[Federal Register Volume 67, Number 22 (Friday, February 1, 2002)]
[Notices]
[Pages 5003-5012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2373]


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NUCLEAR REGULATORY COMMISSION


Decommissioning Criteria for the West Valley Demonstration 
Project (M-32) at the West Valley Site; Final Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Final policy statement.

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SUMMARY: On December 3, 1999 (64 FR 67952), the Commission issued, for 
public comment, a draft policy statement that would approve the 
application of the U.S. Nuclear Regulatory Commission's (NRC's) License 
Termination Rule (LTR), as the decommissioning criteria for the West 
Valley Demonstration Project (WVDP) at the West Valley site. It also 
held a public meeting, on January 5, 2000, to solicit public comment on 
the draft. This final policy statement was developed after considering 
public comments on the draft, and continues to apply the LTR as the 
criteria for the WVDP at the West Valley site.

EFFECTIVE DATE: February 1, 2002.

FOR FURTHER INFORMATION, CONTACT: Chad Glenn, Office of Nuclear 
Material Safety and Safeguards, Mail Stop T-8F37, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background (Draft Policy Statement)
III. Overview of Public Comments
IV. Summary of Public Comments and Responses to Comments
    A. Comments on the LTR
    B. Comments on LTR guidance
    C. Comments on implementing the LTR
    D. Comments on NRC's process for prescribing the decommissioning 
criteria
    E. Comments on jurisdictional aspects of prescribing the 
decommissioning criteria
    F. Comments on the use of incidental waste criteria at the West 
Valley site
    G. Comments related to how the site should be decommissioned
    H. Comments on the wording of the draft policy statement
    I. Other comments
V. Final Policy Statement

I. Introduction

    This final policy statement is being issued under the authority of 
the WVDP Act, to prescribe decommissioning criteria for the WVDP.

II. Background (Draft Policy Statement)

    From 1966 to 1972, under an Atomic Energy Commission (AEC) license, 
Nuclear Fuel Services (NFS) reprocessed 640 metric tons of spent fuel 
at its West Valley, New York, facility--the only commercial spent fuel 
reprocessing plant in the U.S. The facility shut down, in 1972, for 
modifications to increase its seismic stability and to expand its 
capacity. In 1976, without restarting the operation, NFS withdrew from 
the reprocessing business and returned control of the facilities to the 
site owner, the New York State Energy Research and Development 
Authority (NYSERDA). The reprocessing activities resulted in about 2.3 
million liters (600,000 gallons) of liquid high-level waste (HLW) 
stored below ground in tanks, other radioactive wastes, and residual 
radioactive contamination.
    The West Valley site was licensed by AEC, and then NRC, until 1981, 
when the license was suspended to execute

[[Page 5004]]

the 1980 WVDP Act, Pub. L. 96-368.\1\ The WVDP Act authorized the U.S. 
Department of Energy (DOE), in cooperation with NYSERDA, the owner of 
the site and the holder of the suspended NRC license, to: (1) Carry out 
a liquid-HLW management demonstration project; (2) solidify, transport, 
and dispose of the HLW that exists at the site; (3) dispose of low-
level waste (LLW) and transuranic waste produced by the WVDP, in 
accordance with applicable licensing requirements; and (4) 
decontaminate and decommission facilities used for the WVDP, in 
accordance with requirements prescribed by NRC. NYSERDA is responsible 
for all site facilities and areas outside the scope of the WVDP Act. 
Although NRC suspended the license covering the site until completion 
of the WVDP, NRC has certain authorities, under the WVDP Act, that 
include prescribing decommissioning criteria for the tanks and other 
facilities in which the HLW solidified under the project was stored, 
the facilities used in the solidification of the waste, and any 
material and hardware used in connection with the WVDP. It should also 
be noted that DOE is not an NRC licensee and DOE's decommissioning 
activities for the WVDP at the West Valley site are conducted under the 
WVDP Act and not the Atomic Energy Act (AEA).
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    \1\ The State of New York licenses a low-level waste disposal 
area at the West Valley site. Unless otherwise indicated, the terms 
``West Valley site'' or ``site'' used in this Policy Statement 
refers to the NRC-licensed portions of the site.
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    The WVDP is currently removing HLW from underground tanks at the 
site, vitrifying it, and storing it onsite for eventual offsite 
disposal in a Federal repository. The vitrification operations are 
nearing completion. In addition to the vitrified HLW, the WVDP 
operations have also produced LLW and transuranic waste which, under 
the Act, must be disposed of in accordance with applicable licensing 
requirements. Besides the HLW at the site, the spent fuel reprocessing 
and waste disposal operations resulted in a full range of buried 
radioactive wastes and structural and environmental contamination at 
the site.
    In 1989, DOE and NYSERDA began to develop a joint Environmental 
Impact Statement (EIS) for project completion and site closure, and to 
evaluate waste disposal and decommissioning alternatives. Because the 
WVDP Act authorizes NRC to prescribe decommissioning criteria for the 
project, NRC and DOE agreed on NRC's participation as a cooperating 
agency on the EIS, with DOE and NYSERDA, to aid NRC in its decision on 
decommissioning criteria. The draft EIS was published in 1996. 
Subsequently, DOE decided to descope this EIS into two separate EISs to 
address: (1) Near-term decontamination and waste management at the 
WVDP; and (2) decommissioning, long-term monitoring, and stewardship of 
the site.\2\ The NRC will not be a Cooperating Agency on the 
decontamination and waste management EIS because the Commission is not 
prescribing criteria for decontamination activities considered in this 
EIS. The NRC will be a Cooperating Agency on the EIS for 
decommissioning under the WVDP Act. The WVDP Act does not address 
license termination of the NRC license for the site, or portions 
thereof. Any such license termination will be conducted (if license 
termination is possible and pursued) under the Atomic Energy Act (AEA) 
of 1954, as amended. If NYSERDA pursues either full or partial license 
termination of the NRC license, NRC will need to conduct an 
environmental review to determine if an EIS is necessary to support 
license termination.
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    \2\ 66 FR 16447 (March 26, 2001).
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    After public review of the draft EIS, the WVDP convened the West 
Valley Citizen Task Force (CTF), in early 1997, to obtain stakeholder 
input on the EIS. The CTF recommendations for the preferred alternative 
in the EIS were completed in July 1998. In the latter half of 1997 
(during the period that the CTF was working on its recommendations), 
NRC's LTR was published (62 FR 39058; July 21, 1997).
    The Commission published a draft policy statement on 
decommissioning criteria for the WVDP at the West Valley site, for 
public comment, and a notice of a public meeting in the Federal 
Register on December 3, 1999 (64 FR 67952).\3\ The public meeting, to 
solicit public comment on the draft, was held on January 5, 2000. As a 
result of that meeting, the Commission extended the comment period to 
April 1, 2000. This final policy statement was developed after 
considering the public comments on the draft. This final policy 
statement recognizes that a flexible approach to decommissioning is 
needed both to ensure that public health and safety and the environment 
are protected and to define a practical resolution to the challenges 
that are presented by the site. In that regard, the Commission has 
decided to prescribe the LTR criteria for the WVDP at the West Valley 
site, reflecting the fact that the applicable decommissioning goal for 
the entire NRC-licensed site is compliance with the requirements of the 
LTR. However, the Commission recognizes that health and safety and 
cost-benefit considerations may justify the evaluation of alternatives 
that do not fully comply with the LTR criteria. For example, the 
Commission would consider an exemption allowing higher limits for doses 
on a failure of institutional control if it can be rigorously 
demonstrated that protection of the public health and safety for future 
generations could be reasonably assured through more robust engineered 
barriers and/or increased long-term monitoring and maintenance. The 
Commission is prepared to provide flexibility to assure cleanup to the 
maximum extent technically and economically feasible.
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    \3\ Before issuing the draft policy statement for comment, the 
NRC staff proposed decommissioning criteria for West Valley to the 
Commission in a Commission Paper entitled ``Decommissioning Criteria 
for West Valley,'' dated October 30, 1998 (SECY-98-251). On January 
12, 1999, the Commission held a public meeting, on SECY-98-251, to 
obtain input from interested parties. Based on the results from this 
meeting, the Commission issued a Staff Requirements Memorandum 
(SRM), on January 26, 1999, requesting additional information on the 
staff's proposed decommissioning criteria for West Valley. In 
response to the January 26, 1999, SRM, the staff provided SECY-99-
057, to the Commission, entitled ``Supplement to SECY-98-251, 
`Decommissioning Criteria for West Valley.' '' Based on the contents 
of SECY-98-251, SECY-99-057, and written and oral comments from 
interested parties, the Commission issued an SRM on June 3, 1999, 
detailing its decisions on the decommissioning criteria for West 
Valley.
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    It should be noted that the subpart E of 10 CFR part 20 (LTR) does 
contain provisions for alternate criteria and subpart N of 10 CFR part 
20 contains provisions for potential exemptions,\4\ with both 
alternatives based on a site-specific analysis which demonstrates that 
public health and safety will be adequately protected with reasonable 
assurance. If the NRC license cannot be terminated in a manner which 
provides reasonable assurance of adequate protection of the public 
health and safety, then the appropriate Commission action may be to 
require a long term or even a perpetual license for an appropriate 
portion of the site until, if and when possible, an acceptable 
alternative is developed to permit actual license termination.\5\
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    \4\ Exemptions to NRC regulations can be issued to NRC licensees 
if the Commission determines that the exemption is authorized by law 
and would not result in undue hazard to life or property. NYSERDA is 
the licensee for the West Valley site and DOE is acting as a 
surrogate for NYSERDA until the NYSERDA license is reinstated at the 
end of the WVDP.
    \5\ If a long term or perpetual license is necessary for any 
portion of the site, it is the Commission's intent that that portion 
of the site will be decontaminated in the interim to the extent 
technically and/or economically feasible. In addition, if a long-
term or perpetual license is determined to be appropriate, the NRC 
takes no position on which entity should be the long-term licensee 
as that decision, as well as decisions regarding long term financial 
contributions, should be made pursuant to negotiations involving 
DOE, New York, and possibly the U.S. Congress. Also, under the WVDP 
Act, the NRC is only addressing the public health and safety aspects 
of decommissioning selected portions of the site. Other potential 
issues between DOE and NYSERDA concerning the West Valley Site are 
not within NRC's authority to resolve.

