[Code of Federal Regulations]
[Title 40, Volume 24]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR194.26]

[Page 50]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 194_CRITERIA FOR THE CERTIFICATION AND RE-CERTIFICATION OF THE WASTE 
ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART 191 DISPOSAL 
REGULATIONS--Table of Contents
 
         Subpart C_Compliance Certification and Re-certification
 
Sec. 194.26  Expert judgment.

    (a) Expert judgment, by an individual expert or panel of experts, 
may be used to support any compliance application, provided that expert 
judgment does not substitute for information that could reasonably be 
obtained through data collection or experimentation.
    (b) Any compliance application shall:
    (1) Identify any expert judgments used to support the application 
and shall identify experts (by name and employer) involved in any expert 
judgment elicitation processes used to support the application.
    (2) Describe the process of eliciting expert judgment, and document 
the results of expert judgment elicitation processes and the reasoning 
behind those results. Documentation of interviews used to elicit 
judgments from experts, the questions or issues presented for 
elicitation of expert judgment, background information provided to 
experts, and deliberations and formal interactions among experts shall 
be provided. The opinions of all experts involved in each elicitation 
process shall be provided whether the opinions are used to support 
compliance applications or not.
    (3) Provide documentation that the following restrictions and 
guidelines have been applied to any selection of individuals used to 
elicit expert judgments:
    (i) Individuals who are members of the team of investigators 
requesting the judgment or the team of investigators who will use the 
judgment were not selected; and
    (ii) Individuals who maintain, at any organizational level, a 
supervisory role or who are supervised by those who will utilize the 
judgment were not selected.
    (4) Provide information which demonstrates that:
    (i) The expertise of any individual involved in expert judgment 
elicitation comports with the level of knowledge required by the 
questions or issues presented to that individual; and
    (ii) The expertise of any expert panel, as a whole, involved in 
expert judgment elicitation comports with the level and variety of 
knowledge required by the questions or issues presented to that panel.
    (5) Explain the relationship among the information and issues 
presented to experts prior to the elicitation process, the elicited 
judgment of any expert panel or individual, and the purpose for which 
the expert judgment is being used in compliance applications(s).
    (6) Provide documentation that the initial purpose for which expert 
judgment was intended, as presented to the expert panel, is consistent 
with the purpose for which this judgment was used in compliance 
application(s).
    (7) Provide documentation that the following restrictions and 
guidelines have been applied in eliciting expert judgment:
    (i) At least five individuals shall be used in any expert 
elicitation process, unless there is a lack or unavailability of experts 
and a documented rationale is provided that explains why fewer than five 
individuals were selected.
    (ii) At least two-thirds of the experts involved in an elicitation 
shall consist of individuals who are not employed directly by the 
Department or by the Department's contractors, unless the Department can 
demonstrate and document that there is a lack or unavailability of 
qualified independent experts. If so demonstrated, at least one-third of 
the experts involved in an elicitation shall consist of individuals who 
are not employed directly by the Department or by the Department's 
contractors.
    (c) The public shall be afforded a reasonable opportunity to present 
its scientific and technical views to expert panels as input to any 
expert elicitation process.