[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8546]


[[Page Unknown]]

[Federal Register: April 11, 1994]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 61

[Docket No. PRM-61-2]

 

New England Coalition on Nuclear Pollution, Inc.; Denial of 
Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the New England Coalition on Nuclear 
Pollution, Inc. (PRM-61-2). The petitioner requested that the NRC amend 
its regulations regarding waste classification of low-level radioactive 
waste (LLW) to restrict the number and types of waste streams which can 
be disposed of in near-surface disposal facilities and prepare a 
supplemental Environmental Impact Statement (EIS). The NRC is denying 
the petition because the ``new information'' as presented by the 
petitioner is not sufficient to invalidate the existing classification 
system or justify that NRC prepare a supplemental EIS.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, the petitioner's response to these comments, and the NRC's 
letter to the petitioner are available for public inspection or copying 
in the NRC Public Document Room, 2120 L Street NW. (Lower Level), 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington DC 
20555, Telephone: 301-492-3877 or Robert Hogg, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, Telephone: 301-504-2579.

SUPPLEMENTARY INFORMATION:

The Petition

    On July 23, 1992 (57 FR 32743), the Nuclear Regulatory Commission 
published a notice of receipt of a petition for rulemaking filed by the 
New England Coalition on Nuclear Pollution, Inc. The petitioner 
requested that the NRC amend 10 CFR part 61 concerning the 
classification of low-level radioactive waste for near-surface disposal 
to restrict the number and types of waste streams which may be disposed 
of in these disposal facilities. The petitioner believes the requested 
changes are necessary because of significant new information concerning 
intrusion into LLW disposal facilities that was not available at the 
time the original EIS was developed. Because of the new information, 
the petitioner argues that the NRC must prepare a supplemental EIS 
since the premises leading to the conclusions reached in the original 
EIS have substantially changed.
    The petition is based on three purported changes that the 
petitioner believes have occurred since the rule was promulgated. The 
petitioner asserts that these changes affect the basis used to 
promulgate 10 CFR part 61.
    1. The petitioner argues that the original EIS was based on a 500 
mrem per year dose to ``inadvertent intruders.'' Revised guidance by 
international organizations has reduced dose limits for individual 
members of the public to 100 mrem per year and this new criterion has 
been incorporated into 10 CFR part 20. The petitioner presumes that the 
intruder and public dose limits are integrally linked. The petitioner 
asserts that this revised dose limit should also be incorporated into 
the waste classification system and that this would impact waste 
streams allowed to be disposed of in LLW facilities.
    2. The petitioner states that the three intrusion scenarios that 
the NRC considered in the development of 10 CFR part 61 do not define a 
broad enough spectrum of possible events. Of particular concern is that 
the NRC used regulatory discretion, rather than scientific data, to 
exclude deliberate intrusion. The petitioner states that recent studies 
conducted at the behest of the State of Vermont show that, when 
intrusion is deliberate, the ability of near-surface facilities to 
properly provide isolation for all of the currently classified LLW 
streams is questionable.
    3. The petitioner states that because most currently planned LLW 
facilities are using an engineered structure to isolate the waste, the 
cost differential between shallow-land burial facilities, assumed in 
the EIS, and a geologic repository (for high-level waste) has 
significantly changed since promulgation of 10 CFR part 61. Because 
cost considerations were a factor in the development of the waste 
classification system, a supplemental EIS is needed.