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[[Page 5005]]

    Based on the public comments received, the Commission has revisited 
the issue of ``incidental waste'' at West Valley. The Commission has 
decided to issue incidental waste criteria to clarify the status of and 
classify any residual wastes present after cleaning of the high-level 
radioactive waste (HLW) tanks at West Valley. Previously, the NRC has 
provided advice to DOE concerning DOE's classification of certain waste 
as incidental waste for clean-up of HLW storage tanks at both Hanford 
and Savannah River. As noted above, NRC intends to apply the LTR 
decommissioning criteria as the decommissioning goal for the entire 
NRC-licensed portion of the site. The Commission has decided that the 
most recent advice provided to DOE for the classification of incidental 
waste at Savannah River, with some additional modifications, provides 
the appropriate criteria which should be applied to West Valley. 
Specifically, the Commission is now providing the following criteria 
for classification of the incidental waste (which will not be deemed to 
be HLW) at West Valley:
    (1) The waste should be processed (or should be further processed) 
to remove key radionuclides to the maximum extent that is technically 
and economically practical; and
    (2) The waste should be managed, so that safety requirements 
comparable \6\ to the performance objectives in 10 CFR part 61 subpart 
C, are satisfied.
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    \6\ The dose methodology used in 10 CFR part 61 subpart C is 
different from that used in the newer 10 CFR part 20 subpart E. 
However, the resulting allowable doses are comparable and NRC 
expects DOE to use the newer methodology in 10 CFR part 20 subpart 
E. Part 61 is based on International Commission on Radiological 
Protection Publication 2 (ICRP 2) and part 20 is based on ICRP 26.
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    Consistent with the overall approach in applying the LTR to the 
WVDP and to the entire NRC-licensed site following conclusion of the 
WVDP, the resulting calculated dose from the incidental waste is to be 
integrated with all the other calculated doses from the residual 
radioactive material at the NRC-licensed site to ensure that the LTR 
criteria are met. This is appropriate because the Commission does not 
intend to establish separate dose standards for various sections of the 
NRC-licensed site.\7\
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    \7\ Applying the LTR, the total annual dose to an average member 
of the critical group for the site, including the resulting does 
from the incidental waste, should be less than or equal to 25 mrem/
yr TEDE. The Commission is not establishing a separate dose standard 
for the incidental waste such that the average member of the 
critical group potentially receive a dose of 25 mrem/yr TEDE from 
the rest of the NRC-licensed site and 25 mrem/yr TEDE from the 
incidental waste.
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III. Overview of Public Comments

    Twenty-eight organizations and individuals submitted written 
comments on the draft policy statement. Comments also were provided at 
the public meeting held on January 5, 2000. The commenters represented 
a variety of interests. Comments were received from Federal and State 
agencies, citizen and environmental groups, a native American 
organization, and individuals. The commenters offered over 200 specific 
comments and represented a diversity of views. The commenters addressed 
a wide range of issues concerning the decommissioning and closure of 
the WVDP and West Valley site. The reaction to the draft policy 
statement was generally supportive. However, viewpoints were expressed 
on the LTR and LTR guidance and how both should be applied at West 
Valley. In addition, there were comments on NRC's process for 
prescribing the decommissioning criteria and other issues specific to 
West Valley.

IV. Summary of Public Comments and Responses to Comments

    The following sections A through I represent major subject areas 
and describe the principal public comments received on the draft policy 
statement (organized according to the major subject areas) and present 
NRC responses to those comments.
    (A) Comments on the LTR (restricted release; institutional 
controls; as low as reasonably achievable (ALARA); financial assurance; 
alternate criteria; time line for dose calculations);
    (B) Comments on LTR guidance (critical group, engineered barriers, 
cost/benefit analysis);
    (C) Comments on implementing the LTR (continued Federal or State 
onsite presence, perpetual license);
    (D) Comments on NRC's process for prescribing the decommissioning 
criteria (when to prescribe the criteria; use of the LTR ``Generic 
Environmental Impact Statement'' (GEIS) to support the use of the LTR 
at West Valley; NRC's National Environmental Policy Act (NEPA) 
obligation for prescribing the West Valley decommissioning criteria);
    (E) Comments on jurisdictional aspects of prescribing the 
decommissioning criteria;
    (F) Comments on the use of incidental waste criteria at West 
Valley;
    (G) Comments related to how the site should be decommissioned 
(waste disposition, consideration of pathways for dose, and contaminant 
transport);
    (H) Comments on the wording of the draft policy statement (use of 
the word ``prescribe,'' paraphrasing the LTR and other statements on 
West Valley); and,
    (I) Other comments (implications of the policy statement regarding 
native Americans, transuranic waste issue).
    The comments received from the public in writing during the comment 
period and verbally during the January 5, 2000, public meeting have 
been factored into the Commission's decision-making on this final 
policy statement.

