; Panel
Closure Redesign
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: With this document, the U.S. Environmental Protection Agency
(EPA, or the Agency) approves the U.S. Department of Energy's (DOE, or
the Department) planned change request to implement the Run-of-Mine
Panel Closure System (ROMPCS) at the Waste Isolation Pilot Plant (WIPP)
and amends the WIPP Compliance Criteria to allow an EPA-approved panel
closure other than the currently-required Option D design. Technical
analyses demonstrate that, with the modified panel closure design, WIPP
remains in compliance with the 10,000 year release limits set by the
``Environmental Standards for the Management and Disposal of Spent
Nuclear Fuel, High-Level and Transuranic (TRU) Radioactive Waste.'' The
changes do not lessen the requirements for complying with the
Compliance Criteria, nor do these changes impact the technical approach
that the EPA will employ when considering any future planned changes to
the panel closure system. Compliance with environmental or public
health regulations other than the EPA's long-term radioactive waste
disposal regulations and WIPP Compliance Criteria is not addressed by
today's action.
DATES: Effective October 8, 2014.
ADDRESSES: Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
The EPA has established a docket for this action under Docket ID No.
[EPA-HQ-OAR-2013-0684; FRL-9917-57-OAR]. Publicly available docket
materials related to this action (e.g., the Technical Support document
[TSD]) are available either electronically through www.regulations.gov,
on the Agency's WIPP Web site (https://www.epa.gov/radiation/wipp) or in
hard copy at the Air and Radiation Docket in the EPA Docket Center,
(EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington,
DC 20004. 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 (202) 566-1744 and the
telephone number for the Air and Radiation Docket is (202) 566-1742. In
accordance with the 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.
FOR FURTHER INFORMATION CONTACT: Ray Lee or Jonathan Walsh, Radiation
Protection Division, Mail Code 6608J, U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue, Washington, DC, 20460; telephone
number: 202-343-9463 or 202-343-9238; fax number: 202-343-2305; email
address: lee.raymond@epa.gov or walsh.jonathan@epa.gov.
SUPPLEMENTARY INFORMATION:
Preamble Acronyms and Abbreviations
Several acronyms and terms used to describe components of the WIPP
disposal system and performance assessment computer models are included
in this preamble. To ease the reading of this preamble and for
reference purposes, the following terms are defined here:
BRAGFLO Computer model used to simulate brine and gas flow
CBFO Carlsbad Field Office
CCA Compliance Certification Application
CCDF Complementary Cumulative Distribution Function
CFR Code of Federal Regulations
DBR Direct Brine Release
DOE U.S. Department of Energy
DRZ Disturbed Rock Zone
EPA U.S. Environmental Protection Agency
FEPs Features, Events and Processes
LWA Land Withdrawal Act
MSHA Mine Safety and Health Administration
NMED New Mexico Environment Department
OPC Ordinary Portland Cement
PA Performance Assessment
PABC Performance Assessment Baseline Calculation
PAVT Performance Assessment Verification Test
PCS Panel Closure System
PCS-2012 Panel Closure System 2012 Performance Assessment
PCR Planned Change Request
PC3R Panel Closure Redesign and Repository Reconfiguration
Performance Assessment
PMR Permit Modification Request
[[Page 60751]]
