45.0  Consideration of the Presence of Resources (40 CFR § 194.45)

45.1  Requirements

§ 194.45  Consideration of the Presence of Resources Any compliance application shall include information that demonstrates that the favorable characteristics of the disposal system compensate for the presence of resources in the vicinity of the disposal system and the likelihood of the disposal system being disturbed as a result of the presence of those resources.  If performance assessments predict that the disposal system meets the containment requirements of §191.13 of this chapter, then the Agency will assume that the requirements of this section and §191.14(e) of this chapter have been fulfilled.

 

45.2  Background

40 CFR § 194.45 (2004) implements the assurance requirement that the disposal system be sited so that the benefits of the disposal system’s natural barriers compensate for the increased probability of disruptions to the disposal system resulting from exploring and developing existing resources.  In promulgating this requirement, the U.S. Environmental Protection Agency (EPA) determined that performance assessment (PA) provides a rigorous analytical methodology to determine whether the Waste Isolation Pilot Plant (WIPP) site has compensating features that outweigh the presence of resources (U.S. Environmental Protection Agency 1996).  In accordance with the compliance criteria, the U.S. Department of Energy (DOE) must demonstrate that the PA has incorporated the potential effects of human activities near the WIPP prior to disposal, and of drilling and excavation mining over the regulatory time frame.

45.3  1998 Certification Decision

In the Compliance Certification Application (CCA) (U.S. Department of Energy 1996), Chapter 7.0, Section 7.5, the DOE describes the measures taken to comply with the requirements of section 194.45.  The CCA, Chapter 7.0, Section 7.5 states that the results of the PA, taking into account the potential for resource exploration, met the containment requirements of the EPA as dictated by the disposal regulations and compliance criteria.  The CCA, Chapter 7.0, Section 7.5.2 states that the DOE concluded that the favorable characteristics of the WIPP compensate for any possible disturbance.

The EPA found that the information contained in the CCA, Chapter 7.0, Section 7.5, and portions of the CCA cross-referenced in Chapter 7.0, Section 7.5 demonstrates that the DOE accounted for potential resource exploration and met the EPA’s requirements based on the results of the PA.  Furthermore, the DOE’s Final Environmental Impact Statement for the WIPP indicates that resource considerations were taken into account during the disposal system’s site selection process (U.S. Department of Energy 1980, Volume 1, Section 7.3.7).  Based on these factors, the EPA concluded that the DOE complied with the requirements of section 194.45.  A complete description of the EPA’s 1998 Certification Decision for section 194.45 can be obtained from U.S. Environmental Protection Agency 1998a and 1998b.

45.4  Changes in the CRA-2004

The DOE did not report any significant changes to the information on which the EPA based the 1998 Certification Decision.  The Compliance Recertification Application (CRA) of 2004 (CRA-2004) (U.S. Department of Energy 2004), Chapter 7.0, Section 7.5, contains all the changes related to resource considerations since 1998.  The DOE made some minor changes to the list of features, events, and processes (FEPs) considered in the CRA-2004, but the changes did not affect the outcome of the PA.  (See the CRA-2004, Appendix SCR, Table SCR-1.)

In the CRA-2004, Chapter 7.0, Section 7.5, the DOE demonstrates that:

·        The effects of mining and drilling over the regulatory time frame have been incorporated into PAs according to the requirements of 40 CFR §§ 194.32, 194.33, and 194.43.

·        The PA incorporates the effects on the disposal system of any activities that occur in the vicinity of the disposal system or are expected to occur in the vicinity of the disposal system during the 10,000 year regulatory period, according to the requirements of section 194.32.

·        The results of PA demonstrate compliance with the containment requirements of 40 CFR § 191.13 (U.S. Environmental Protection Agency 1993).

The results of the recertification PA are documented in the CRA-2004, Chapter 6.0, Section 6.5, and in supplemental information on the CRA-2004 Performance Assessment Baseline Calculation (Leigh et al. 2005).  In addition, the impacts of resource development outside the controlled area were considered in the development of the WIPP’s conceptual models, as well as in the site selection process.