A. Comments on the LTR

    The draft policy statement presented NRC's LTR as the 
decommissioning criteria for the WVDP and the West Valley site. 
Although there was general support for the use of the LTR as the 
decommissioning criteria for both the WVDP and West Valley site, there 
were a number of comments on the LTR. Specifically:
    A.1  Comment. A number of commenters were concerned that the use of 
the LTR's restricted release concept, which includes the use of 
institutional controls, to decommission West Valley may not be 
appropriate because of the magnitude of the waste currently on-site and 
the potential for this waste to provide an unacceptable dose to members 
of the public if controls fail.
    A. 2  Response. The LTR criteria consider doses to members of the 
public from the loss of institutional controls. The loss of 
institutional controls will need to be considered in the DOE/NYSERDA 
EIS.\8\ Absent an exemption from the LTR provision in 10 CFR part 20, a 
site, or part thereof, that cannot meet the restricted release 
provisions of the LTR, must remain under an NRC license. The Commission 
will consider

[[Page 5006]]

granting an exemption to the LTR criteria if it determines the 
exemption is authorized by law and would not result in undue hazard to 
life or property. The Commission intends to involve the public in the 
processing of any exemption request consistent with the ``public 
participation'' provision in 10 CFR 20.1405, and will involve the 
Environmental Protection Agency (EPA) if the exemption request involves 
criteria greater than the dose criteria of 10 CFR 20.1402, 20.1403(b), 
or 20.1403(d)(1)(i)(A). Such an exemption request will also require the 
approval of the Commission consistent with 10 CFR 20.1404(b).
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    \8\ DOE has decided to descope the draft 1996 EIS into two 
separate EISs. DOE will be the lead agency on the EIS that will 
address WVDP facility decontamination and management of waste 
currently stored at the site. NRC expects to be kept informed of 
progress as required under the DOE/NRC Memorandum of Understanding 
(MOU). DOE and NYSERDA will be the lead agencies on the EIS that 
will address decommissioning. NRC expects to participate as an EIS 
cooperating agency. Hereafter, this second EIS where NRC will be a 
cooperating agency will either be referred to as the decommissioning 
EIS or the DOE/NYSERDA EIS, unless otherwise noted.
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    A. 3  Comment. Some commenters also were concerned about the 
adequacy of the LTR's financial assurance requirements for maintaining 
institutional controls for restricted release at West Valley, 
especially if the financial assurance relies on future Government 
appropriations that are not guaranteed.
    A. 4  Response. In general, it is assumed that when a Government 
agency certifies that it will seek appropriations, to maintain 
institutional controls for the purposes of protecting public health and 
safety, the appropriations will be authorized. The Commission believes 
that it is reasonable to expect Federal and State agencies to meet 
their commitments to obtain funding for institutional controls to 
provide for the protection of the public health and safety.
    A. 5  Comment. A number of commenters were also concerned that the 
time line specified for dose calculations in the LTR (1000 years) is 
too short for difficult sites like West Valley.
    A. 6  Response. In the development of the LTR, the Commission 
considered comments seeking a time period for dose analysis longer than 
1000 years. Section F.7 in the LTR ``Statement of Considerations,'' 62 
FR 39058 (July 21, 1997). The Commission concluded that for the types 
of facilities and source terms considered, it was reasonable to use a 
1000-year period. However, the West Valley site presents some unique 
challenges in that significant quantities of mobile, long-lived 
radionuclides are present on site. Because under NEPA an evaluation of 
reasonably foreseeable impacts is required, the Commission believes 
that an analysis of impacts beyond 1000 years should be provided in the 
DOE/NYSERDA EIS. Thus, information will need to be evaluated to 
determine if peak doses might occur after 1000 years and to define dose 
consequences and impacts on potential long-term management of residual 
radioactivity at the site. Depending upon the outcome of the EIS 
review, the Commission may need to consider the need for environmental 
mitigation.
    A. 7  Comment. Some commenters were concerned about the possible 
application of alternate criteria, as allowed under the LTR, to West 
Valley, or that the policy statement should at least clearly identify 
the dose limit cap under alternate criteria.
    A. 8  Response. In addition to the unrestricted release limit of 25 
mrem/yr TEDE, the LTR also contains alternate criteria for restricted 
release, which allows for a dose limit of up to 100 mrem/yr TEDE, with 
restrictions in place, and caps the public dose limit at 100 or 500 
mrem/yr TEDE if the restrictions fail. Applying alternate criteria to a 
specific site requires opportunities for public involvement, 
coordination with the EPA, and direct approval of the Commission. The 
alternate criteria in the LTR were developed for difficult sites to 
minimize the need to consider exemptions to the LTR, although 
exemptions also may be considered. Under appropriate circumstances and 
based on a site-specific analysis, the Commission considers the 
application of alternate criteria protective of public health and 
safety. Absent a detailed site-specific analysis, it is premature for 
the Commission to make any judgments, at this time, on the 
acceptability or non-acceptability of applying alternate criteria or 
exemptions to the WVDP or any portion of the NRC-licensed site. In any 
event, neither the alternate criteria in the LTR nor exemptions will be 
approved by the Commission without full prior public participation, 
involvement of the EPA, and a Commission determination that there is 
reasonable assurance that there would not be undue hazard to life and 
property.
    A. 9  Comment. There were also comments about the use of the ALARA 
process in the LTR at West Valley. Some believed that the ALARA process 
might be used to justify dose limits higher than those allowed by the 
LTR.
    A. 10  Response. As stated previously, the LTR does allow for 
releases with different dose limits. Generally, ALARA is used to reduce 
doses below authorized limits. Under the LTR, the ALARA process is not 
used to permit doses above the 25 mrem/yr TEDE limit without 
restrictions, the 100 mrem/yr TEDE limit with restrictions, or the 500 
mrem/yr TEDE cap if restrictions fail.

B. Comments on LTR guidance

    A variety of comments were received on NRC's LTR guidance as it 
relates to West Valley. Since the time that NRC's LTR became final in 
1997, the NRC staff has been developing guidance to support it. In 
September 2000, the NRC released guidance for decommissioning, in the 
form of a standard review plan (SRP) (``NMSS Decommissioning Standard 
Review Plan,'' NUREG-1727).
    B. 1  Comment. A number of commenters expressed concern with how 
the critical group would be defined for dose assessment purposes.
    B. 2  Response. For the LTR, the critical group means the group of 
individuals reasonably expected to receive the greatest exposure to 
residual radioactivity for any applicable set of circumstances (10 CFR 
20.1003). The ``Statement of Considerations'' for the LTR notes that 
the critical group would be the group of individuals reasonably 
expected to be the most highly exposed, considering all reasonable 
potential future uses of the site, based on prudently conservative 
exposure assumptions and parameter values within modeling calculations. 
NRC's SRP for decommissioning addresses two generic critical group 
scenarios--the ``resident farmer'' and the ``building occupancy'' 
scenarios. The SRP also presents approaches for establishing site-
specific critical groups based on specific land use, site restrictions, 
and/or site-specific physical conditions. DOE/NYSERDA derivation of the 
critical groups for West Valley will need to be addressed in the EIS 
documents. In addition to NRC review and comment, the EIS documents 
will be available for public review and comment.
    B. 3  Comment. There were also several comments relating concerns 
that long-term stewardship costs and impacts on special populations 
will not be properly factored into the cost/benefit analysis, or that 
there should be better guidance provided on what should be considered 
in the cost/benefit analysis.
    B. 4  Response. DOE and NYSERDA will determine the extent to which 
these issues are covered in the DOE/NYSERDA EIS. In addition, NRC will 
review and comment on any cost/benefit analysis in the EIS. The cost/
benefit analysis that DOE/NYSERDA develop for West Valley will need to 
be part of the EIS documents available for public review and comment.
    B. 5  Comment. Some commenters suggested that there should be 
criteria for what are allowable engineered