Public Comments on the Petition

    The notice of receipt of petition for rulemaking invited interested 
persons to submit written comments concerning the petition. The NRC 
received 14 comment letters. Three comment letters were received from 
States (two from Vermont), three from private organizations, three from 
associated industries (including one disposal site operator), three 
from private individuals, one from a university, and one from the 
Department of Energy. The comments generally focussed on the main 
elements of the petition--revision of the 10 CFR part 61 waste 
classification system and the petitioner's rationale for this change. 
In addition, the Commission received responses from the petitioner on 
many of the points raised by the commenters. The comments and responses 
were reviewed and considered in the development of NRC's decision on 
this petition. These comments and responses are available in the NRC 
Public Document Room. Following is a summary of the significant 
comments.
    Four of the commenters supported this petition for rulemaking. They 
supported the concept of changing the classification system to restrict 
the more hazardous components of currently defined LLW, although not 
necessarily in the same way as proposed in the petition.
    One commenter stated that the definitions of LLW and high-level 
radioactive waste should be changed to essentially require that waste 
which presents a potential hazard after 100 years be defined as high-
level radioactive waste. Disposal of such newly defined high-level 
radioactive waste would be the responsibility of the Federal 
government.
    A second commenter believes that the bases for developing the part 
61 classification system are not conservative, and therefore, the 
petition should be accepted to protect the public from disposal of 
waste containing long-lived radionuclides.
    A third commenter believes that restricting the longevity hazard 
(long-lived radionuclides) would increase public acceptance of LLW 
disposal facilities and eliminate program delays.
    The fourth commenter, the Vermont Department of Public Service, 
believes that the classification system should be revised to reclassify 
non-fuel reactor components as greater than Class C. It is stated that 
these components, in Vermont, produce 99 percent of the activity, while 
comprising less than one-half of one percent of the volume. These 
components are easily segregated, and can be stored in spent fuel 
pools. The commenter believes the reclassification ``could assist the 
State processes established by the Low-Level Radioactive Waste Policy 
Amendments Act of 1985.''
    The other ten commenters believe that granting the petition would 
not only be unwarranted, as the petitioner has not made a justifiable 
case for changing the waste classification system, but would also cause 
significant and unnecessary problems for the disposal of LLW. Problems 
cited include major uncertainty and delay while the NRC was developing 
a new rule, the creation of ``orphan'' wastes that would not be 
acceptable at LLW sites, and the inaccurate use of existing 
information. For example, the petitioner refers to a study by Rogers 
and Associates Engineering Corporation (RAE) prepared for the Vermont 
Low-Level Radioactive Waste Authority. Several commenters, including 
RAE and the Vermont Low-Level Radioactive Waste Authority, commented 
that the petitioner has incorrectly used the results of this study to 
assess facility performance and that this study does not support the 
petitioner's request.
    The commenters argued that 10 CFR part 61, and supporting 
documentation, provide a sound regulatory basis for protection of 
public health and safety and that the petitioner has not provided any 
new significant information to justify changing the current rules. 
These commenters further argued that the petitioner is inappropriately 
applying requirements in 10 CFR part 20 to potential intruder exposures 
at a closed disposal site. They noted that Part 20 limits, and the 
international recommendations upon which they are based, are regulatory 
dose limits for routine exposures and are not uniquely pertinent to 
accidents, inadvertent intrusion, or other hypothetical events.
    Some commenters also took exception to the petitioner's goal of 
protecting against willful, purposeful, or intentional intrusion 
instead of the inadvertent intruder. They stated that to protect 
against deliberate misuse of disposed waste would be unnecessarily 
conservative and unwarranted. One commenter noted that mining 
activities on a previously closed LLW disposal site (an activity 
postulated by the petitioner) would constitute possession of source, 
byproduct, or special nuclear material and would be regulated under the 
statutory basis of the Atomic Energy Act of 1954, as amended.
    Several commenters were concerned that a revised classification 
system would generate an ``orphan'' class of waste. These wastes would 
not be accepted at an LLW site and would have to be stored, pending 
disposal at a high-level waste or other appropriate facility, resulting 
in additional radiation exposure due to the extra handling and storage 
required. These commenters stated that the current classification 
system provides an adequate level of protection of public health and 
safety.
    Other commenters believe that revising the classification system 
unnecessarily would be extremely disruptive until new regulations were 
finalized.
    Finally, several commenters did not see a need to develop a 
supplemental EIS because in their view no significant new information 
has been provided.

