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41.0  Active Institutional Controls (40 CFR § 194.41)

41.1  Requirements

§ 194.41  Active Institutional Controls (a) Any compliance application shall include detailed descriptions of proposed active institutional controls, the controls’ location, and the period of time the controls are proposed to remain active.  Assumptions pertaining to active institutional controls and their effectiveness in terms of preventing or reducing radionuclide releases shall be supported by such descriptions. (b) Performance assessments shall not consider any contributions from active institutional controls for more than 100 years after disposal.

 

41.2  Background

One of the six assurance requirements is found in 40 CFR § 194.41 (U.S. Environmental Protection Agency 1996) which contains the compliance criteria.  Assurance requirements are 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 Waste Isolation Pilot Plant (WIPP) for many thousands of years (U.S. Environmental Protection Agency 1985, p. 38072, and Compliance Application Review Document [CARD] 41, U.S. Environmental Protection Agency 1998a, Section 41.A.1).  Section 194.41 is one of the six assurance requirements in the Compliance Criteria.  Active institutional controls (AICs) are defined in 40 CFR § 191.12 (U.S. Environmental Protection Agency 1993) as “controlling access to a disposal site by any means other than passive institutional controls, performing maintenance operations or remedial actions at a site, controlling or cleaning up releases from a site, or monitoring parameters related to disposal system performance.” Section 194.41 requires AICs to be maintained for as long a period of time as practicable after disposal; however, contributions from AICs for reducing the rate of human intrusion in the performance assessment (PA) may not be considered for more than 100 years after disposal.

41.3  1998 Certification Decision

To meet the requirements for section 194.41, the U.S. Environmental Protection Agency (EPA) expected the Compliance Certification Application (CCA) (U.S. Department of Energy 1996) to describe in detail the proposed AICs and their location and function and to identify the period of time they are expected to remain active.  The EPA also expected the U.S. Department of Energy (DOE) to provide detailed information regarding implementation of the controls, any assumptions pertaining to the effectiveness of active controls, a justification for any credit for the AICs used in the PA, and the method for determining the credit.  The EPA specified that the PA could not assume that the AICs would be effective for a period longer than 100 years after disposal.

In the CCA, Chapter 7.0 and Appendix AIC, the DOE describes its plan for the AICs, including constructing a fence and roadway around the surface footprint of the repository, posting warning signs, and performing routine patrols and surveillance.  The DOE states that the AICs will be maintained for 100 years after closure of the WIPP facility and would effectively prevent human intrusion during that time.

The EPA reviewed the DOE’s proposed plans for the AICs in connection with the types of activities (U.S. Environmental Protection Agency 1998a, Section 41.A.3) that may be expected to occur in the vicinity of the WIPP site during the first 100 years after disposal (i.e., ranching, farming, hunting, scientific activities, utilities and transportation, groundwater pumping, surface excavation, potash exploration, construction, and hostile or illegal activities).  The EPA also examined the assumptions made by the DOE to justify the assertion that the AICs will be completely effective for 100 years.

The EPA found that the DOE adequately described the proposed AICs and the basis for their assumed effectiveness and did not assume in the PA that the AICs would be effective for more than 100 years, and thus found the DOE to be in compliance with section 194.41.

A complete description of the EPA’s 1998 Certification Decision for section 194.41 can be found in U.S. Environmental Protection Agency (1998b).

41.4  Changes in the CRA-2004

The 2004 Compliance Recertification Application (CRA-2004), Chapter 7.0 contains the changes related to AICs since 1998.  The DOE reported that the CCA, Appendix AIC was unchanged since 1998; however, the following changes were included in CRA-2004:

·        A new timeline for implementation of AICs

·        DOE’s approach to maintaining and replacing AICs

·        Minimum standards to apply during construction and maintenance of AICs

41.5  EPA’s Evaluation of Compliance for the 2004 Recertification

Based on the EPA’s review of the activities and conditions in and around the WIPP site, the EPA did not identify any significant changes in the planning and execution of the DOE’s AICs plan since the 1998 Certification Decision (U.S. Environmental Protection Agency 2006a, p. 41-2, paragraph 2 and paragraph 4).

