[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Proposed Rules]
[Pages 9595-9602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4752]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 20


Rulemaking on Controlling the Disposition of Solid Materials: 
Scoping Process for Environmental Issues and Notice of Workshop

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for comments on scope of proposed rulemaking and notice 
of workshop.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is conducting an 
enhanced participatory rulemaking on alternatives for controlling the 
disposition of solid materials that originate in restricted or impacted 
areas of NRC-licensed facilities, and that have no, or very small 
amounts of, radioactivity resulting from licensed operations. The NRC 
is seeking stakeholder participation and involvement in identifying 
alternatives and their environmental impacts that should be considered 
as part of the rulemaking. Considerable information collection effort 
has been conducted in this area and the Commission is building on 
existing information to focus on potential solutions. To assist in this 
process, the NRC is holding a workshop to solicit new input with a 
focus on the feasibility of alternatives identified in this notice that 
would limit where solid material can go. The NRC has not made a 
decision on the scope or details of a regulation and is continuing to 
develop a solid technical basis for the rulemaking.

DATES: Submit comments by June 30, 2003. Comments received after this 
date will be considered if it is practicable to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.
    In addition to providing opportunity for written (and electronic) 
comments, a workshop to solicit comments on alternatives, with a focus 
on the feasibility of alternatives identified in this notice that would 
limit where solid materials can go, will be held on May 21-22, 2003 
from 8:30 a.m.-5 p.m. in the NRC Auditorium, 11545 Rockville Pike, 
Rockville, Maryland.

ADDRESSES: Submit comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555. Attention: Rulemaking and 
Adjudications Staff.
    Deliver comments to 11555 Rockville Pike, Rockville, Maryland, 
between 7:30 a.m. and 4:15 p.m. on Federal workdays.
    You may also provide comments via the NRC's rulemaking Web site at 
http://ruleforum.llnl.gov (then select ``Information/Comment Requests'' 
from left-hand column). This site provides the capability to upload 
comments as files (any format), if your web browser supports that 
function. For information about the interactive rulemaking web page, 
contact Ms. Carol Gallagher, (301) 415-5905 ([email protected]).
    Copies of any comments received may be examined at the NRC Public 
Document Room, 11555 Rockville Pike, Rockville, Maryland.

FOR FURTHER INFORMATION CONTACT: Frank Cardile, telephone: (301) 415-
6185; e-mail: [email protected], Office of Nuclear Material Safety and 
Safeguards, USNRC, Washington, DC 20555-0001. Specific comments on the 
public meeting process should be directed to Chip Cameron; e-mail 
[email protected], telephone: (301) 415-1642; Office of the General Counsel, 
USNRC, Washington, DC 20555-0001. Specific comments on the 
environmental scoping process discussed in Section VI should be 
directed to Phyllis Sobel; e-mail [email protected], telephone: (301) 415-
6714; Office of Nuclear Material Safety and Safeguards, USNRC, 
Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The NRC is conducting a rulemaking to evaluate alternatives for 
controlling the disposition of solid materials with no, or very small 
amounts of, radioactivity resulting from licensed operations. This 
Federal Register Notice (FRN) provides information on this effort as 
follows:
    (1) Sections II.1-II-7: These sections provide background 
information about why we are conducting this effort and what are some 
alternatives for controlling the disposition of solid materials.
    (2) Sections III.1-III.2: These sections discuss the considerable 
information collection efforts we have conducted to date in this area 
and what we have learned about the alternatives.
    (3) Sections IV and V: These sections discuss our current effort to 
build on information previously collected in this area. The NRC has not 
made a decision on any alternatives for controlling the disposition of 
solid materials and invites stakeholders to present new information on 
alternatives. In particular, Section IV asks specific questions about 
the feasibility of alternatives that would limit where solid material 
can go, and Section V announces a workshop scheduled for May 21-22, 
2003.
    (4) Section VI: This section announces a re-opening of the scoping 
process and requests input on environmental impacts of alternatives.
    To further assist stakeholders, the staff is also placing on its 
website an

[[Page 9596]]

information packet which discusses ways in which stakeholders can 
review the alternatives and issues involved, provide comments to the 
NRC, and link to other documents (Go to http://www.nrc.gov/materials.html and select ``Controlling the Disposition of Solid 
Materials.'').

II. Background

    The information below in Sections II.1-II.7 has been discussed in 
various NRC documents and public meetings.\1\ It is provided here in 
summary form as background information on the issues involved and on 
alternatives for controlling the disposition of solid materials.
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    \1\ Many of the documents, as well as summaries of public 
meetings and other background information, discussed in this paper 
are available via the NRC's web page at http://nrc.gov/materials.html.
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1. Solid Materials Being Considered

    Just as is the case for many industrial operations (or in a home), 
there are ``solid materials'' that are no longer needed or useful at 
facilities licensed by NRC. This can occur, for example, during normal 
facility operations when: (a) Metal equipment and tools become surplus, 
obsolete or worn; (b) glass, plastic, paper, or other trash-like 
materials are no longer useful; or (c) concrete from a building being 
renovated or soil being excavated from a site is no longer needed. This 
can also occur at the end of facility operations when a licensee seeks 
to terminate its NRC license. At such times, NRC's licensees seek 
disposition alternatives for solid material that are protective of 
public health and safety and are economical.
    NRC licensees fall into broad categories that include: (a) 
Academic--university laboratories and small reactors that use 
radioactivity for research and teaching purposes; (b) medical--
hospitals and clinics that use radioactivity for diagnostic and 
therapeutic medical purposes; (c) manufacturing--facilities and labs 
that manufacture products that use radioactivity, e.g., smoke 
detectors, certain types of gauges; and (d) power production--reactor 
facilities and fuel cycle facilities that handle radioactivity as part 
of the generation of electricity.

