compliance application that such credit is justified because the passive institutional controls are expected to endure and be understood by potential intruders for the time period approved by the Administrator. Such credit, or a smaller credit as determined by the Administrator, cannot be used for more than several hundred years and may decrease over time. In no case, however, shall passive institutional controls be assumed to eliminate the likelihood of human intrusion entirely.

§194.44 Engineered barriers.

(a) Disposal systems shall incorporate engineered barrier(s) designed to prevent or substantially delay the movement of water or radionuclides toward the accessible environment.

(b) In selecting any engineered barrier(s) for the disposal system, the Department shall evaluate the benefit and detriment of engineered barrier alternatives, including but not limited to: Cementation, shredding, supercompaction, incineration, vitrification, improved waste canisters, grout and bentonite backfill, melting of metals, alternative configurations of waste placements in the disposal system, and alternative disposal system dimensions. The results of this evaluation shall be included in any compliance application and shall be used to justify the selection and rejection of each engineered barrier evaluated.

(c)(1) In conducting the evaluation of engineered barrier alternatives, the following shall be considered, to the extent practicable:

(i) The ability of the engineered barrier to prevent or substantially delay the movement of water or waste toward the accessible environment;

(ii) The impact on worker exposure to radiation both during and after incorporation of engineered barriers;

(iii) The increased ease or difficulty of removing the waste from the disposal system;

(iv) The increased or reduced risk of transporting the waste to the disposal system;

(v) The increased or reduced uncertainty in compliance assessment;

(vi) Public comments requesting specific engineered barriers;

(vii) The increased or reduced total system costs;

(viii) The impact, if any, on other waste disposal programs from the incorporation of engineered barriers (e.g., the extent to which the incorporation of engineered barriers affects the volume of waste);

(ix) The effects on mitigating the consequences of human intrusion.

(2) If, after consideration of one or more of the factors in paragraph (c)(1) of this section, the Department concludes that an engineered barrier considered within the scope of the evaluation should be rejected without evaluating the remaining factors in paragraph (c)(1) of this section, then any compliance application shall provide a justification for this rejection explaining why the evaluation of the remaining factors would not alter the conclusion.

(d) In considering the ability of engineered barriers to prevent or substantially delay the movement of water or radionuclides toward the accessible environment, the benefit and detriment of engineered barriers for existing waste already packaged, existing waste not yet packaged, existing waste in need of re-packaging, and to-be-generated waste shall be considered separately and described.

(e) The evaluation described in paragraphs (b), (c) and (d) of this section shall consider engineered barriers alone and in combination.

§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.

$194.54 Scope of compliance assessments.

(a) Any compliance application shall contain compliance assessments required pursuant to this part. Compliance assessments shall include information which:

(1) Identifies potential processes, events, or sequences of processes and events that may occur over the regulatory time frame;

(2) Identifies the processes, events, or sequences of processes and events included in compliance assessment results provided in any compliance application; and

(3) Documents why any processes, events, or sequences of processes and events identified pursuant to paragraph (a)(1) of this section were not included in compliance assessment results provided in any compliance application.

(b) Compliance assessments of undisturbed performance shall include the effects on the disposal system of:

(1) Existing boreholes in the vicinity of the disposal system, with attention to the pathways they provide for migration of radionuclides from the site; and

(2) Any activities that occur in the vicinity of the disposal system prior to or soon after disposal. Such activities shall include, but shall not be limited to: Existing boreholes and the development of any existing leases that can be reasonably expected to be developed in the near future, including boreholes and leases that may be used for fluid injection activities.

$194.55 Results of compliance assessments.

(a) Compliance assessments shall consider and document uncertainty in the performance of the disposal system.

(b) Probability distributions for uncertain disposal system parameter values used in compliance assessments shall be developed and documented in any compliance application.

(c) Computational techniques which draw random samples from across the entire range of values of each probability distribution developed pursuant to paragraph (b) of this section shall be used to generate a range of:

(1) Estimated committed effective doses received from all pathways pursuant to §194.51 and §194.52;

(2) Estimated radionuclide concentrations in USDWS pursuant to §194.53; and

(3) Estimated dose equivalent received from USDWS pursuant to §194.52 and § 194.53.

(d) The number of estimates generated pursuant to paragraph (c) of this section shall be large enough such that the maximum estimates of doses and concentrations generated exceed the 99th percentile of the population of estimates with at least a 0.95 probability. (e) Any compliance application shall display:

(1) The full range of estimated radiation doses; and

(2) The full range of estimated radionuclide concentrations.