RCRA Resource Conservation and Recovery Act
ROM Run-of-Mine
ROMPC, or ROMPCS Run-of-Mine Salt Panel Closure System
SMC Salado Mass Concrete
SNL Sandia National Laboratories
TRU Transuranic
TSD Technical Support Document
VOC Volatile Organic Compound
WIPP Waste Isolation Pilot Plant
Table of Contents
I. What is the WIPP?
II. What did the EPA propose?
A. Approving the ROMPCS
B. Modifying Condition 1
III. How did the EPA incorporate public comments in the final rule?
IV. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Executive Order 12898
F. National Technology Transfer & Advancement Act of 1995
G. Executive Order 13045: Children's Health Protection
H. Executive Order 13132: Federalism
I. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
J. Executive Order 13211: Energy Effects
I. What is the WIPP?
The WIPP is a disposal system for defense-related transuranic (TRU)
radioactive waste. Developed by the DOE, the WIPP is located near
Carlsbad in southeastern New Mexico. At the WIPP, radioactive waste is
disposed of 2,150 feet underground in an ancient formation of salt
which will eventually ``creep'' and encapsulate the waste. The WIPP has
a total capacity of 6.2 million cubic feet of waste.
Congress authorized the development and construction of the 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\ 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\ Most
TRU waste disposed 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, soil and
organic or inorganic sludges. Some TRU waste is mixed with hazardous
chemicals. The waste to be disposed at the WIPP is currently located at
federal facilities across the United States, including locations in
California, Idaho, Illinois, New Mexico, Nevada, Ohio, South Carolina,
Tennessee and Washington.
---------------------------------------------------------------------------
\1\ Department of Energy National Security and Military
Applications of Nuclear Energy Authorization Act of 1980, Public Law
96-164, section 213.
\2\ WIPP Land Withdrawal Act, Public Law 102-579, section 2(18),
as amended by the 1996 WIPP LWA Amendments, Public Law 104-201.
---------------------------------------------------------------------------
The WIPP Land Withdrawal Act (LWA), initially passed by Congress in
1992 and amended in 1996, provides the EPA authority to oversee and
regulate the WIPP for compliance with EPA's long-term radioactive waste
disposal regulations. In 1996, the Agency issued the WIPP Compliance
Criteria, which are found at 40 CFR part 194.\3\ After reviewing DOE's
Compliance Certification Application (CCA), the Agency issued its
certification decision on May 18, 1998, as required by Section 8 of the
WIPP LWA (63 FR 27354-27406), determining that the WIPP met the
standards for radioactive waste disposal. The complete record and basis
for the EPA's 1998 certification decision can be found in Air Docket A-
93-02.
---------------------------------------------------------------------------
\3\ 61 FR 5224-5245 (February 9, 1996).
---------------------------------------------------------------------------
EPA's certification of WIPP's performance was based upon the
repository design the Department submitted in Chapter 3 of the CCA. The
underground waste disposal region at WIPP is divided into panels. A
panel is a group of rooms mined into the salt, connected by tunnels
called drifts. When all of the rooms of a panel are filled with waste,
the DOE intends to seal the drifts with engineered structures called
panel closures.
[[Page 60752]]
[GRAPHIC] [TIFF OMITTED] TR08OC14.001
In the CCA, the Department presented four options for the design of
the panel closure system, but did not specify which would be
constructed at the WIPP facility. The Agency based its certification
decision on the DOE's use of the most robust design, referred to in the
CCA as ``Option D''. Condition 1, requiring DOE to Implement the Option
D panel closure system, was appended to 40 CFR part 194 as part of the
certification decision. (63 FR 27354, May 18, 1998) The Option D design
called for the drift to be sealed using a concrete block wall and a
poured concrete monolith.
The Department submitted a PCR to the EPA on September 28, 2011,
proposing to alter the panel closure design. Citing experience and data
gained since the CCA, the DOE's PCR states that the Option D panel
closure would be extremely difficult and costly to install, and that
the highly engineered design is unnecessary for either worker safety or
environmental protection during the operational period. The DOE instead
proposed a new panel closure design, the Run-of-Mine Salt Panel Closure
System (ROMPCS), which consists of mined salt emplaced between steel
bulkheads.