2. The Nature of These Solid Materials

    This effort is focused on controlling the disposition of solid 
materials that are present in areas in NRC-licensed facilities where 
radioactive materials are used or stored. These areas of the facilities 
are generally referred to as either ``restricted \2\'' or ``impacted 
\3\'' areas. Despite their location in these restricted or impacted 
areas, much of this solid material has no, or very small amounts of, 
radioactivity resulting from licensed operations either because the 
material was exposed to radioactivity in the facility to only a limited 
extent or because it has been cleaned. These solid materials can 
include furniture and ventilation ducts in buildings; metal equipment 
and pipes; wood, paper, and glass; laboratory materials (gloves, 
beakers, etc); routine trash; site fences; concrete; soil; or other 
similar materials.
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    \2\ A restricted area is defined in the NRC's regulations in 10 
CFR 20.1003.
    \3\ An impacted area is defined in the Multi-Agency Radiation 
Survey and Site Investigation Manual (MARSSIM) which was jointly 
prepared by the U.S. Environmental Protection Agency, the U.S. 
Department of Energy, the U.S. Department of Defense, and the NRC. 
An impacted area is defined in MARSSIM as an area with a possibility 
of containing residual radioactivity in excess of natural background 
or fallout levels.
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    Other solid materials in these restricted or impacted areas can 
contain more appreciable levels of radioactivity. However, these are 
separated from those materials with no, or very small amounts of, 
radioactivity at the licensed facility and are required to be disposed 
of at licensed low-level waste (LLW) disposal sites under NRC's 
existing regulations in 10 CFR part 61. Solid materials containing 
appreciable levels of radioactivity are not the subject of this NRC 
rulemaking.
    Solid materials not located in restricted or impacted areas, and 
considered to be free of radioactivity resulting from licensed 
operations, are not currently required to be part of a disposition 
radiological survey program. Such materials can include furniture, 
glass bottles, paper, equipment, or trash in administrative buildings 
or office areas. This rulemaking does not propose to alter this 
approach, and therefore, these materials are also not the subject of 
this NRC effort.
    The remainder of this FRN discusses those solid materials from 
restricted or impacted areas of an NRC-licensed facility that have no, 
or very small amounts of, radioactivity resulting from licensed 
operations. For ease of reference, these are referred to as ``solid 
materials.''

3. The NRC's Current Approach for Controlling the Disposition of Solid 
Materials

    Currently, the NRC has requirements in its regulations in 10 CFR 
part 20 that require that solid materials that have been in restricted 
or impacted areas be surveyed before leaving the site. Solid materials 
can currently be released for any unrestricted use if the survey does 
not detect radioactivity from licensed operations on the material or, 
if it does detect radioactivity, the amount is below a level that is 
considered to be protective of public health and safety and the 
environment.
    However, 10 CFR part 20 does not currently specify the level below 
which the material can be released. Decisions on disposition of solid 
materials are currently made using levels contained in a set of 
existing guidelines that are based primarily on the ability of survey 
meters to measure the radioactivity level on, or in, the solid 
material.\4\
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    \4\ These guidelines are discussed in the June 1999 Issues Paper 
and in an All-Agreement States letter (STP-00-070), dated August 22, 
2000.
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4. Why NRC Is Examining This ``Current Approach''

    A report by the National Academies indicates that NRC's current 
approach for controlling the disposition of solid materials protects 
public health and does not need immediate revamping.
    However, the National Academies report also indicates that the 
current approach is incomplete and inconsistent and that NRC's approach 
should be based more directly on a risk basis. As a result, the 
National Academies study states that NRC should conduct a process to 
evaluate alternatives to provide clear risk-informed direction on 
controlling the disposition of solid materials.

5. Why NRC Is Conducting a Rulemaking to Potentially Revise its Current 
Approach

    The NRC agrees with the findings in the National Academies report 
regarding the need to consider modifying its current approach to 
provide specific direction on controlling the disposition of solid 
materials.
    The generally accepted process that Federal Agencies use to examine 
or replace an approach that needs improvement is to conduct a 
rulemaking to amend the Code of Federal Regulations (CFR). A rulemaking 
is an open process that evaluates the advantages and disadvantages of a 
range of alternatives and that invites public input on the alternatives 
early on and throughout the process.