Reasons for Denial

    The NRC is denying the petition for the following reasons:
    1. The NRC believes that the petitioner is incorrect in asserting 
that recommendations by international and national standards 
organizations (the International Committee on Radiological Protection 
(ICRP) and the National Council on Radiation Protection and 
Measurements (NCRP)) on public dose limits applicable to licensee 
operations should also be applied to hypothetical inadvertent intrusion 
at a closed LLW facility. In fact, the ICRP1 distinguishes between 
limits for the conduct of operations where exposures might be expected 
and the approach to be taken for ``potential exposures,'' which are 
hypothetical or postulated. The new 10 CFR Part 20 limit was adopted to 
impose restrictions on the releases from currently operating licensed 
facilities or on the ways that current licensees conduct operations. In 
contrast to this, the LLW classification system specifically addressed 
limiting potential exposures to an inadvertent intruder who might 
hypothetically pursue activities at a closed LLW disposal facility 
following loss of institutional control. Inadvertent intrusion is a 
hypothetical exposure scenario evaluated in the EIS to support the 
concentration limits for classifying radioactive wastes. It is a 
separate and different evaluation from the evaluation performed under 
Sec. 61.41 to demonstrate protection of the general population from 
releases of radioactivity. The NRC's calculations, based on 
conservative assumptions about intrusion activities, demonstrated that 
if inadvertent intrusion were to occur, the one or few individuals 
involved might receive radiation exposure of the order of 200 mrem, 
well below 500 mrem per year goal selected as the dose rate limitation 
guideline.
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    \1\ Annals of the ICRP, ICRP Publication 60, ``1990 
Recommendations of the International Commission on Radiological 
Protection,'' Volume 21, pages 25-49 and 70-77.
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    In its final EIS, as noted by the petitioner, the NRC summarized 
the rationale for retaining the 500 mrem limitation guideline as 
follows:

    NRC's selection of the 500 mrem limit was based on (1) public 
opinion gained through the four regional workshops held on the 
preliminary draft of Part 61; (2) its acceptance by national and 
international standards organizations (e.g., ICRP) as an acceptable 
exposure limit for members of the public; and (3) the results of 
analyses presented in Chapter 4 of the draft EIS.2