[[Page 5007]]

barriers and whether or not they are considered institutional controls.
    B. 6  Response. Because of the wide range of residual radioactive 
contamination encountered at decommissioning sites licensed by NRC, the 
LTR and NRC's decommissioning guidance are not prescriptive as to the 
criteria for, or acceptability of, site-specific institutional controls 
and engineered barriers. The ``Statement of Considerations'' for the 
LTR might be read to conclude that engineered barriers are included 
within institutional controls. However, neither term is defined. In the 
Commission's view, ``engineered barriers'' referred to in the 
``Statement of Considerations'' for the LTR are distinct and separate 
from institutional controls. Used in the general sense, an engineered 
barrier could be one of a broad range of barriers with varying degrees 
of durability, robustness, and isolation capability. Thus, NRC guidance 
in Appendix I of the SRP on the LTR distinguishes institutional 
controls from physical controls and engineered barriers. Institutional 
controls are used to limit intruder access to, and/or use of, the site 
to ensure that the exposure from the residual radioactivity does not 
exceed the established criteria. Institutional controls include 
administrative mechanisms (e.g., land use restrictions) and may 
include, but not be limited to, physical controls (e.g., signs, 
markers, landscaping, and fences) to control access to the site and 
minimize disturbances to engineered barriers. There must be sufficient 
financial assurance to ensure adequate control and maintenance of the 
site and institutional controls must be legally enforceable and the 
entity charged with their enforcement must have the capability, 
authority, and willingness to enforce the controls. Generally, 
engineered barriers are passive man-made structures or devices intended 
to improve a facility's ability to meet a site's performance 
objectives. Institutional controls are designed to restrict access, 
whereas engineered barriers are usually designed to inhibit water from 
contacting waste, limit releases, or mitigate doses to intruders. The 
isolation capability, durability, and robustness of a specific barrier 
will need to be evaluated in the DOE/NYSERDA EIS. The ability of a 
barrier to inhibit access of the inadvertent intruder is a separate 
issue from whether a barrier is an institutional control. The dose 
analyses for a site with engineered barriers will need to consider the 
reasonableness of a breach by an inadvertent intruder.

C. Comments on Implementing the LTR

    C. 1  Comment. There were some comments identifying who should be 
the long-term steward of the site if long-term stewardship is required 
as part of site closure. Some commenters also provided suggestions on 
how site long-term stewardship should be maintained at West Valley if 
it is needed (onsite staff, perpetual license).
    C. 2  Response. NRC expects that these site-specific issues will be 
covered in the DOE/NYSERDA EIS and addressed in the preferred 
alternative. The identification of a long-term custodian is not an NRC 
responsibility but will be determined from negotiations involving DOE 
and NYSERDA and possibly the U.S. Congress. From the NRC perspective, 
both DOE and NYSERDA represent governmental entities and either would 
be acceptable as a long-term custodian.
    C. 3  Comment. One commenter requested consideration of how the LTR 
would be implemented on the decommissioned portions of the site if 
there were areas of the site that could not meet the LTR.
    C. 4  Response. Although the LTR does not specifically address 
differing release standards on a single site, NRC recognizes that the 
approach to decommissioning at West Valley may include portions of the 
site being released for unrestricted use, and portions of the site 
being released for restricted use, as well as portions of the site 
remaining under license, because of a failure to meet the LTR. In the 
Commission's view, the LTR is sufficiently flexible to allow for such 
circumstances. In particular, the Commission believes that for those 
portions of the site that are unable to demonstrate compliance with the 
LTR's restricted release requirements, the dose limits should be viewed 
as goals in order to ensure that cleanup continues to the maximum 
extent that is technically and economically feasible. The Commission 
also believes that after cleanup to the maximum extent technically and 
economically feasible is accomplished, alternatives to release under 
the LTR criteria may need to be contemplated. Specific examples of 
these alternatives are a perpetual license for some parts of the site 
or exemptions from the LTR. The NRC expects that these issues will be 
fully addressed in the DOE/NYSERDA EIS.

D. Comments on NRC's Process for Prescribing the Decommissioning 
Criteria

    D.1.  DOE recommended, for the reasons described in comments D.1.1, 
D.1.3, and D.1.5 below, that NRC withhold assigning the LTR as the 
decommissioning criteria until NRC does a site-specific analysis of the 
environmental effects of decommissioning West Valley.
    D.1.1  Comment. The LTR GEIS (NUREG-1496) does not support the use 
of the LTR at a complex site like West Valley; therefore, a specific 
EIS for this action needs to be completed by NRC to finalize the 
criteria.
    D.1.2  Response. Although the LTR GEIS did not specifically address 
the decommissioning of a spent fuel reprocessing site, it did evaluate 
the decommissioning of a range of reference facilities (e.g., fuel 
cycle facilities and reactors). In promulgating the LTR, the Commission 
stated in Section VI of the ``Statement of Considerations'' that it 
will conduct an environmental review to ``determine if the generic 
analysis encompasses the range of environmental impacts at the 
particular site.'' The Commission further stated that it ``will conduct 
an independent environmental review for each site-specific 
decommissioning decision where land use restrictions or institutional 
controls are relied upon by the licensee or where alternative criteria 
are proposed'' as it recognized that the environmental impacts for 
these cases cannot be analyzed on a generic basis. Thus, the 
environmental impacts from the application of the criteria to the WVDP 
will need to be evaluated for the various alternative approaches being 
considered in the process before NRC decides whether to accept the 
preferred alternative for meeting the criteria permitted by the LTR. 
NRC expects to be able to rely on the DOE/NYSERDA EIS for this purpose. 
NRC does not anticipate the need to prepare its own duplicative EIS as 
NRC can consider the environmental impacts described in the DOE/NYSERDA 
EIS in approving the particular decommissioning criteria for the WVDP 
under the LTR. As an EIS cooperative agency, NRC may adopt all or parts 
of the lead EIS agency's NEPA documents. Under this arrangement, if NRC 
is satisfied with the final DOE/NYSERDA EIS, then NRC will adopt it to 
fulfill its NEPA responsibilities under the WVDP Act. If NRC is not 
satisfied with the final DOE/NYSERDA EIS, then it will adopt as much of 
it as possible and modify or supplement it as necessary. In such a 
situation, NRC would publish its own draft EIS document for public 
review and comment before finalizing it. Once finalized, NRC's West 
Valley NEPA responsibilities would be fulfilled under the WVDP Act.