6. NRC's Guiding Policy in Conducting a Rulemaking To Develop a 
Regulation

    NRC's overall policy, as discussed in NUREG-1614 entitled ``U.S. 
Nuclear Regulatory Commission Strategic Plan, Fiscal Year 2000-2005,'' 
is that the nation's use of radioactive material be conducted in a 
manner that protects

[[Page 9597]]

public health and safety and the environment. In carrying out this 
policy, the NRC is guided by broad ``performance goals'' that include:
    (1) Maintain safety, protection of the environment, and the common 
defense and security;
    (2) Increase public confidence in our regulatory process;
    (3) Make NRC's activities and decisions effective, efficient, and 
realistic;
    (4) Reduce unnecessary regulatory burden on stakeholders.
    As discussed in NUREG-1614, protection of public health and safety 
is paramount among the NRC goals and it is likewise our principal goal 
in controlling the disposition of solid materials. We also recognize 
that, in considering alternatives in this area, our decision-making 
process needs to provide stakeholders with clear and accurate 
information about, and a meaningful role in, the process. In addition, 
any requirements we promulgate in this area must not impose unnecessary 
regulatory burdens beyond what is necessary and sufficient for 
providing reasonable assurance that public health and safety will be 
protected.

7. Alternatives for Controlling the Disposition of Solid Materials

    Paths by which solid materials with no, or very small amounts of, 
radioactivity could leave a licensed facility fall into general 
disposition categories of ``release'' or ``disposal.'' A set of 
preliminary alternatives for controlling the disposition of solid 
materials along these paths was first described in an NRC Issues Paper 
published for public comment in the Federal Register (FR) on June 30, 
1999 (64 FR 35090); these alternatives are summarized here:
    A. Release: In this disposition path, solid materials could be 
released into general commerce if a radiation survey verifies that 
public health and safety is protected and if the materials have some 
benefit in either a recycled or re-used product. Alternatives for 
control include:
    (1) Unrestricted use: Unrestricted use means that solid materials 
could be released for any use in general commerce after a radiation 
survey verifies that an allowable level has been met.\5\ Two 
unrestricted use alternatives are:
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    \5\ The term ``clearance'' is also used by various organizations 
and in various documents to mean removal from regulatory control of 
material that meets certain release criteria.
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    Alternative 1: Continue NRC's current approach (see Section II.3) 
which allows unrestricted use based on existing guidance on survey 
capabilities;
    Alternative 2: Amend the NRC's regulations to include a dose based 
criterion for unrestricted use.
    (2) Conditional use (Alternative 3): In this alternative, solid 
material could be released but its further use would be restricted to 
only certain authorized uses with limited public exposures such as use 
in controlled or low exposure environments. Examples might include 
industrial uses such as metals in bridges, sewer lines, or industrial 
components in a factory, or concrete in road fill.\6\
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    \6\ Other terms have been used for this alternative, including 
``conditional clearance'' and ``restricted use.'' However, the term 
``Conditional use'' is deemed more appropriate and is used 
throughout the remainder of this document.
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    B. Disposal: In this disposition path, solid materials would be 
prohibited from general commerce and isolated from the public. 
Alternatives \7\ for control include:
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    \7\ Other terms have been used for this alternative, including 
``prohibition'' and ``no release.'' The alternatives listed here are 
considered to be clearer in that they provide more information as to 
the destination of the material and hence are used throughout the 
remainder of this document.
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    (1) Landfill disposal (Alternative 4): In this alternative, solid 
material would be prohibited from general commerce by requiring it to 
be placed in an EPA-regulated landfill;
    (2) NRC/Agreement State (AS)-licensed low-level waste (LLW) 
disposal site (Alternative 5): In this alternative, solid material 
would be prohibited from general commerce by requiring it to be placed 
in an NRC/AS-licensed LLW disposal site and regulated under the NRC's 
regulations in 10 CFR Part 61.

III. Summary of Efforts to Date and What NRC Has Learned About 
Alternatives

1. Efforts to Date To Examine Alternatives

    The NRC's Issues Paper, published in the FR for public comment in 
June 1999, indicated that NRC was examining its alternatives for 
controlling the disposition of solid materials. To provide further 
opportunity for public input, NRC held a series of four public meetings 
during the fall of 1999.
    The NRC received over 800 public comment letters from stakeholders 
representing the metals, metal scrap, and concrete industries; citizens 
groups; licensees and licensee organizations; landfill operators; 
Federal and State agencies; and Tribal governments. Comments were also 
received from stakeholders at the four public meetings. Comments were 
sharply diverse in the views expressed, and there was support and 
rationale provided by commenters for a range of alternatives for 
controlling the disposition of solid materials.
    On March 23, 2000, the NRC staff provided the Commission with a 
paper (SECY-00-0070) on the diversity of views expressed in public 
comments received on the Issues Paper. Attachment 2 of SECY-00-0070 
provides a summary of views and comments received; summaries of the 
comments can also be viewed in NUREG/CR-6682, ``Summary and 
Categorization of Public Comments on the Control of Solid Materials'' 
(September 2000). SECY-00-0070 also provided the status of the staff's 
technical analyses being developed as support for making decisions in 
this area and noted the related actions of international and national 
organizations and agencies that could be factors in NRC's decision-
making.
    To solicit additional input, the Commission held a public meeting 
on May 9, 2000, at which stakeholder groups presented their views and 
discussed alternatives for controlling the disposition of solid 
materials.
    On August 18, 2000, the Commission decided to defer a final 
decision on whether to proceed with rulemaking and directed the staff 
to request that the National Academies conduct a study of alternatives 
for controlling the disposition of solid materials. The Commission also 
directed the staff to continue to develop technical information and to 
stay informed of international and U.S. agency activities in this area.
    The National Academies study of alternatives for controlling the 
disposition of solid materials was initiated in August 2000. As part of 
the study, the National Academies held three information gathering 
meetings in January, March, and June of 2001, at which it obtained 
input from various stakeholder groups similar to those that presented 
information to the NRC earlier. Based on these meetings, and on its 
deliberations on this topic, the National Academies submitted a report 
to the NRC in March 2002. The report contains nine recommendations on 
the decision-making process, potential approaches for controlling the 
disposition of solid materials, and additional technical information 
needed. In particular, the National Academies report indicates that 
NRC's current approach for controlling the disposition of solid 
materials protects public health and does not need immediate revamping. 
However, the National Academies report also states that NRC's current 
approach is