    \2\ Final Environmental Impact Statement on 10 CFR part 61 
``Licensing Requirements for Land Disposal of Radioactive Waste,'' 
November 1992, NUREG-0945, Vol. 2, page B-41, (response to issue C-
4).
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    However, a fuller explanation for having selected this dose 
limitation guideline can be found in the Draft Environmental Impact 
Statement (DEIS) on 10 CFR part 61 (NUREG-0782, Vol. 1)3. At that 
time, three candidate values of different order of magnitude were under 
consideration; 25 mrem per year, 500 mrem per year, and 5000 mrem per 
year. While noting the similarity of the selected value to the then 
current effective public dose limit in 10 CFR part 20, the DEIS went on 
to explain the considerations for selection. Selection of the 25 mrem 
per year value would likely have resulted in considerably more costs, 
more changes in existing practices and greater reduction in disposal 
efficiency than the other two candidates. This was cited as 
``especially important considering the hypothetical nature of the 
intrusion event.'' The 5000 mrem per year alternative was seen to 
involve approximately the same costs and impacts as the 500 mrem per 
year alternative. The higher value was considered to potentially result 
in allowing disposal of larger quantities of long-lived isotopes, which 
could result in moderately higher intruder hazards extending for long 
time periods. Therefore, 500 mrem per year was selected as a general 
dose rate limitation guideline for the inadvertent intruder.
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    \3\ Copies of NUREGs may be purchased from the Superintendent of 
Documents, U.S. Government Printing Office, P. O. Box 37082, 
Washington, DC 20013-7082. Copies are also available from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, Va. 22161. A copy is also available for inspection and/
or copying at the NRC Public Document Room, 2120 L Street, NW. 
(Lower Level), Washington, DC.
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    In the final EIS, the NRC noted that the EPA, in commenting on the 
DEIS and the proposed 10 CFR part 61, stated that it was not 
appropriate to include a dose limit for intrusion in the regulations 
because the licensee would not be able to monitor or demonstrate 
compliance with a dose limit related to an event which might occur 
hundreds of years in the future. Consequently, the final rule for 10 
CFR part 61 did not include a dose limit for inadvertent intrusion. 
However, provisions, including waste classification, were included in 
the final rule to reduce the likelihood and magnitude of exposures to 
potential intruders.
    Finally, as noted above, ICRP distinguishes between limits for the 
conduct of operations where exposures might be expected and the 
approach to be taken for ``potential exposures,'' which are 
hypothetical or postulated. In the former case, the ICRP proposed 
imposition of dose limits but in the latter case recommended that the 
probability of postulated events or scenarios be considered along with 
their consequences. The ICRP noted that the initial focus in 
controlling the consequences of potential or postulated events should 
be ``prevention,'' that is, by incorporating provisions to reduce the 
probability of the postulated events which may lead to radiation 
exposures. The existence of multiple controls in the final rule to 
reduce the likelihood of exposures to postulated inadvertent intruders 
at closed LLW sites was, and continues to be, wholly consistent with 
the ICRP perspective. These multiple controls are specifically 
identified or included in Secs. 61.7, 61.12, 61.14, 61.42, 61.52, and 
61.59 and are intended to prevent inadvertent intrusion and to reduce 
potential exposure if intrusion were to occur.
    For these reasons, the NRC does not believe that the current ICRP 
or NCRP recommendation that the public dose limit be 100 mrem per year 
constitutes new information which would warrant modifying these 
regulations. The NRC believes that the provisions of 10 CFR part 61 
provide an acceptable level of protection to the public and the 
inadvertent intruder.
    2. The NRC believes that the petitioner has not provided adequate 
information to justify considering ``deliberate'' intrusion scenarios. 
The NRC believes that to protect against deliberate intrusion would be 
unnecessarily conservative and unwarranted. The NRC regulations 
currently include provisions to protect against intrusion by, for 
example, requiring government land ownership, records, and the use of 
markers. In order to deliberately intrude into the LLW site, an 
individual will have to break the law and overlook the hazard. In the 
development of 10 CFR part 61, the NRC stated, ``* * * it would appear 
to be difficult to establish regulations designed to protect a future 
individual who recognizes a hazard but then chooses to ignore the 
hazard.''4
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    \4\Draft Environmental Impact Statement on 10 CFR part 61 
``Licensing Requirements for Land Disposal of Radioactive Waste,'' 
September 1981, NUREG-0782, Volume 2, page 4-3.
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    The NRC also believes the likelihood of deliberate intrusion is 
very small. Deliberate intruders would have to ignore the hazard 
information on markers. The future value of LLW as a material cannot be 
accurately assessed, but the NRC believes that its value would be 
unlikely to warrant illegal actions that in themselves would be 
hazardous, and would require a significant amount of time and effort. 
If the value of LLW were to become significant, then it is likely that 