[[Page 5008]]

    The WVDP Act does not address license termination for the site. The 
actual license termination for the site, if and when pursued, will be 
conducted under the Atomic Energy Act (AEA) of 1954, as amended. At the 
time of NRC license termination under the AEA (if license termination 
is pursued), NRC will need to conduct an environmental review to 
determine if an EIS is necessary to support license termination.
    D.1.3  Comment. The NRC's prescription of decommissioning criteria 
is not being coordinated with the current NEPA process as suggested by 
the DOE/NRC Memorandum of Understanding (MOU) on West Valley.
    D.1.4  Response. The process described in the DOE/NRC MOU (Section 
B (4)), for consulting on a site-specific analysis of decommissioning 
requirements was developed to allow DOE and NRC to evaluate a range of 
approaches to specifically address the decommissioning of the WVDP. 
Thereafter, NRC was to prescribe the decommissioning criteria. At the 
time the MOU was signed, no comprehensive general criteria existed for 
decommissioning NRC-licensed sites. Decommissioning criteria were 
determined on a case-by-case basis. However, through the rulemaking 
process completed in 1997, which promulgated the LTR, there was an 
evaluation of various regulatory approaches for decommissioning NRC-
licensed sites and the selection of a range of regulatory approaches 
with criteria, in the final rule.
    Except as provided in 10 CFR 20.1401, the LTR applies to all NRC's 
licensed sites. The Commission recognized, as noted in the ``Statement 
of Considerations'' for the LTR, that there would be sites with complex 
decommissioning issues that would be resolved by site-specific 
environmental reviews which considered various alternative methods for 
decommissioning and application of the LTR. In the Commission's view, 
the use of the two-step prescribing process--first, the decision to use 
the LTR, and second, to use the DOE/NYSERDA EIS, to consider the 
impacts of the different approaches for decommissioning, before 
deciding whether to accept the particular approach that DOE intends to 
use to meet the LTR--is consistent with the intent of the MOU that 
various approaches be analyzed in developing the WVDP decommissioning 
criteria.
    D.1.5  Comment. Finalizing the LTR now as the decommissioning 
criteria for the WVDP at the West Valley site limits the options for 
closure of the NRC-licensed Disposal Area (NDA).
    D.1.6  Response. The Commission does not believe that prescribing 
the LTR criteria for the WVDP at the West Valley site as the applicable 
decommissioning goal for the entire NRC-licensed site will limit DOE 
from developing acceptable closure options for the NDA or any other 
part of the NRC-licensed site. Prescribing the LTR now is warranted 
because NYSERDA, as a licensee of the Commission, is subject to the LTR 
after NYSERDA's NRC license is reactivated at the conclusion of the 
WVDP. It follows that DOE should also be subject to the LTR as it is 
the surrogate for NYSERDA in decommissioning facilities used for the 
project. Therefore, it is appropriate to prescribe the LTR now for the 
WVDP, with the site-specific decommissioning issues resolved through 
the process described in Response D.1.4 above. Applying the LTR to the 
WVDP will provide an opportunity to DOE, as would be given to any 
licensee, to consider a range of approaches to achieve acceptable 
decommissioning, consistent with public dose limits. If parts of the 
NRC-licensed site cannot meet the LTR, the Commission will consider 
alternatives to the criteria in the LTR if it can be demonstrated that 
public health and safety will be protected. The NRC expects that these 
issues will be fully addressed in the DOE/NYSERDA EIS.

E. Comments on Jurisdictional Aspects of Prescribing the 
Decommissioning Criteria

    E.1  Comment. Many commenters suggested that, because the State-
licensed Disposal Area (SDA) is immediately adjacent to the WVDP and 
part of the West Valley site, the allowable dose from the closure and/
or decommissioning of it should be considered comprehensively with the 
allowable dose from the NRC regulated part of the site.
    E.2  Response. NRC's authority only extends to the NRC-licensed 
portion of the site. It also should be noted that the LTR recognizes 
that people can be exposed to up to four sources of radiation and still 
meet the nationally and internationally accepted public dose limit of 
100 mrem/yr TEDE in part 20. In considering the environmental impacts 
for the entire site, the DOE/NYSERDA EIS will need to consider the 
number of sources to which the critical group may be exposed. However, 
NRC continues to dialogue with State representatives to exchange 
information on issues of mutual interest regarding potential sources of 
public exposure.
    E.3  Comment. A few comments were made indicating that NRC ought to 
prescribe the dose limits in EPA's decommissioning guidance to West 
Valley, because they are more protective and could be applied to the 
site after NRC regulatory authority ceases. Likewise, a comment was 
made that the decommissioning criteria issue between NRC and EPA should 
be resolved before the criteria are prescribed.
    E.4  Response. The Commission believes that the LTR dose limits 
plus ALARA requirements provide protection comparable to dose limits 
preferred by EPA in its guidance documents. The Commission notes that 
the LTR was promulgated by the Commission in 1997 pursuant to an 
Administrative Procedure Act rulemaking accompanied by a generic EIS 
and voluminous regulatory analysis, including consideration of numerous 
public comments. EPA's guidance documents have gone through no such 
public process. The Commission believes that decommissioning the site 
to the LTR criteria ensures that public health and safety and the 
environment will be protected. Although there is a lack of agreement 
between NRC's rule and EPA's guidance documents on the appropriate 
upper bounds on decommissioning criteria, the NRC practice of applying 
ALARA principles to NRC dose limits will most likely result in an NRC 
approved decommissioned site that satisfies the EPA criteria as well. 
In fact, EPA has indicated that it believes that the 25 mrem/yr TEDE 
cleanup dose limit in the LTR will be ``protective at this site.'' See 
Letter from Paul Giardina, EPA to John Greeves, NRC (July 23, 2001). 
Because the LTR requirements do ensure adequate protection of the 
public health and the environment, and, as indicated in the preceding 
paragraph, EPA agrees with this conclusion for West Valley, the 
Commission believes that it is not necessary to wait for a formal 
resolution of the differences between NRC and EPA on generic 
decommissioning standards before proceeding with prescribing site-
specific decommissioning criteria for the WVDP. As stated previously, 
EPA will be involved in any proposal to use alternate criteria in the 
LTR or exemptions from 10 CFR part 20, if so requested.

F. Comments on the Use of Incidental Waste Criteria at West Valley Site

    F.1  Comment. Many comments were received concerning the use of the 
incidental waste criteria at West Valley. Most commenters did not want 
NRC to allow for the ``reclassification'' of any HLW at this site to 
waste incidental to reprocessing. If it were allowed, it

[[Page 5009]]

should be done in a way that provides for public participation. One 
commenter agreed that it will have to be done, but that the Commission 
should prescribe the criteria that are necessary and appropriate for 
the incidental waste determination. One other commenter believes that 
use of DOE's Order 435.1 is the appropriate process for reclassifying 
residual HLW as incidental.
    F.2  Response. Section 6 (4) of the WVDP Act defines HLW as 
including both (1) liquid wastes which are produced directly in 
reprocessing, dry solid material derived from such liquid waste and (2) 
such other material as the Commission designates as HLW for the 
purposes of protecting the public health and safety. Since 1969, the 
Commission has recognized the concept of waste incidental to 
reprocessing, concluding that certain material that otherwise would be 
classified as HLW need not be disposed of as HLW and sent to a geologic 
repository because the residual radioactive contamination after 
decommissioning is sufficiently low as not to represent a hazard to the 
public health and safety. Consequently, incidental waste is not 
considered HLW. See, Proposed Rule--Siting of Commercial Fuel 
Reprocessing Plants and Related Waste Management Facilities (34 FR 
8712; June 3, 1969), Final Rule--Siting of Commercial Fuel Reprocessing 
Plants and Related Waste Management Facilities (35 FR 17530; November 
14, 1970), Advance Notice of Proposed Rule-making to Define HLW (52 FR 
5992, 5993; February 27, 1987), Proposed Rule--Disposal of Radioactive 
Waste (53 FR 17709; May 18, 1988), Final Rule--Disposal of Radioactive 
Waste (54 FR 22578; May 25, 1989), and Denial of Petition for 
Rulemaking: States of Washington and Oregon, (58 FR 12342; March 3, 
1993).
    The Commission believes that practical considerations mandate early 
resolution of the criteria that should guide the incidental waste 
determination. Vitrification of the high-level wastes at West Valley is 
nearing completion, at which point DOE intends to close down the 
vitrification facility. To delay providing the Commission's view for 
incidental waste could adversely impact the DOE, as it may prove 
extraordinarily expensive after the vitrification facility is shut down 
to provide vitrification capacity for any additional waste that must be 
shipped elsewhere for disposal. Indeed, in light of the fact that the 
site will ultimately revert to control by NYSERDA under an NRC license, 
both NYSERDA and NRC have an interest in ensuring that the incidental 
waste determination need not be revisited.
    In light of these considerations, the Commission is now providing 
the following criteria for incidental waste determinations.
    (1) The waste should be processed (or should be further processed) 
to remove key radionuclides to the maximum extent that is technically 
and economically practical; and
    (2) The waste should be managed so that safety requirements 
comparable to the performance objectives in 10 CFR part 61 subpart C, 
are satisfied.
    The resulting calculated dose from the incidental waste is to be 
integrated with all the other calculated doses from the remaining 
material at the entire NRC-licensed site to ensure that the LTR 
criteria are met. This is appropriate because the Commission does not 
intend to establish separate dose standards for various sections of the 
NRC-licensed site.
    Previously the NRC has provided advice to DOE concerning DOE's 
classification of certain waste as incidental waste for clean-up of HLW 
storage tanks at both Hanford and Savannah River. As noted above, NRC 
intends to apply the LTR criteria for the WVDP at the West Valley site, 
reflecting the fact that the applicable decommissioning goal for the 
entire NRC-licensed site is in compliance with the requirements of the 
LTR. The Commission has decided that the most recent advice provided to 
DOE for the classification of incidental waste at the Savannah River 
site,\9\ with some additional modifications, as the appropriate 
criteria that should be applicable to West Valley. These criteria are 
risk-informed and performance-based in that the criteria allow DOE the 
flexibility to develop innovative approaches to meeting the performance 
objectives in part 61. In effect, DOE should undertake cleanup to the 
maximum extent that is technically and economically practical and 
should achieve performance objectives consistent with those we demand 
for the disposal of low-level waste. If satisfied, these criteria 
should serve to provide protection of the public health and safety and 
the environment and the resulting calculated dose would be integrated 
with the resulting calculated doses for all other remaining material at 
the NRC-licensed site. It is the Commission's expectation that it will 
apply this criteria at the WVDP at the site following the completion of 
DOE's site activities. In this regard, the impacts of identifying waste 
as incidental to reprocessing and not HLW should be considered in the 
DOE's environmental reviews.
---------------------------------------------------------------------------