[[Page 9598]]

incomplete and inconsistent and concludes that NRC should therefore 
conduct a process to evaluate a broad range of alternatives to provide 
clear risk-informed direction on controlling the disposition of solid 
materials. The report notes that broad stakeholder involvement and 
participation in the NRC's decision-making process on the alternatives 
is critical as the process moves forward. The report also notes that an 
individual dose standard of 10 [mu]Sv/yr (1 mrem/yr) provides a 
reasonable starting point for the process of considering alternatives 
for a dose-based standard. A summary of the National Academies report 
can be found in an NRC staff paper, SECY-02-0133, and a link to the 
National Academies report, itself, is contained in the Background 
section of the NRC's web page.
    As noted above, the NRC has been conducting technical studies to 
provide additional analyses to better understand and evaluate the 
alternatives for controlling the disposition of solid materials. These 
studies are examining potential impacts of alternatives on human health 
and the environment; costs to licensees, other industries, and the 
public resulting from the alternatives; and the ability of radiation 
detectors to verify the radioactivity level on any solid material so 
that a licensee can verify compliance with an alternative. The results 
of some of these studies have been issued for public comment and are 
available on NRC's web page; additional results will be provided for 
public comment when they are available.
    In addition to NRC efforts in this area, other scientific 
organizations are engaged in similar processes. Recognized radiation 
protection standards organizations like the National Council on 
Radiation Protection and Measurements (NCRP), International Commission 
on Radiological Protection (ICRP), and American National Standards 
Institute (ANSI) have issued findings about possible criteria for 
controlling the disposition of solid materials. The U.S. Department of 
Energy (DOE) is preparing a Programmatic Environmental Impact Statement 
on alternatives for disposition of DOE scrap metals. The U.S. 
Environmental Protection Agency (EPA) sets radiation protection 
standards in the general environment although they do not currently 
have a program on controlling the disposition of solid materials from 
licensed facilities. International agencies (such as the International 
Atomic Energy Agency and the European Commission) as well as other 
individual nations, are in the process of establishing standards for 
controlling the disposition of solid materials. These efforts are 
significant for the NRC because inconsistency in standards between the 
U.S. and other nations can result in confusion regarding international 
trade, in particular if materials released under other nations' 
regulations arrive as imports in the U.S.

2. Summary of Information and Comments Received to Date on Alternatives

    As discussed in Section III.1, NRC has obtained information from 
public comments, from efforts by scientific organizations, and from 
various technical studies, including that done by the National 
Academies. The following sections summarize the information and views 
obtained about potential alternatives for controlling the disposition 
of solid materials, as well as the process for examining our approach. 
This material reflects the NRC performance goals noted in Section 
III.6, above.
A. Alternative 1--No Action: Retain Current Approach of Allowing 
Unrestricted Use Using Measurement-based Guidelines
    All rulemakings include consideration of a no-action alternative 
that would continue NRC's current approach. As discussed in Section 
II.3, above, Alternative 1 permits solid materials that are in 
restricted or impacted areas to be released for unrestricted use if a 
radiation survey does not detect radioactivity from licensed operations 
on the material or, if it does detect radioactivity, the amount is 
below a level that is considered to be protective of public health and 
safety. NRC's regulations do not specify the level below which the 
material can be released; decisions are currently made using levels 
contained in a set of existing guidelines based primarily on the 
ability of survey meters to measure the radioactivity level on, or in, 
the solid material.
    The advantages and disadvantages of Alternative 1 were discussed in 
SECY-02-0133 based on the public comments received on the June 1999 
Issues Paper and on the National Academies report. As discussed in 
SECY-02-0133, advantages of Alternative 1 are that NRC's current 
approach: (a) Is sufficiently protective of public health and does not 
need immediate revamping; (b) is workable and familiar to licensees; 
and (c) requires no staff resources to amend regulations at this time 
which would allow NRC to focus on other higher-priority safety issues, 
whereas decommissionings on a large scale are not expected for some 
time. Disadvantages of Alternative 1 include: (a) Lack of an overall 
risk basis or consistent approach; (b) use of outdated measurement 
bases; (c) international consistency issues; (d) issues of regulatory 
finality caused by lack of regulation as the basis for the current 
approach; (e) licensees problems using the current approach when 
dealing with materials day-to-day, and (f) expenditure of NRC staff 
resources on case-specific reviews under the current approach, which 
are anticipated to possibly increase due to expanded use of radiation 
monitors for detecting solid materials with small amounts of 
radioactivity outside NRC-licensed facilities.
B. Alternative 2: Dose-Based Regulation on Unrestricted Use
    As noted in Section II.7, Alternative 2 would allow solid materials 
to be released for use in general commerce if a radiation survey 
verifies that the level of radioactivity is protective of public health 
and safety and if there is some benefit in the materials' recycle or 
re-use. The June 1999 Issues Paper discussed a range of potential 
options for values for an allowable dose level, including 0, 1, 10, and 
100 [mu]Sv/yr (0, 0.1, 1.0, and 10 mrem/yr). The National Academies 
recommended in their study that a value of 10 [mu]Sv/yr (1 mrem/yr) was 
a good starting point for discussion for a dose-based release standard.
    (1) Summary of information from scientific organizations on the 
unrestricted use alternative:
    A number of scientific organizations have provided information 
indicating that 10 [mu]Sv/yr (1 mrem/yr) presents a negligible level of 
risk to the public and is therefore protective of public health and 
safety. The National Academies report indicates that 10 [mu]Sv/yr (1 
mrem/yr) is within the acceptable range of values used in U.S. health-
based standards, is a small fraction of natural background, and is 
accepted by recognized national and international organizations. The 
NCRP and the ICRP both indicate that a 10 [mu]Sv/yr (1 mrem/yr) level 
poses a negligible risk. The Health Physics Society notes that 10 
[mu]Sv/yr (1 mrem/yr) is well below doses received in routine 
activities without discernable health effect. EPA radioactive effluent 
standards in similar areas have safety goals that are comparable to 10 
[mu]Sv/yr (1 mrem/yr). ANSI has concluded that a value of 10 [mu]Sv/yr 
(1 mrem/yr) is an appropriate criterion for release of solid materials 
and has published its findings in a standard entitled ``Surface and 
Volume