II. What did EPA propose?
The EPA completed a technical review of the DOE's PCR and
supporting documentation. The goal of the Agency's technical review
process was to determine whether, with the new design, the WIPP
adequately demonstrates compliance with the requirements of 40 CFR part
194 and the release limits of 40 CFR part 191, Subparts B and C. This
process is fully documented in the TSD, ``Review of the DOE's Planned
Change Request to Modify the WIPP Panel Closure System,'' (EPA-HQ-OAR-
2013-0684-0002) and discussed in the notice of proposed rulemaking (78
FR 72612, Dec. 3, 2013). The Agency concluded that the WIPP will remain
in compliance with its release limits with the ROMPCS design. The
Agency therefore proposed to approve the DOE's PCR to implement the
redesigned panel closure at the WIPP, and to modify 40 CFR part 194
Appendix A, Condition 1 to allow panel closure designs other than
Option D, as long as DOE has demonstrated WIPP's continued compliance
with the long-term release standards.
A. Approving the ROMPCS
The EPA's Compliance Criteria at 40 CFR part 194 does not require a
panel closure for the purpose of long-term compliance with release
limits for radionuclides. The purpose of 40 CFR part 194 is to
demonstrate compliance with the disposal regulations at 40 CFR part 191
for containment of
[[Page 60753]]
radionuclides, which specify that long-term releases of radionuclides
to the accessible environment must be unlikely to exceed specific
release limits for 10,000 years after disposal, based on the amount of
waste in the repository at the time of closure (Sec. 194.31).
Assessment of the likelihood that the WIPP will not exceed release
limits is accomplished through a process called performance assessment,
or PA. The WIPP PA process culminates in a series of computer
simulations that model the physical attributes of the disposal system
(e.g., site characteristics, waste forms and quantities, engineered
features) in a manner that captures the behaviors and interactions
among its various components. The results of the PA indicate the
probability of exceeding various levels of normalized releases (Sec.
194.34). Because the Agency based its certification of the WIPP's
compliance with the disposal regulations on the accurate representation
of the repository in performance assessment, including a panel closure,
Condition 1 was appended to 40 CFR part 194 during the certification of
the WIPP. No other design feature of the repository is required by the
Compliance Criteria in a similarly explicit way.
The Option D panel closure design consists of a 12-foot thick
``explosion-isolation wall'' constructed of solid concrete blocks
filling the drift on the waste disposal side, a short section of open
drift called an ``isolation zone'' and a monolithic concrete barrier on
the side of the open drift. Fractured rock in the immediate vicinity of
the drift--called the disturbed rock zone, or DRZ--would be removed,
and the resulting void space filled by the concrete monolith. In its
current PCR, the DOE states that ``large scale testing has demonstrated
that using SMC [Salado Mass Concrete] cannot meet the design and
performance requirements for the panel closures as specified in the
CCA.'' Even if the Option D monolith could be constructed as planned,
the Agency acknowledges that it would be installed at significant cost
to the Department. Additional occupational hazards would be incurred by
moving and pouring large amounts of concrete in the underground and
disposal operations would be significantly disrupted as well.
The DOE's new panel closure design, the ROMPCS, consists primarily
of run-of-mine (ROM) salt--impure halite that has been mined in the
course of normal repository operations and not subjected to additional
processing or grading. The ROMPCS design consists of two standard steel
ventilation bulkheads with a minimum of 100 feet of run-of-mine (ROM)
salt between them, filling the drift from floor to ceiling. In Panels
1, 2 and 5, where explosion walls have already been constructed, salt
will be placed directly against the explosion wall and a standard steel
ventilation bulkhead placed on the outer end of the panel closure. The
DOE has stated that the ROMPCS will provide adequate protection during
the operational period. Upon initial emplacement, the run-of-mine salt
will exhibit the properties of a loosely consolidated or unconsolidated
material. Over time, as the open areas of the repository close due to
salt creep, the panel closures will consolidate and eventually heal to
a state resembling intact salt.
As in the past, the Agency's consideration of the panel closure
system focused on its representation in repository performance
assessment, so that the EPA can ultimately certify the WIPP's ability
to meet long-term performance standards. In support of its panel
closure PCR, the DOE initially submitted a performance assessment
calculation called the Panel Closure Redesign and Repository
Reconfiguration (PC3R) PA, which incorporated multiple planned changes.