(f) Any compliance application shall document that there is at least a 95 percent level of statistical confidence that the mean and the median of the range of estimated radiation doses and the range of estimated radionuclide concentrations meet the requirements of § 191.15 and part 191, subpart C of this chapter, respectively.

Subpart D-Public Participation § 194.61 Advance notice of proposed rulemaking for certification.

(a) Upon receipt of a compliance application submitted pursuant to section 8(d)(1) of the WIPP LWA and §194.11, the Agency will publish in the FEDERAL REGISTER an Advance Notice of Proposed Rulemaking announcing that a compliance application has been received, soliciting comment on such application, and announcing the Agency's intent to conduct a rulemaking to certify whether the WIPP facility will comply with the disposal regulations.

(b) A copy of the compliance application will be made available for inspection in Agency dockets established pursuant to §194.67.

(c) The notice will provide a public comment period of 120 days.

(d) A public hearing concerning the notice will be held if a written request is received by the Administrator or the Administrator's authorized representative within 30 calendar days of the date

(a) The Administrator will publish a Notice of Proposed Rulemaking in the FEDERAL REGISTER announcing the Administrator's proposed decision, pursuant to section 8(d)(1) of the WIPP LWA, whether to issue a certification that the WIPP facility will comply with the disposal regulations and soliciting comment on the proposal.

(b) The notice will provide a public comment period of at least 120 days.

(c) The notice will announce public hearings in New Mexico.

(d) Any comments received on the notice will be made available for inspection in the dockets established pursuant to §194.67.

$194.63 Final rule for certification.

(a) The Administrator will publish a Final Rule in the FEDERAL REGISTER announcing the Administrator's decision, pursuant to section 8(d)(1) of the WIPP LWA, whether to issue a certification that the WIPP facility will comply with the disposal regulations.

(b) A document summarizing significant comments and issues arising from comments received on the Notice of Proposed Rulemaking, as well as the Administrator's response to such significant comments and issues, will be prepared and will be made available for inspection in the dockets established pursuant to § 194.67.

$194.64 Documentation of continued

compliance.

(a) Upon receipt of documentation of continued compliance with the disposal regulations pursuant to section 8(f) of the WIPP LWA and §194.11, the Administrator will publish a notice in the FEDERAL REGISTER announcing that such documentation has been received,

soliciting comment on such documentation, and announcing the Administrator's intent to determine whether or not the WIPP facility continues to be in compliance with the disposal regulations.

(b) Copies of documentation of continued compliance received by the Administrator will be made available for inspection in the dockets established pursuant to § 194.67.

(c) The notice will provide a public comment period of at least 30 days after publication pursuant to paragraph (a) of this section.

(d) Any comments received on such notice will be made available for public inspection in the dockets established pursuant to § 194.67.

(e) Upon completion of review of the documentation of continued compliance with the disposal regulations, the Administrator will publish a notice in the FEDERAL REGISTER announcing the Administrator's decision whether not to re-certify the WIPP facility.

or

$194.65 Notice of proposed rulemaking for modification or revocation.

(a) If the Administrator determines that any changes in activities or conditions pertaining to the disposal system depart significantly from the most recent compliance application, the Agency will publish a Notice of Proposed Rulemaking in the FEDERAL REGISTER announcing the Administrator's proposed decision on modification or revocation, and soliciting comment on the proposal.

(b) Any comments received on the notice will be made available for inspection in the dockets established pursuant to § 194.67.

$194.66 Final rule for modification or revocation.

(a) The Administrator will publish a Final Rule in the FEDERAL REGISTER announcing the Administrator's decision on modification or revocation.

(b) A document summarizing significant comments and issues arising from comments received on the Notice of Proposed Rulemaking as well as the Administrator's response to such significant comments and issues will be prepared and will be made available for

inspection in the dockets established pursuant to §194.67.

$194.67 Dockets.

The Agency will establish and maintain dockets in the State of New Mexico and Washington, DC. The dockets will consist of all relevant, significant information received from outside parties and all significant information considered by the Administrator in certifying whether the WIPP facility will comply with the disposal regulations, in certifying whether or not the WIPP facility continues to be in compliance with the disposal regulations, and in determining whether compliance certification should be modified, suspended or revoked.