[[Page 9599]]

Radioactivity Standards for Clearance,'' N13.12-1999, August 1999; it 
is noted that the National Technology Transfer and Advancement Act of 
1995 requires Federal agencies to consider this type of technical 
standard in rulemakings in pertinent areas.
    (2) Summary of information received in public comments:
    Public comments generally fell into categories of issues related to 
(a) protection of public health and safety and (b) regulatory burden:
    (a) Issues related to public health and safety:
    Certain commenters agreed with use of the unrestricted use 
alternative for the reasons noted in the scientific studies. However, 
other commenters were concerned about an unrestricted use alternative, 
noting that risks associated with these solid materials are avoidable 
and involuntary; long term and cumulative impacts cannot be accurately 
modeled; there is a potential for exposures to multiple products; any 
dose increases cancer risk; even a small risk when spread over the U.S. 
population is too high; there is no justification for adding more dose 
to what we receive from background; releases would not be accurately 
measured and tracked; licensees and the government cannot be trusted to 
assure that any releases would be carefully monitored; and a contractor 
who participated in NRC's technical support analyses had a conflict of 
interest.
    (b) Issues related to regulatory burden:
    This alternative engendered strong comment on both sides of this 
issue. The metals and concrete industries opposed unrestricted use 
because it would result in a large negative economic impact on steel/
concrete industries because consumers would not buy products made with 
recycled solid material; the amount of steel available from licensed 
facilities is small, and therefore the economic benefit of recycling is 
small; and generators of the solid material should handle their own 
problem and not pass it along to other stakeholders. Other commenters 
were in favor of unrestricted use because the alternative of disposal 
of all solid material with no, or very small amounts of, radioactivity 
in a licensed LLW disposal site is costly to licensees without an 
accompanying health and safety benefit; and would cause a severe 
economic impact for small licensees, e.g., medical facilities, 
universities.
    (3) Summary: Scientific studies, including the National Academies 
report, indicate that unrestricted use at a level in the range of 10 
[mu]Sv/yr (1 mrem/yr) presents negligible risk and is therefore 
protective of public health and safety, however there was also 
significant stakeholder comment related to health impact and economic 
burden issues which could make this alternative potentially difficult 
to implement.
C. Alternative 3--Conditional Use
    Conditional use is an alternative in which solid material could be 
released but its further use would be restricted to only certain 
authorized uses.
    (1) Summary of information received in public comments:
    Public comments received generally fell into categories of issues 
related to (a) protection of public health and safety, (b) regulatory 
burden, and (c) concern over feasibility of conditional use.
    (a) Issues related to public health and safety:
    Some commenters noted that a benefit of this alternative is that it 
could limit radiation dose by permitting the solid material to be 
released for only certain authorized uses (e.g., industrial products, 
metal in sewer lines or bridges, concrete in construction fill) that 
have limited potential for public exposure.
    (b) Issues related to regulatory burden:
    A benefit cited with the conditional use alternative is that solid 
materials that have no, or very small amounts of, radioactivity could 
be used under certain authorized conditions rather than using the more 
costly licensed LLW disposal alternative.
    (c) Concerns about feasibility of conditional use:
    Some commenters expressed concern about the feasibility or 
viability of conditional use, noting: (a) It may not be viable 
economically to set up a recycling process dedicated only to the 
limited quantities of solid material from licensed facilities; (b) a 
regulatory system of restrictions to limit where solid material is used 
would be hard to establish and enforce; and (c) it is not clear that 
restrictions would work to limit where the material goes, i.e., solid 
material could wind up being released for unrestricted use. Commenters 
also noted that, even if a system of restrictions was set up, the 
authorized use would have some limited lifetime and the solid material 
might ultimately end up in an unrestricted use, and therefore that it 
makes more sense to focus on establishing criteria for unrestricted 
use. Some commenters indicated that the only viable conditional use 
would be to retain the solid material within the NRC licensing arena or 
the DOE complex.
    (2) Summary: Restricting the further use or disposition of solid 
materials from licensed facilities to only certain authorized uses can 
have merit in public health considerations in that exposure scenarios 
are minimized. However, based on the comments received in the NRC 
public comment process, it is not evident that conditional use is a 
technically viable way to make sure the material ends up in its 
authorized use or that it is an economically feasible approach that 
will work.
D. Alternatives 4 and 5--Disposal of Solid Materials in Either EPA-
Regulated Landfills or NRC/AS-Licensed LLW Disposal Sites
    In this alternative, solid material would be prohibited from 
general commerce. The solid material would be required to be disposed 
of at an EPA-regulated landfill (Alternative 4) or under NRC's existing 
regulations in 10 CFR Part 61 in an NRC/AS-licensed LLW disposal site 
(Alternative 5) (see Section II.7 above).
    EPA regulates municipal and industrial solid waste under the 
Resource Conservation and Recovery Act (RCRA). Under RCRA Subtitle C, 
the hazardous waste program establishes a system for controlling 
hazardous waste from the time it is generated until its disposal. Under 
RCRA Subtitle D, the solid waste program encourages states to develop 
comprehensive plans for managing non-hazardous industrial solid waste 
and municipal solid waste and also sets criteria for municipal solid 
waste landfills and other solid waste disposal facilities. RCRA does 
not address radioactive material under NRC jurisdiction.
    (1) Summary of information on this alternative from scientific 
organizations:
    The National Academies report compared disposing of solid material 
in landfills and in licensed LLW disposal sites, and found that 
disposal of solid materials in EPA regulated Subtitle C or Subtitle D 
landfills would be substantially less costly than disposal in sites 
licensed by the NRC or Agreement States under 10 CFR Part 61.
    (2) Summary of information received in public comments:
    Public comments generally fell into the categories of issues 
related to (a) protection of public health and safety, (b) regulatory 
burden, and (c) feasibility of landfill disposal.
    (a) Issues related to public health and safety:
    A rationale for this approach is that it would prevent solid 
material from