responsible institutions would assess risks and would make rational 
decisions regarding use or control of the site. Although the NRC is not 
relying on institutional controls beyond 100 years, the NRC believes 
that relevant records will be preserved, and remain accessible for 
hundreds of years after closure. This would reduce the likelihood and 
level of exposure of inadvertent or deliberate intrusion. For example, 
if intrusion did not occur until 500 years after closure, the exposure 
would be limited to a few mrem as calculated in the EIS. The NRC, 
therefore, believes that its current treatment of intrusion continues 
to reflect a rational and acceptable approach. The NRC current 
regulations provide reasonable assurance of protection against an 
inadvertent intruder. And while not directly protecting against the 
deliberate intruder, the NRC believes that such an intrusion is 
unlikely to happen, therefore, the risk is very small.
    3. The NRC believes that the petitioner's request for a 
supplemental EIS, due to increased costs of current disposal plans 
(including engineered structures), is not valid for several reasons. 
First, the NRC considered a range of different disposal options and 
costs, including the use of engineered barriers and structures, in the 
development of 10 CFR part 61. Shallow-land burial, as had been 
practiced at commercial disposal sites, was considered as the base case 
for analysis. Two improved shallow-land disposal alternatives were also 
considered. The use of engineered barriers was anticipated and included 
in cost impact analyses as the upper bound alternative. Second, 
although the petitioner is correct in stating that LLW disposal costs 
for new facilities have significantly increased since promulgation of 
the rule, so have the expected costs for other potential methods of 
waste disposal, including geologic disposal, referred to by the 
petitioner. Third, as noted by one of the commenters, much of the 
increased cost for new LLW disposal facilities is independent of the 
disposal technology used. That is, the increased costs for site 
characterization, licensing, public involvement, and administration for 
all disposal sites would tend to minimize long-term cost differentials 
between shallow-land burial with and without engineered structures. The 
petitioner is erroneously asserting that costs were a prime 
consideration in the selection of the waste classification system. 
Although costs were considered in the EIS, the NRC principally looked 
to identify and implement improvements in the disposal of LLW, such as 
the development of the waste classification system, to help ensure 
adequate protection of the public health and safety and the 
environment. The costs of developing and constructing a facility were 
not the prime consideration.
    In addition to the three reasons above, the NRC has also 
qualitatively considered the effect of imposing a classification system 
as indicated in the petition. The benefit would be to reduce the 
potential radiation exposure of a very small number of individuals 
after the end of the institutional control period. A realistic estimate 
of the benefit, as shown in the EIS, would be a 100 mrem reduction in 
dose (from 200 mrem to 100 mrem per year) to one or a few individuals 
per site, 100 years after closure. To maximize the benefit, the 
intrusion would need to occur relatively shortly after the end of the 
institutional control period, since the 100 mrem difference between the 
existing classification system and that suggested by the petitioner 
becomes smaller with time. As discussed earlier, as the time period 
increases beyond 100 years to 500 years, potential exposures reduce to 
only a few mrem for the existing classification system.
    Not only are the perceived benefits exceedingly small, but if a 
revised classification system were imposed, the NRC believes that it 
would result in significant negative impacts. First, it would take 
years to revise the waste classification regulations. During this time, 
current efforts by the States and compact organizations to develop LLW 
facilities could be severely impacted as they would not know what waste 
would be acceptable in a LLW facility. Second, as provided in the Low-
Level Radioactive Waste Policy Amendments Act of 1985, States will 
continue to be responsible to provide for disposal of waste that is 
classified A, B, and C under the existing classification system in 10 
CFR part 61. If a new classification system were developed that 
resulted in some currently acceptable waste being unacceptable for a 
LLW facility, either Congressional action would be necessary to change 
the Act to make the Federal Government responsible for the waste or the 
States would be forced to develop alternative methods to dispose of 
this new class of waste. And third, additional operational exposures 
could be expected to occur as specific waste would need to be 
segregated, handled, treated, stored, and transported while awaiting 
alternative disposal facilities.
    In sum, no new significant information has been provided by the 
petitioner that would call into question the basis for, or conclusion 
of, the final EIS. On the other hand, in a qualitative analysis, it is 
clear that granting the petition would result in significant negative 
impacts relative to the small potential reduction in intruder 
exposures. Therefore, a supplemental EIS is not needed.
    For reasons cited in this document, the NRC denies the petition.

    Dated at Rockville, Maryland, this 29th day of March 1994.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 94-8546 Filed 4-8-94; 8:45 am]
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