The Agency determined that to approve the PCR, it was necessary to
isolate the impacts, if any, of the change in panel closure design. In
response, the DOE prepared the PCS-2012 PA, with the explicit goal of
changing only those aspects of the current baseline PA that are
directly related to the change in the panel closure design. Thus,
results of the PCS-2012 PA may be directly compared to results of the
current Performance Assessment Baseline Calculation (PABC-09) to see
the impact of changes in the panel closure on modeled releases from the
facility. The EPA undertook a review of the PCS-2012 PA. The majority
of the technical effort expended by the Agency was spent determining
how the changes in the panel closures should be represented in the
performance assessment models. The entire review process is fully
documented in the Agency's TSD, ``Review of DOE's Planned Change
Request to Modify the WIPP Panel Closure System.'' (EPA-HQ-OAR-2013-
0684-0002) Based on its review and on the results of performance
assessment, the Agency concludes that the WIPP will continue to comply
with the EPA's disposal standards with the ROMPCS. Therefore, the
Agency proposed to approve the DOE's PCR and allow the implementation
of the ROMPCS design at the WIPP.
B. Modifying Condition 1
The Option D panel closure is currently required by 40 CFR part
194, Appendix A, Condition 1. Therefore, accepting a redesigned panel
closure requires modification of Condition 1. Condition 1 was appended
to 40 CFR part 194 because the DOE presented multiple panel closure
options, and the EPA originally certified the WIPP's performance based
on the expected properties of the Option D panel closure. It is the
only engineered aspect of the repository design that is explicitly
required by rule. At this time, DOE has proposed a single panel closure
that it intends to implement in all waste panels at WIPP. Furthermore,
at the time of the CCA, limited performance assessment results were
available to indicate the impact of the panel closure design on
repository performance. Due to the evolution of the WIPP PA since the
CCA, the DOE and the EPA have gained a greater understanding of panel
closures' influence on PA results. Changes to the representation of the
panel closure in the performance assessment models have resulted in
small differences in the results, indicating that the panel closure
design does not disproportionately impact the long-term performance of
WIPP compared to other design features of the repository. For these
reasons, the Agency does not believe that it is necessary or
appropriate for the specific design of the panel closure to remain as a
condition of certification. Rather, panel closures should be treated in
a similar manner as any other engineered feature of the repository.
This change does not grant the DOE the ability to alter the panel
closure design at will. As with any engineered component of the
disposal system, the Agency must be informed of any departure from the
current, approved design as required by Sec. 194.4(b)(3)(i). The EPA
would expect such a request to be supported by complete technical
documentation, including any updated information concerning ``the
geology, hydrology, hydrogeology, and geochemistry of the WIPP disposal
system'' and ``WIPP materials of construction, standards applied to
design and construction,'' as required by Sec. 194.14, Content of
certification applications. The Agency would use this information to
determine whether or not the WIPP remains in compliance with the
disposal standards. As with any other planned change, based on the
potential impact to the WIPP's compliance, the EPA would determine
whether the change ``departs significantly from the most recent
[[Page 60754]]
compliance application,'' and must be addressed by rule in accordance
with Sec. 194.65.
III. How did the EPA incorporate public comments in the final rule?
The EPA held informal public meetings in Carlsbad, New Mexico, on
December 5, 2012, and Santa Fe, New Mexico, on December 6, 2012, to
provide the public with background on the DOE's panel closure system
planned change request, and to give the public the opportunity to raise
any technical issues that the Agency should consider in its decision.
After publishing the notice of proposed rulemaking, the EPA held public
meetings in Carlsbad and Albuquerque on January 22 and 23, 2014.
Summaries of these meetings have been included in the docket.