    \9\ See NRC Staff Requirements Memorandum ``SECY-99-0284--
Classification of Savannah River Residual Tank Waste as 
Incidental,'' May 30, 2000.
---------------------------------------------------------------------------

G. Comments Related to How the Site Should Be Decommissioned

    G.1  Comment. There were many comments and suggestions that all the 
waste at this site should be perhaps temporarily stabilized, or 
packaged and perhaps temporarily stored, but ultimately removed from 
the site. There were also some comments on what are the important 
pathways for, and man-made barriers to control, contaminant transport 
at the site.
    G.2  Response. The Commission appreciates the public's 
identification of, and input on, these issues. The decisions related to 
alternative approaches to decommissioning the West Valley site will be 
evaluated in the DOE/NYSERDA EIS, and reviewed by NRC for their ability 
to protect public health and safety and the environment. The EIS will 
also be available for public comment before being finalized.

H. Comments on the Wording of the Draft Policy Statement

    H.1  Comment. Several comments were made about the last part of a 
sentence in the Draft Policy Statement under the section entitled 
``Decommissioning Criteria for the WVDP.'' It states that ``* * * 
following the completion of DOE/NYSERDA's EIS and selection of its 
preferred alternative, the NRC will verify that the specific criteria 
identified by DOE is within the LTR and will prescribe the use of 
specific criteria for the WVDP.'' Many suggested that prescribing the 
use of the specific criteria after the selection of the preferred 
alternative in the EIS is confusing, not what is meant by the WVDP Act, 
and would allow adjustment of the criteria after the EIS is completed.
    H.2  Response. As addressed above in response to the various 
comments, the Commission's intent is to prescribe the generally 
applicable requirements of the LTR now, before the completion of the 
site-specific EIS. After completion of the site-specific DOE/NYSERDA 
EIS, NRC will evaluate the compliance status of the preferred 
alternative with respect to the LTR, as described in the Commission's 
final policy statement. This is a two-step process. The first step is 
prescribing the LTR, a set of criteria that allows for unrestricted 
releases, restricted releases, and alternative releases, that applies 
to all NRC licensees. Prescribing decommissioning criteria now for the 
WVDP allows DOE to develop alternative approaches for

[[Page 5010]]

meeting those criteria and consider their impacts in its site-specific 
EIS.
    The second step is for NRC to evaluate on a site-specific basis the 
approach for meeting the LTR. This will be done after the DOE/NYSERDA 
EIS is completed and NRC adopts it or otherwise produces its own NEPA 
evaluation of the site-specific criteria developed in the DOE/NYSERDA 
EIS. NRC will be evaluating DOE's and NYSERDA's preferred alternative 
for meeting the LTR and other alternatives presented in the DOE/NYSERDA 
EIS.
    This process is in accordance with the ``Statement of 
Considerations'' for the LTR, which describes the relationship between 
the GEIS for the LTR and site-specific decommissioning actions. A site-
specific EIS is prepared in cases where the range of environmental 
impacts of the alternatives at a specific site may not be within those 
considered in the GEIS for the LTR. This is similar to the approach 
that NYSERDA, as an NRC licensee, would need to meet if the license 
were not being held in abeyance. The Commission is satisfied that this 
approach is within the intent of the WVDP Act for the prescription of 
decommissioning requirements by NRC.
    The WVDP Act does not address license termination for the site. The 
actual license termination for the site, if and when possible, will be 
conducted under the AEA, as amended. At the time of NRC license 
termination under the AEA (if license termination is pursued), NRC will 
need to conduct an environmental review to determine if an EIS is 
necessary to support actual license termination. The language from the 
draft policy statement was changed in the final policy statement to 
reflect the process described above.
    H.3  Comment. The policy statement should not paraphrase the LTR 
and others' statements on West Valley.
    H.4  Response. The Commission was attempting to provide context to 
the draft policy statement by paraphrasing the LTR or others' 
statements on West Valley. To avoid confusion or misinterpretation in 
the Final Policy Statement, it will contain a disclaimer to the effect 
that notwithstanding any paraphrasing of the LTR in the Policy 
Statement, the language of the LTR itself is controlling in determining 
how it is to be applied at West Valley. The paraphrasing of others' 
statements will be avoided.

I. Other Comments

    I.1  Comment. What are the implications of the policy statement 
regarding NRC's policies regarding Native Americans.
    I.2  Response. NRC staff has examined the draft policy on 
decommissioning criteria for the WVDP and has not identified any 
implications in relation to the Commission's guidance regarding Native 
Americans. The Commission has directed the NRC staff to implement the 
spirit and letter of President Clinton's April 29, 1994, Executive 
Memorandum to ensure that the rights of sovereign Tribal governments 
are fully respected and to operate within a government-to-government 
relationship with Federally-recognized Native American Tribes. In 
addition, the staff has been directed to address Native American issues 
on a case-by-case basis, operating with Tribal Governments on a 
government-to-government basis. In response to the interest expressed 
by the Seneca Nation of Indians in NRC activities at WVDP, the NRC 
staff has added the Seneca Nation to its service list which will 
provide the Seneca Nation with copies of documents and meeting notices 
related to NRC's activities at West Valley that the NRC may publically 
release. The NRC staff will address issues raised by the Seneca Nation 
of Indians in accordance with the Commission's guidance.
    I.3  Comment. One commenter claims that NRC is required by law to 
define ``transuranic waste'' for West Valley and determine the 
disposition of that waste.
    I.4  Response. Section 6(5) of the WVDP Act defines transuranic 
waste for the WVDP in terms of radioisotopes and the lower limit of 
concentration of those isotopes. It also states that NRC has the 
authority to prescribe a different concentration limit to protect 
public health and safety. NRC's position on this issue is detailed in a 
letter from M. Knapp, NRC, to W. Bixby, DOE, dated August 18, 1987. 
This letter states that, to demonstrate protection of public health and 
safety, the transuranic concentration of project wastes acceptable for 
on-site disposal will be such that, by analysis, safety requirements 
comparable to the performance objectives in 10 CFR part 61 subpart C 
are satisfied. The resulting calculated dose from the transuranic waste 
is to be integrated with all the other calculated doses from the 
remaining material at the NRC-licensed site to ensure that the LTR 
criteria are met. As with incidental waste, the Commission is not 
establishing a separate dose standard that applies solely to the 
transuranic waste.