[[Page 9600]]

licensed facilities from entering general commerce thus limiting the 
potential for radiation dose to the general public. Opponents of this 
approach cite the National Academies study and the NCRP which both 
indicate that 10 [mu]Sv/yr (1 mrem/yr) levels are trivial for health 
reasons and, therefore, a requirement for a general prohibition would 
have minimal positive health impact.
    (b) Issues related to regulatory burden:
    A principal comment regarding Alternative 5 is that requiring all 
material, even that which has no, or very small amounts of, 
radioactivity but which has some economic value, to be sent to NRC/AS-
licensed LLW disposal sites would be costly to licensees, in particular 
smaller entities like hospitals, without an accompanying health and 
safety benefit. However, a regulation limiting disposal of these 
materials to an EPA-regulated landfill would have much smaller costs 
than disposal at a licensed LLW disposal site and place much smaller 
economic burden on licensees for controlling the disposition of solid 
materials.
    (c) Issues related to concerns over feasibility of landfill 
disposal:
    Some commenters expressed concern about the viability of landfill 
disposal, noting that a regulatory system of restrictions to limit 
solid materials would have to consider NRC, EPA, and State 
responsibilities. Also, it is not clear how restrictions would work to 
limit where material goes, and it is not clear that landfill operators 
would accept solid material released from NRC-licensed facilities.
    (3) Summary--An alternative in which all material from a licensed 
facility is prohibited from release and instead disposed of either at 
an EPA-regulated landfill or an NRC/AS-licensed LLW disposal site would 
keep additional radioactivity out of general commerce, although would 
be likely more costly than unrestricted or conditional use. If all 
solid material is required to be disposed of at NRC/AS-licensed LLW 
sites, the economic burden imposed might be large, especially on small 
licensees, and the health benefit obtained would likely be small. The 
economic burden of disposing of this solid material in an EPA-regulated 
landfill should not be as large. However, some of the same concerns 
noted in Section III.2.C, above, would also exist for the landfill 
alternative, in particular regarding whether there would be assurance 
that the material would not be diverted from, or taken from, the 
landfill, and also whether landfills would accept all this material. 
EPA, in cooperation with the NRC, is considering a rulemaking that 
could permit disposal of certain NRC regulated material in a RCRA 
permitted facility subject to, if necessary, an appropriate NRC 
approval process (e.g., a site-specific or general license, or 
exemption). EPA is working with NRC on an EPA Advance Notice of 
Proposed Rulemaking to solicit stakeholder comment on disposing of such 
materials in a RCRA regulated facility.