In addition to comments delivered verbally, the Agency received
seven sets of written comments. The majority of these comments
expressed support of DOE's planned change, and of EPA's proposed
approval. No comments of a technical nature were submitted, and
therefore no further analysis needed to be performed in response to
comments. One set of comments raised valid questions about further
changes to the panel closure design. In response, EPA made a minor
clarification to the rule language.
Several commenters expressed appreciation for the ability to voice
their comments. The EPA feels that public participation has
strengthened the WIPP regulatory program, and remains committed to
involve the public in its decision process.
Many commenters stated that the ROMPCS design will meet regulatory
requirements, while reducing operational costs and occupational
hazards. The EPA focused on WIPP's ability to meet regulatory release
standards, but has acknowledged DOE's stated operational motivations
for revising the panel closure design.
Several commenters expressed confidence in the performance
assessment calculations that the EPA relied on to reach its decision.
Others pointed out that salt is an appropriate material for a panel
closure because salt is being relied upon to encapsulate waste in every
direction except the panel closure. The Agency agrees with the use of a
material that is physically and chemically compatible with the
repository environment, and has relied on a body of data indicating
that in time, the salt panel closure will return to a physical state
similar to the halite that surrounds it.
Many commenters expressed confidence that, based upon monitoring
data taken in the underground, the ROMPCS will be adequate to protect
workers and the public against hydrogen, methane, and VOCs during the
operational life of the repository. As stated in the Notice of Proposed
Rulemaking, it is the responsibility of the New Mexico Environment
Department to evaluate the ability of the ROMPCS to perform these
functions, and DOE must demonstrate the adequacy of the panel closure
design to the NMED through a parallel process. One commenter expressed
concern that EPA's approval of DOE's PCR will unduly influence the NMED
permit modification process, and suggested the Agency defer its
decision. The Agency disagrees with this viewpoint. Whenever it
proposes any change to the repository system, it is the responsibility
of DOE to demonstrate compliance to each regulator independently. NMED
must determine whether the design adequately protects against VOCs,
regardless of EPA's determination of WIPP's compliance with the long-
term disposal standards.
The same commenter pointed out that the proposed rule language
stated that ``any'' change to the design must be submitted to EPA as a
planned change request, and expressed concern that if the change
process imposed by EPA is overly burdensome, DOE loses flexibility in
meeting NMED requirements. The EPA designed the rule to allow
flexibility in approaching future changes to the design. By eliminating
the absolute necessity of a rulemaking, the Agency will be able to
employ a graded approach when considering any future changes to the
panel closure design requested by DOE. Because it is the responsibility
of the EPA to determine that the compliance model reasonably reflects
the actual design of the repository, DOE must inform EPA of any change
to the panel closure design described in DOE's current PCR. Depending
on the scope of the changes, however, DOE may not need to provide the
level of documentation typically included in a planned change request.
As an example, the Agency has determined that steel ventilation
bulkheads do not impact long-term performance, and need not be
represented in the compliance models. It is unlikely that any
additional analysis would be required to approve a change to the
configuration of ventilation bulkheads, because the compliance model
used to approve the design remains valid. The language of the proposed
rule seemed to require a PCR for any proposed change to the panel
closure design. The language of the rule modification has been altered
so that DOE's obligation is to inform EPA of any proposed change. The
Agency will determine the level of documentation necessary to evaluate
the request.
On February 14, 2014, an incident took place in the underground at
WIPP, resulting in the release of a small amount of radioactive
material to the environment and a disruption of operations at the
facility. EPA has been closely involved in the investigation of the
incident and has determined that it does not change the basis of this
panel closure decision. The incident took place in the active waste
panel. Panel closures are installed only after waste emplacement in a
panel is complete, and therefore would not have impacted the event.