V. Final Policy Statement

Statement of Policy

Decommissioning Criteria for the West Valley Demonstration Project 
(WVDP)
    Under the authority of the WVDP Act, the Commission is prescribing 
NRC's License Termination Rule (LTR) (10 CFR part 20, subpart E) as the 
decommissioning criteria for the WVDP, reflecting the fact that the 
applicable decommissioning goal for the entire NRC-licensed site is in 
compliance with the requirements of the LTR. The criteria of the LTR 
shall apply to the decommissioning of: (1) The High Level Waste (HLW) 
tanks and other facilities in which HLW, solidified under the project, 
was stored; (2) the facilities used in the solidification of the waste; 
and (3) any material and hardware used in connection with the WVDP. 
Also under authority of the WVDP Act, the Commission is issuing 
criteria for the classification of reprocessing wastes that will likely 
remain in tanks at the site after the HLW is vitrified, subsequently 
referred to as ``incidental waste.''
    The resulting calculated dose from the WVDP at the West Valley site 
is to be integrated with all other calculated doses to the average 
member of the critical group from the remaining material at the entire 
NRC-licensed site to determine whether the LTR criteria are met. This 
is appropriate because the Commission does not intend to establish 
separate dose standards for various sections of the NRC-licensed site. 
The LTR does not apply a single public dose criterion. Rather, it 
provides for a range of criteria. Briefly stated, for unrestricted 
release, the LTR specifies a dose criterion of 25 mrem/yr total 
effective dose equivalent (TEDE) to the average member of the critical 
group plus as low as reasonably achievable (ALARA) considerations (10 
CFR 20.1402). For restricted release, the LTR specifies an individual 
dose criterion of 25 mrem/year TEDE plus ALARA considerations using 
legally enforceable institutional controls established after a public 
participatory process (10 CFR 20.1403). Even if institutional controls 
fail, individual doses should not exceed 100 mrem/yr TEDE . If it is 
demonstrated that the 100 mrem/yr TEDE criterion in the event of 
failure of institutional controls is technically not achievable or 
prohibitively expensive, the individual dose criterion in the event of 
failure of institutional controls may be as high as 500 mrem/yr TEDE. 
However, in circumstances where restricted release is required, if the 
100 mrem/yr TEDE criterion is exceeded, and/or the use of alternate 
criteria has

[[Page 5011]]

been determined, the area would be rechecked by a responsible 
government entity no less frequently than every 5 years and resources 
would have to be set aside to provide for any necessary control and 
maintenance of the institutional controls. Finally, the LTR permits 
alternate individual dose criteria of up to 100 mrem/yr TEDE plus ALARA 
considerations for restricted release, with institutional controls 
established after a public participatory process (10 CFR 20.1404). The 
Commission itself must approve use of the alternative criteria, after 
coordination with the U.S. Environmental Protection Agency (EPA) and 
after consideration of the NRC staff's recommendations and all public 
comments.\10\
---------------------------------------------------------------------------

    \10\ The material set out in the text is a brief summary of the 
LTR. Notwithstanding the words used in the text, the language of the 
LTR governs this matter.
---------------------------------------------------------------------------

    The Commission also recognizes that decommissioning of the West 
Valley site will present unique challenges, which may require unique 
solutions. As a result, the final end-state may involve a long-term or 
even a perpetual license or other innovative approaches for some parts 
of the site where clean up to the LTR requirements are prohibitively 
expensive or technically impractical. It is important that all parts of 
the site be decommissioned to the extent technically and economically 
feasible. Therefore, in addition, the Commission expects 
decontamination to the maximum extent technically and/or economically 
feasible for any portion of the site remaining under a long term or 
perpetual license or for which an exemption from the LTR is sought. In 
sum, the Commission believes that for those portions of the site that 
are unable to demonstrate compliance with the LTR's restricted release 
requirements, the dose limits should be viewed as goals, in order to 
ensure that cleanup continues to the maximum extent that is technically 
and economically feasible. If complying with the LTR's restricted 
release requirements is technically impractical or prohibitively 
expensive, then an exemption from the LTR may be appropriate, provided 
that protection of the public and the environment can be maintained.
    The Commission's application of the LTR to the WVDP is a two-step 
process: (1) NRC is now prescribing the application of the LTR; and (2) 
after the completion of the site-specific Department of Energy (DOE)/
New York State Energy Research and Development Authority (NYSERDA) 
Environmental Impact Statement (EIS) \11\ and selection of the 
preferred alternative, NRC will verify that the approach proposed by 
DOE is appropriate. The WVDP Act does not address license termination 
of the NRC license for the site, or portions thereof, which will be 
conducted (if license termination is possible and pursued) under the 
Atomic Energy Act (AEA) of 1954, as amended. If full or partial license 
termination of the NRC license is pursued, at that time NRC will need 
to conduct an environmental review to determine if an EIS is necessary 
to support license termination.
---------------------------------------------------------------------------

    \11\ DOE has decided to descope the draft 1996 EIS into two 
separate EISs. DOE will be the lead agency on the EIS that will 
address WVDP facility decontamination and management of waste 
currently stored at the site. NRC expects to be kept informed of 
progress as required under the DOE/NRC Memorandum of Understanding 
(MOU). DOE and NYSERDA will be the lead agencies on the EIS that 
will address decommissioning. NRC expects to participate as an EIS 
cooperating agency. Hereinafter, this second EIS where NRC will be a 
cooperating agency will either be referred to as the decommissioning 
EIS or the DOE/NYSERDA EIS, unless otherwise noted.
---------------------------------------------------------------------------