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

In accordance with the provisions of the WIPP Compliance Criteria of this part, the Agency finds that the Waste Isolation Pilot Plant ("WIPP") will comply with the radioactive waste disposal regulations at part 191, subparts B and C, of this chapter. Therefore, pursuant to Section 8(d)(2) of the WIPP Land Withdrawal Act ("WIPP LWA"), as amended, the Administrator certifies that the WIPP facility will comply with the disposal regulations. In accordance with the Agency's authority under §194.4(a), the certification of compliance is subject to the following conditions:

Condition 1: $194.14(b), Disposal system design, panel closure system. The Department shall implement the panel seal design designated as Option D in Docket A-93-02, Item II-G-1 (October 29, 1996, Compliance Certification Application submitted to the Agency). The Option D design shall be implemented as described in Appendix PCS of Docket A-93-02, Item II-G-1, with the exception that the Department shall use Salado mass concrete (consistent with that proposed for the shaft seal system, and as described in Appendix SEAL of Docket A-93-02, Item IIG-1) instead of fresh water concrete.

Condition 2: $194.22: Quality Assurance. The Secretary shall not allow any waste generator site other than the Los Alamos National Laboratory to ship waste for disposal at the WIPP until the Agency determines that the site has established and executed a quality assurance program, in accordance with §§ 194.22(a)(2)(i), 194.24(c)(3) and

194.24(c)(5) for waste characterization activities and assumptions. The Agency will determine compliance of site-specific quality assurance programs at waste generator sites using the process set forth in § 194.8.

Condition 3: $194.24: Waste Characterization. The Secretary may allow shipment for disposal at the WIPP of legacy debris waste at the Los Alamos National Laboratory ("LANL") that can be characterized using the systems and processes inspected by the Agency and documented in Docket A-93-02, Item II-I-70. The Secretary shall not allow shipment of any waste from any additional LANL waste stream(s) or from any waste generator site other than LANL for disposal at the WIPP until the Agency has approved the processes for characterizing those waste streams for shipment using the process set forth in § 194.8.

Condition 4: $194.43, Passive institutional controls.

(a) Not later than the final recertification application submitted prior to closure of the disposal system, the Department shall provide, to the Administrator or the Administrator's authorized representative:

(1) a schedule for implementing passive institutional controls that has been revised to show that markers will be fabricated and emplaced, and other measures will be implemented, as soon as possible following closure of the WIPP. Such schedule should describe how testing of any aspect of the conceptual design will be completed prior to or soon after closure, and what changes to the design of passive institutional controls may be expected to result from such testing.

(2) documentation showing that the granite pieces for the proposed monuments and information rooms described in Docket A-9302, Item II-G-1, and supplementary information may be: quarried (cut and removed from the ground) without cracking due to tensile stresses from handling or isostatic rebound; engraved on the scale required by the design; transported to the site, given the weight and dimensions of the granite pieces and the capacity of existing rail cars and rail lines; loaded, unloaded, and erected without cracking based on the capacity of available equipment; and successfully joined.

(3) documentation showing that archives and record centers will accept the documents identified and will maintain them in the manner identified in Docket A-93-02, Item II-G-1.

(4) documentation showing that proposed recipients of WIPP information other than archives and record centers will accept the information and make use of it in the manner indicated by the Department in Docket A-93-02, Item II-G-1 and supplementary information.

(b) Upon receipt of the information required under paragraph (a) of this condition, the Agency will place such documentation in

Subpart A-General Provisions

$195.1 Purpose and applicability.

(a) Purpose. The purpose of this part is to establish and collect the fees from applicants and participants required by section 305 of the Toxic Substances Control Act, U.S.C. 2665 to defray the cost to EPA for operating the following programs: The National Radon Measurement Proficiency (RMP) Program, the individual proficiency component of the RMP Program, and the National Radon Contractor Proficiency (RCP) Program.

(b) Applicability. This part applies to all applicants and participants in the following EPA programs: The National Radon Measurement Proficiency Program, the individual proficiency component of the RMP Program, and the National Radon Contractor Proficiency Program.

§ 195.2 Definitions.

Definitions in 15 U.S.C. 2602 and 2662 apply to this part unless otherwise specified in this section. In addition, the following definitions apply:

Acceptance date means the date on which EPA enters the application into the data system.

Accepted application refers to an application that has been entered into the data system.