More importantly, as described above, EPA's approval of the proposed
ROMPCS is based upon WIPP's compliance with the long-term disposal
standards from facility closure to 10,000 years after closure. Although
EPA regulations limit radiation dose to the public from facility
operations, there is no indication that DOE has violated those limits,
and EPA does not prescribe the technical means that DOE must use to
meet those limits. Lastly, as described above, the revised condition
allows EPA to apply a graded approach when considering any further
modifications to the panel closure design. It is possible that
adjustments will be made to the design, as a result of either NMED's
evaluation of the panel closures' ability to protect workers and the
public from hazardous waste during facility operation, or as part of
DOE's plan to reopen the repository. This rule change both approves a
design that can be installed quickly if it is needed, and gives EPA the
ability to efficiently evaluate any future changes to that design based
on their impacts to long-term repository performance.
IV. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735; October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities; (2) create
[[Page 60755]]
a serious inconsistency or otherwise interfere with an action taken or
planned by another Agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities or the
principles set forth in the Executive Order. Pursuant to the terms of
Executive Order 12866, it has been determined that this rule is not a
``significant regulatory action.''
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') generally requires any
federal agency to conduct a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements unless they
certify that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises and small governmental
jurisdictions. This rule sets forth requirements which apply only to
federal agencies. Therefore, I certify this action will not have a
significant economic impact on a substantial number of small entities.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paper Reduction Act, 44 U.S.C. 3501 et seq. The
Compliance Criteria in 40 CFR part 194 requirements are applicable only
to the DOE and the EPA and do not establish any form of collection of
information from the public.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
Public Law 104-4, establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local and
tribal governments and the private sector. Pursuant to Title II of the
UMRA, we have determined that this regulatory action is not subject to
the requirements of sections 202 and 205, because this action does not
contain any ``federal mandates'' for state, local or tribal governments
or for the private sector. This rule applies only to federal agencies.
E. Executive Order 12898
Pursuant to Executive Order 12898 (59 FR 7629; February 16, 1994),
entitled ``Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations,'' the Agency has considered
environmental justice related issues with regard to the potential
impacts of this action on the environmental and health conditions in
low-income, minority and Native-American communities. We have complied
with this mandate. However, the requirements specifically set forth by
the Congress in the Waste Isolation Pilot Plant Land Withdrawal Act
(Pub. L. 102-579), which prescribes the EPA's role at the WIPP, did not
provide authority for the Agency to examine impacts in the communities
in which wastes are produced, stored and transported, and Congress did
not delegate to the EPA the authority to consider the issue of
alternative locations for the WIPP. During the development of the
existing provisions in 40 CFR part 194, the EPA involved minority and
low income populations early in the rulemaking process. In 1993, the
EPA representatives met with New Mexico residents and government
officials to identify the key issues that concern them, the types of
information they wanted from the Agency and the best ways to
communicate with different sectors of the New Mexico public. The
feedback provided by this group of citizens formed the basis for the
EPA's WIPP communications and consultation plan. To help citizens
(including a significant Hispanic population in Carlsbad and the nearby
Mescalero Indian Reservation) stay abreast of the EPA's WIPP-related
activities, the Agency developed many informational products and
services. The EPA translated several documents regarding WIPP into
Spanish, including educational materials and fact sheets describing the
EPA's WIPP oversight role and the radioactive waste disposal standards.
The Agency established a toll-free WIPP Information Line, recorded in
both English and Spanish, providing the latest information on upcoming
public meetings, publications and other WIPP-related activities. The
EPA also developed a mailing list, which includes many low-income,
minority and Native-American groups, to systematically provide
interested parties with copies of EPA's public information documents
and other materials. Even after the final rule, in 1998, the EPA has
continued to implement outreach services to all WIPP communities based
on the needs determined during the certification. The Agency has
established a WIPP-NEWS email listserv to facilitate communications
with interested stakeholders not only in New Mexico and surrounding
areas, but nationally and internationally as well. The EPA's WIPP Web
site is also continuously updated with relevant news and updates on
current and future WIPP activities.