The EPA concluded that the CRA-2004 adequately describes, in detail, the proposed AICs and their location and function, and identifies the basis for the DOE’s assumed effectiveness.  The EPA confirmed that the DOE’s CRA-2004 Performance Assessment Baseline Calculations used the maximum allowable credit for the AICs against human intrusion (100 years).  The EPA found reasonable the DOE’s assertion that the AICs will completely prevent human intrusion for 100 years.

The EPA approved the removal of Appendix LMP from recertification applications.  The EPA found that information from Appendix LMP was not used as a basis for the EPA’s 1998 Compliance Decision on section 194.41 (U.S. Environmental Protection Agency 1998b).  Because it does not directly support compliance demonstrations for the EPA’s disposal regulations, its removal from the CRA-2004 was not significant; nor did it affect the EPA’s evaluation of continued compliance.

During its review of the CRA-2004, the EPA received no public comments on the DOE’s continued compliance with the AICs requirements of section 194.41.  The EPA found (U.S. Environmental Protection Agency 2006c) the DOE to be in continued compliance with the requirements of section 194.41.

41.6  Changes or New Information Since the 2004 Recertification

In the 2009 CRA (CRA-2009), the DOE is not proposing any changes to the AICs program for the WIPP.  Information pertaining to the program as provided in the CCA and the CRA-2004 remains unchanged.  The DOE believes it has demonstrated continued compliance with the provisions of section 194.41.

41.7  References

U.S. Department of Energy (DOE).  1996.  Title 40 CFR Part 191 Compliance Certification Application for the Waste Isolation Pilot Plant (October).  21 vols.  DOE/CAO 1996-2184.  Carlsbad, NM:  Carlsbad Area Office...\..\references\CCA\CCA.htm

U.S. Department of Energy (DOE).  2004.  Title 40 CFR Part 191 Compliance Recertification Application for the Waste Isolation Pilot Plant (March).  10 vols.  DOE/WIPP 2004-3231.  Carlsbad, NM:  Carlsbad Field Office...\..\references\CRA-2004\CRA-2004.htm

U.S. Environmental Protection Agency (EPA).  1985.  “40 CFR 191: Environmental Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes; Final Rule.”  Federal Register, vol. 50 (September 19, 1985):  38066–089...\..\references\Others\EPA_50_FR_38066_089_September_19_1985.pdf

U.S. Environmental Protection Agency (EPA).  1993.  “40 CFR Part 191:  Environmental Radiation Protection Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes; Final Rule.”  Federal Register, vol. 58 (December 20, 1993):  66398–416...\..\references\Others\EPA_58_FR_66398_416_December_20_1993.pdf

U.S. Environmental Protection Agency (EPA).  1996.  “40 CFR Part 194:  Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the 40 CFR Part 191 Disposal Regulations; Final Rule.”  Federal Register, vol. 61 (February 9, 1996):  5223–45...\..\references\Others\EPA_61_FR_5224_5245_February_9_1996.pdf

U.S. Environmental Protection Agency (EPA).  1998a.  “CARD No. 41:  Active Institutional Controls.”  Compliance Application Review Documents for the Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the 40 CFR Part 191 Disposal Regulations:  Final Certification Decision (May) (pp. 41-1 through 41-6).  Washington, DC:  Office of Radiation and Indoor Air...\..\references\Others\EPA_CCA_CARD_41.pdf

U.S. Environmental Protection Agency (EPA).  1998b.  “40 CFR Part 194:  Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the Disposal Regulations:  Certification Decision; Final Rule.”  Federal Register, vol. 63 (May 18, 1998):  27353–406...\..\references\Others\EPA_63_FR_27353_408_May_18_1998.pdf

U.S. Environmental Protection Agency (EPA).  2006a.  “Recertification CARD No. 41:  Active Institutional Controls.”  Compliance Application Review Documents for the Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the 40 CFR Part 191 Disposal Regulations:  Final Recertification Decision (pp. 41-1 through 41-3) (March).  Washington, DC:  Office of Radiation and Indoor Air...\..\references\Others\EPA_CRA_CARD_41.pdf

U.S. Environmental Protection Agency (EPA).  2006b  “40 CFR Part 194:  Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the Disposal Regulations:  Recertification Decision” (Final Notice).  Federal Register, vol. 71 (April 10, 2006):  18010–021...\..\references\Others\EPA_71_FR_18010_18021_April_10_2006.pdf