Decommissioning Criteria for the NRC-Licensed Disposal Area (NDA) and 
State-Licensed Disposal Area (SDA)
    NRC will apply the criteria in the LTR to the NDA within the West 
Valley site, because the NDA is under NRC jurisdiction. However, the 
NDA presents some unique challenges in that some of this material 
contains significant quantities of mobile, long-lived radionuclides 
which could potentially remain in this facility. It is recognized that 
because of the nature of radioactivity at West Valley, reasonably 
foreseeable impacts might occur after 1000 years, under certain 
scenarios. Under NEPA, an evaluation of the reasonably foreseeable 
impacts is required. Therefore, the Commission believes that an 
analysis of impacts beyond 1000 years should be provided in the DOE/
NYSERDA EIS which will be subject to public comment.
    NRC does not have regulatory authority to apply the LTR criteria to 
the SDA adjacent to the WVDP site boundary, because the SDA is 
regulated by the State of New York. However, NRC recognizes that a 
cooperative approach with the State to the extent practical should be 
utilized to apply the LTR criteria in a coordinated manner to the NRC-
licensed site and the SDA.
Decommissioning Criteria for License CSF-1 (NRC Site License)
    The criteria in the LTR will also apply to the termination of 
NYSERDA's NRC license on the West Valley site after that license is 
reactivated. For those portions of the site covered by the WVDP Act, it 
is NRC's intent to authorize that any exemptions or alternate criteria 
authorized for DOE to meet the provisions of the WVDP Act will also 
apply to NYSERDA at the time of site license termination, if license 
termination is possible. The NRC site license termination is not 
addressed in the WVDP Act. Therefore the NRC site license termination 
is subject to the provisions of the Atomic Energy Act of 1954 as 
amended.
Use of Incidental Waste Criteria at West Valley
    Section 6 (4) of the WVDP Act defines HLW as including both (1) 
liquid wastes which are produced directly in reprocessing, dry solid 
material derived from such liquid waste and (2) such other material as 
the Commission designates as HLW for the purposes of protecting the 
public health and safety. The Commission believes that practical 
considerations mandate early resolution of the criteria that will guide 
the classification of incidental waste. The vitrification of the wastes 
at West Valley is nearing completion, at which point DOE intends to 
close down the vitrification facility. To delay defining classification 
criteria for incidental waste could adversely impact the DOE as it may 
prove extraordinarily expensive after the vitrification facility is 
shut down to provide vitrification capacity for any additional waste 
that must be shipped elsewhere for disposal. Indeed, in light of the 
fact that the site will ultimately revert to control by NYSERDA under 
an NRC license, both NYSERDA and NRC have an interest in ensuring that 
the incidental waste determination need not be revisited.
    In light of these considerations, the Commission is now providing 
the following criteria that should be applied to incidental waste 
determinations.
    (1) The waste should be processed (or should be further processed) 
to remove key radionuclides to the maximum extent that is technically 
and economically practical; and
    (2) The waste should be managed so that safety requirements 
comparable to the performance objectives in 10 CFR part 61 subpart C, 
are satisfied.\12\
---------------------------------------------------------------------------

    \12\ The dose methodology used in 10 CFR part 61 subpart C is 
different from that used in the newer 10 CFR part 20 subpart E. 
However, the resulting allowable doses are comparable and NRC 
expects DOE to use the newer methodology in 10 CFR part 20 subpart 
E. part 61 is based on International Commission on Radiological 
Protection Publication 2 (ICRP 2) and part 20 is based on ICRP 26.
---------------------------------------------------------------------------

    Consistent with the overall approach in applying the LTR to the 
WVDP and to the entire NRC-licensed site following

[[Page 5012]]

conclusion of the WVDP, the resulting calculated dose from the 
incidental waste is to be integrated with all the other calculated 
doses from material remaining material at the entire NRC-licensed site.
Previous Burials Authorized Under 10 CFR Part 20
    The ``Statement of Considerations'' for the LTR, Section C.3, Other 
Exemptions (62 FR 39074) provided that in regard to past burials the 
Commission ''* * * would continue to require an analysis of site-
specific overall impacts and costs in deciding whether or not 
exhumation of previous buried waste is necessary for specific sites. In 
addition, the general exemption provisions of 10 CFR part 20 are 
available to consider unique past burials on a case-by-case basis.'' 
The NDA contains significant amounts of buried radioactive material 
that was previously authorized under older provisions of part 20. This 
material will require appropriate evaluation as part of site license 
termination.
Environmental Analysis
    An EIS is not needed at this step of the process of prescribing the 
LTR because the Commission is not establishing a new requirement for 
the site. This site is licensed to NYSERDA and, therefore, is already 
subject to the LTR by operation of the Commission's regulations. DOE in 
essence is acting as a surrogate for NYSERDA . The environmental 
impacts of applying the LTR to NRC licensees were evaluated in the 
Generic Environmental Impact Statement (GEIS), NUREG-1496, that 
supported the LTR. In promulgating the LTR, the Commission stated, in 
Section VI of the ``Statement for Considerations'' that it will conduct 
an environmental review to ``determine if the generic analysis 
encompasses the range of environmental impacts at the particular 
site.'' The Commission further stated that it ``will conduct an 
independent environmental review for each site-specific decommissioning 
decision where land use restrictions or institutional controls are 
relied upon by the licensee or where alternative criteria are 
proposed'' as it recognized that the environmental impacts for these 
cases cannot be analyzed on a generic basis. The environmental impacts 
from the application of the criteria will need to be evaluated for the 
various alternative approaches being considered in the process before 
NRC decides whether to accept the preferred alternative for meeting the 
criteria permitted by the LTR. NRC intends to rely on the DOE/NYSERDA 
EIS for this purpose.
    For NEPA purposes, DOE is considered the lead Federal agency. NRC, 
in view of its responsibilities under the WVDP Act, is considered a 
cooperating agency for this EIS and is participating in the development 
of the DOE/NYSERDA EIS. NRC does not anticipate the need to prepare its 
own duplicative EIS, since it can consider the environmental impacts 
described in the DOE/NYSERDA EIS in approving the particular 
decommissioning criteria for the WVDP under the LTR. Under this 
arrangement, if NRC is satisfied with the DOE/NYSERDA EIS, this EIS 
will fulfill the NEPA responsibilities for NRC under the WVDP Act. If 
NRC is not satisfied with the final DOE/NYSERDA EIS, then NRC will 
adopt as much of it as possible and modify or supplement it as 
necessary. In such a situation, NRC would publish its own draft EIS 
document for public review and comment before finalizing it. Once 
finalized, NRC's West Valley NEPA responsibilities would be fulfilled 
under the WVDP Act.
    The WVDP Act does not address license termination for the site. 
License termination of the NRC license for the site, or portions 
thereof, is conducted (if license termination is possible) under the 
AEA. If NYSERDA pursues either full or partial license termination of 
the NRC license, at that time NRC will need to conduct an environmental 
review to determine if an EIS is necessary to support license 
termination.
Availability of Documents
    NRC's final policy statement on decommissioning criteria for West 
Valley is also available at NRC's Public Electronic Reading Room link 
(http://www.nrc.gov/NRC/ADAMS/ index.html) on NRC's home page (http://www.nrc.gov). Copies of documents cited in this section are available 
for inspection and/or reproduction for a fee in the NRC Public Document 
Room, 11555 Rockville Pike, Room O-1F21, Rockville, MD 20852. The NRC 
Public Document Room is open from 7:45 a.m. to 4:15 p.m., Monday 
through Friday, except on Federal holidays. Reference service and 
access to documents may also be requested by telephone (301-415-4737 or 
800-397-4209), between 8:30 a.m. and 4:15 p.m.; or by e-mail 
([email protected]); fax (301-415-3548); or a letter (NRC Public Document 
Room, Mailstop O-1F13, Washington, DC 20555-0001). In addition, copies 
of: (1) SECY-98-251, ``Decommissioning Criteria for West Valley;'' (2) 
the transcript of the public meeting held January 12, 1999; (3) the 
Commission's SRM of January 26, 1999, concerning the January 12, 1999, 
public meeting on SECY-98-251; (4) SECY-99-057, ``Supplement to SECY-
98-251, `Decommissioning Criteria for West Valley;' '' (5) the 
Commission's vote sheets on SECY-98-251 and SECY-99-057; (6) the 
Commission's SRM of June 3, 1999, on SECY-98-251 and SECY-99-057; (7) 
the draft policy statement issued December 3, 1999; (8) the transcript 
of the public meeting held January 5, 2000; and (9) the public comments 
on the draft policy statement can be obtained electronically on NRC's 
home page at the Commission's Activities link (http://www.nrc.gov/NRC/COMMISSION/activities.html).

    Dated at Rockville, Maryland, this 25th day of January, 2002.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 02-2373 Filed 1-31-02; 8:45 am]
BILLING CODE 7590-01-P