IV. Current Status of Efforts and Request for Additional Information

    As discussed in Section III.1, there has been extensive and wide-
ranging discussion of alternatives for controlling the disposition of 
solid materials as part of NRC and other organizations' efforts. 
Substantial and substantive information has been developed and input 
received on potential impacts of the various alternatives on public 
health and regulatory burden. NRC has received over 800 comment letters 
and held several public information meetings on controlling the 
disposition of solid materials. In addition, the National Academies 
conducted a study on this subject during which they held several 
information gathering meetings open to the public, and several 
scientific organizations are conducting studies and/or developing 
standards in this area.
    Based on the National Academies report and on other factors 
affecting decision-making, the NRC staff developed a set of options for 
a regulatory process for examining alternatives for controlling the 
disposition of solid materials and presented these regulatory options 
to the Commission in SECY-02-0133 on July 15, 2002. Based on this 
information, the Commission, on October 25, 2002, directed the NRC 
staff to proceed with an enhanced participatory rulemaking to develop 
specific requirements for controlling the disposition of solid 
materials at licensed facilities. Subsequently the staff prepared a 
plan for conducting this rulemaking which the Commission approved on 
January 27, 2003.
    In directions to the NRC staff, the Commission noted that the 
rulemaking should give fair consideration to all alternatives in 
developing a proposed rule so that a broad range of alternatives is 
identified and can be weighed by the Commission. In particular, the 
Commission indicated that the NRC staff should seek stakeholder 
participation and involvement in considering alternative approaches. 
The Commission noted that, in approaching stakeholders on this issue, 
the staff should reiterate the Commission's continuing support for the 
release of solid materials when there are no significant health 
consequences. This is consistent with the NRC's agency mandate to 
ensure that the nation's use of radioactive materials is carried out in 
a manner that protects the public health and safety and the 
environment.
    In its direction to the staff, the Commission noted the 
considerable information on controlling the disposition of solid 
materials previously collected (see Section III.1) and indicated that, 
rather than duplicating these efforts, the staff should build on this 
existing information (including the concerns and comments expressed in 
public comment) and utilize it as a starting point to focus on 
potential solutions. In particular, the Commission directed the staff 
to explore increased use of web-based methods for interacting with 
stakeholders for issues that might not warrant additional discussion at 
a workshop, and to focus additional workshops on areas where 
substantial new input is needed.
    With regard to Alternatives 1, 2, and 5 (no action, unrestricted 
use, and disposal in NRC-regulated LLW disposal sites), the efforts 
described in Section III.1 have provided substantial information. 
However, NRC is interested in obtaining any additional information, 
beyond that expressed earlier, that should be considered for each of 
the types of materials noted in Section II.1. This includes areas 
where:
    (a) There has been modification of the views that have been 
expressed in earlier public comments on any of the alternatives;
    (b) additional scientific information is available with regard to 
any of the alternatives;
    (c) additional economic information is available with regard to any 
of the alternatives;
    (d) there are new or modified alternatives beyond those discussed 
above.
    In certain other areas, in particular with regard to Alternative 3 
(conditional use) and Alternative 4 (EPA regulated landfill disposal), 
earlier information collection efforts did not obtain sufficient 
information to clearly indicate the viability or economic feasibility 
of these alternatives. Although these alternatives were noted by the 
National Academies report as potential methods for controlling the 
disposition of solid materials, earlier public comments raised concerns 
about their viability. Thus, the Commission specifically directed the 
staff to explore and document the feasibility of these alternatives 
and, in particular, noted

[[Page 9601]]