45.5  EPA’s Evaluation of Compliance for the 2004 Recertification

The EPA’s review of the activities and conditions in and around the WIPP site did not identify any significant changes since the 1998 Certification Decision related to the presence of resources.

Based on a review and evaluation of the CRA-2004; supplemental information in the CCA, Appendices GCR, IRL, and DEL provided by the DOE in the CRA-2004; and an assessment of changes since 1998, the EPA determined that the DOE continued to comply with the requirements in section 194.45.

45.6  Changes or New Information Since the 2004 Recertification

Section 194.45 states, “If performance assessments predict that the disposal system meets the containment requirements of Section 191.13 of this chapter, then the Agency will assume that the requirements of this section and §191.14(e) of this chapter have been fulfilled.”  Therefore, provided that the PA appropriately incorporates processes relating to resource discovery and production, and predicts releases that are below limits established by the EPA, compliance with section 194.45 has been demonstrated.  This conditional logic relies heavily upon whether or not the PA is structured to appropriately represent resource-related activities at the WIPP site.  To accomplish this, the DOE uses a structured methodology to identify and select FEPs that may have an impact on the disposal system.  This process is documented in “Scope of Performance Assessment,” Section 32, and Appendix SCR-2009.  There have been no changes in screening decisions for resource related FEPs for the CRA-2009.

While there have been no screening changes for FEPs related to the presence of resources, there have been two changes relating to the implementation of the presence of resources in PA models.  These changes include a new drilling rate (LAMBDAD) (see Appendix DATA-2009 and Appendix PA-2009, Section PA-2.1.1) and a change in the duration of direct brine releases through the PA parameter MAXFLOW (see Appendix PA-2009, Section PA-2.1.1).  These changes are not significant, but have been made to incorporate the most recent information available relating to the exploitation of resources (see “Consideration of Drilling Events in Performance Assessment,” Section 33).  Besides these two drilling-related parameters, there have been no planned changes adopted by the DOE since the CRA-2004 that impact the previous position and bases for demonstrating compliance with this section.  The PA calculations responsive to section 191.13 show predicted releases to be well within the regulated limits and demonstrate that the favorable characteristics and isolating capability of the WIPP outweigh the risks associated with the presence of resources at the site.  Therefore, the requirements of section 194.45 are met.

45.7  References

Leigh, C., J. Kanney, L. Brush, J. Garner, G. Kirkes, T. Lowry, M. Nemer, J. Stein, E. Vugrin, S. Wagner, and T. Kirchner.  2005.  2004 Compliance Recertification Application Performance Assessment Baseline Calculation(Revision 0).  ERMS 541521.  Carlsbad, NM:  Sandia National Laboratories...\..\references\Others\Leigh_et_al_2004_CRA_PABC_rev0_ERMS541521.pdf

U.S. Department of Energy (DOE).  1980.  Final Environmental Impact Statement for the Waste Isolation Pilot Plant (October).  2 vols.  DOE/EIS-0026.  ERMS 238835 and ERMS 238838.  Washington, DC:  U.S. Department of Energy...\..\references\Others\DOE_1980_Final_Environmental_Impact_Statement_for_the_WIPP_ERMS238838.pdf

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).  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.  Response to Comments:  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 (January 31).  402-R-96-001.  Washington, DC:  Office of Air and Radiation...\..\references\Others\EPA_1996_Response_to_Comments_402_R_96_001.pdf

U.S. Environmental Protection Agency (EPA).  1998a.  “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).  1998b. Compliance Application Review Documents for the Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant’s Compliance with the 40 CFR 191 Disposal Regulations:  Final Certification Decision (May).  Washington, DC:  Office of Radiation and Indoor Air...\..\references\Others\EPA_CCA_CARD_Proposed_Certification_Decision.pdf