F. National Technology Transfer & Advancement Act of 1995
Section 12 of the National Technology Transfer & Advancement Act of
1995 is intended to avoid ``re-inventing the wheel.'' It aims to reduce
costs to the private and public sectors by requiring federal agencies
to draw upon any existing, suitable technical standards used in
commerce or industry. To comply with the Act, the EPA must consider and
use ``voluntary consensus standards,'' if available and applicable,
when implementing policies and programs, unless doing so would be
``inconsistent with applicable law or otherwise impractical.'' We have
determined that this regulatory action is not subject to the
requirements of National Technology Transfer & Advancement Act of 1995
as this rulemaking is not setting any technical standards.
G. Executive Order 13045: Children's Health Protection
This rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885; April 23, 1997) because it does not involve
decisions on environmental health risks or safety risks that may
disproportionately affect children.
H. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This rule
does not have federalism implications. It will not have substantial
direct effects on the states, on the relationship between the national
government and the states or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. This action revises a specific condition of
the Compliance Criteria in 40 CFR part 194. These criteria are
applicable only to the DOE (operator) and the EPA
[[Page 60756]]
(regulator) of the WIPP disposal facility. Thus, Executive Order 13132
does not apply to this rule. In the spirit of Executive Order 13132,
and consistent with the Agency's policy to promote communications
between the EPA and state and local governments, the EPA specifically
solicited comment on the proposed rule from state and local officials.
I. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' This rule does not
have tribal implications, as specified in Executive Order 13175. This
action revises a condition of the Compliance Criteria in 40 CFR part
194. The Compliance Criteria are applicable only to Federal agencies.
Thus, Executive Order 13175 does not apply to this rule.
J. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
List of Subjects in 40 CFR Part 194
Environmental protection, Nuclear materials, Nuclear power plants
and reactors, Radiation protection, Waste treatment and disposal.
Dated: September 30, 2014.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air and Radiation.
For the reasons set out in the preamble, 40 CFR part 194 is amended
as follows:
PART 194--CRITERIA FOR THE CERTIFICATION AND RECERTIFICATION OF THE
WASTE ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART 191
DISPOSAL REGULATIONS
0
1. The authority citation for part 194 continues to read as follows:
Authority: Pub. L. 102-579, 106 Stat. 4777, as amended by Public
Law 104-201, 110 Stat. 2422; Reorganization Plan No. 3 of 1970, 35
FR 15623, Oct. 6, 1970, 5 U.S.C. app. 1; Atomic Energy Act of 1954,
as amended, 42 U.S.C. 2011-2296 and 10101-10270.
0
2. Amend Appendix A to Part 194 by revising Condition 1: Sec.
194.14(b) to read as follows:
Appendix A to Part 194--Certification of the Waste Isolation Pilot
Plant's Compliance With the 40 CFR Part 191 Disposal Regulations and
the 40 CFR Part 194 Compliance Criteria
* * * * *
Condition 1: Sec. 194.14(b), Disposal system design, panel
closure system. The Department shall close filled waste panels in a
manner that has been specifically approved by the Agency. DOE must
inform EPA of any modification to the approved panel closure design
pursuant to Sec. 194.4(b)(3)(i), and provide any supporting
information required by Sec. 194.14, Content of compliance
certification application. The Administrator or Administrator's
authorized representative will determine whether the change differs
significantly from the design included in the most recent compliance
certification, and whether the planned change would require
modification of the compliance criteria. The EPA's approval of a
panel closure change request requires that performance assessment
calculations adequately represent the waste panel closure design,
and that those calculations demonstrate the WIPP's compliance with
the release standards set by 40 CFR part 191, Subpart B in
accordance with Sec. 194.34, Results of performance assessments.
* * * * *
[FR Doc. 2014-24025 Filed 10-7-14; 8:45 am]
BILLING CODE 6560-50-P