that the staff should have discussions with stakeholders with regard to 
whether the alternatives: (1) Are effective; (2) are reasonably 
possible to implement; and (3) would increase public confidence in the 
process. To further consider these issues, input on the following 
questions is requested for each of the types of materials noted in 
Section II.1:
    With regard to conditional use:
    (1) The intent of the conditional use alternative is that solid 
material would be restricted to only certain authorized uses and kept 
separate from general consumer uses. Consideration needs to be given as 
to whether this alternative can: (a) Provide assurance that solid 
material goes to its authorized use and is not diverted to unrestricted 
use and (b) be established and implemented in a manner that is both 
practical and economical. Specific questions are:
    (a) Can a scrap/manufacturing/distribution process that is not 
licensed by NRC provide assurance that the material is limited to its 
authorized use?
    (b) Would it be necessary for NRC to maintain regulatory control by 
licensing all or some portion of the process (e.g., only the scrap 
process or the scrap and manufacturing process)? Could involvement by 
another Federal Agency in the scrap/manufacturing/ distribution process 
provide assurance that the material remains with its authorized use? 
What are the feasibility, cost, and increased assurance aspects of NRC 
or other Federal agency involvement?
    (c) What are the feasibility, economic, and assurance aspects of a 
smelter facility being dedicated to such material, either full-time or 
as a portion of its process capability?
    (d) What end use products could be manufactured under such a 
conditional use, e.g., bridge girders, sewer pipes, industrial coils? 
Would there be sufficient need for these products so that a process to 
manufacture them would be viable given the magnitude of material from 
NRC/AS licensed facilities and/or from other facilities having similar 
material?
    (e) What typical lifetimes might the conditional (authorized) uses 
have, and what would likely happen to the solid material after the 
lifetime was over? Could the material continue to be part of a 
conditional use, or would it become available for unrestricted use?
    (2) What criterion of acceptability should be used before allowing 
release of solid material to a conditional use (e.g., should dose-based 
or concentration-based criterion be used and what should it be?)
    With regard to landfill disposal:
    (1) The intent of the landfill disposal alternative is that the 
solid material be isolated from the public, and not be diverted to 
unrestricted use, either in transit or after disposal. Specific 
questions are:
    (a) Would placing the material in a RCRA Subtitle C site accomplish 
the goal of isolating the material from the public? If so, what 
controls are in place in a RCRA Subtitle C site to provide such 
assurance?
    (b) Would placing the material in a RCRA Subtitle D landfill 
accomplish the goal of isolating the material from the public? If so, 
what controls are in place in a RCRA Subtitle D site to provide such 
assurance?
    (c) What criteria of acceptability should be used before allowing 
disposal of solid material at a landfill such that the public and 
landfill workers are protected? In particular, should a different 
regulatory scheme be used depending on the radioactivity level of the 
material potentially to be placed in the landfill facility, i.e. lesser 
requirements if the potential dose is lower?
    (d) Is it necessary for NRC to maintain regulatory control to 
achieve the desired isolation of NRC regulated material from the 
public? If so, is there a need for NRC to license a RCRA landfill 
either under a specific or general license, or is an exemption with 
specific conditions adequate to cover material that has come from NRC-
licensed facilities?
    What cost considerations need to be taken into account and what 
possible additional assurance of isolation might be realized under 
these regulatory approaches?
    (2) If EPA and/or NRC rulemaking is developed in this area, would 
RCRA Subtitle C or Subtitle D landfill operators accept material which 
had been surveyed and released from a NRC-licensed facility?
    For either conditional use or landfill disposal
    (1) As a backup, should a ``cap'' be placed limiting the dose that 
would occur if the restrictions for the conditional use became no 
longer effective, or if the material being disposed of at a landfill 
was diverted or removed from the landfill, and the material wound up in 
an unrestricted use? If so, what should the cap value be?

V. Request for Comment and Announcement of Workshop

    To provide opportunity to discuss the issues noted in Section IV, 
we invite written and electronic comment. To supplement this request 
for comment, we also plan to hold a workshop on May 21-22, 2003, at NRC 
headquarters to discuss the alternatives. The workshop agenda will 
afford an opportunity to discuss the National Environmental Policy Act 
(NEPA) process (see Section VI of this FRN) and the alternatives being 
considered, with specific emphasis on building on NRC's earlier 
information collection efforts (see Section III.1). Because these 
earlier efforts did not obtain sufficient information to clearly 
indicate the viability of conditional use or landfill disposal, the 
workshop will focus on the feasibility of these alternatives as 
discussed in Section IV above, in particular with regard to the 
questions raised in Section IV. The first half of the first day of the 
workshop will focus on background, the NEPA process, and the 
alternatives being considered for controlling the disposition of solid 
materials. The second half of the first day and the majority of the 
second day of the workshop will focus on conditional use and landfill 
disposal. A detailed agenda will be made available in advance of the 
workshop. In doing so, we will be receptive to a range of options or 
scenarios for conditional use or landfill disposal to determine the 
feasibility of these options that (1) are effective, (2) are reasonably 
possible to implement, and (3) would increase public confidence in the 
process.

VI. Scoping Process for Environmental Impact Statement

    An environmental scoping process was initiated in June 1999 as part 
of issuance of the Issues Paper. The rationale for combining the two 
efforts was that issues raised in a scoping process and in the Issues 
Paper were similar and therefore it was an efficient use of 
stakeholder's time and energies to combine the two. As noted earlier, 
in August 2000 the Commission decided to defer a rulemaking in this 
area pending a study by the National Academies of alternatives for 
controlling the disposition of solid materials. Following completion of 
that study in March 2002, the Commission decided, in October 2002, to 
conduct an enhanced participatory rulemaking which considers 
alternatives for controlling the disposition of solid materials. Hence, 
this FRN provides an opportunity to announce this rulemaking effort and 
to re-open the earlier scoping process.
    In a rulemaking, the Commission must consider the effect of its 
actions on the environment in accordance with the National 
Environmental Policy Act (NEPA). Section 102(1) of NEPA requires that 
the policies, regulations, and public laws of the United States be 
interpreted and administered in accordance with the policies set forth 
in

[[Page 9602]]

NEPA. It is the intent of NEPA to have Federal agencies incorporate 
consideration of environmental issues into their decision-making 
processes.
    NRC regulations implementing NEPA are contained in 10 CFR Part 51. 
To fulfill its responsibilities under NEPA, the NRC would prepare a 
generic environmental impact statement (EIS) by analyzing alternative 
courses of action and the impacts and costs associated with those 
alternatives. A generic EIS would analyze alternatives for establishing 
requirements for controlling the disposition of solid materials. All 
reasonable alternatives associated with the proposed action would be 
analyzed to determine their impacts and costs.
    The Commission's regulations in 10 CFR 51.26 contain requirements 
for conducting a scoping process prior to preparation of an EIS, 
including preparation of a notice of intent in the Federal Register 
regarding the EIS and indication that the scoping process may include 
holding a scoping meeting. Requirements are contained in 10 CFR 51.27 
regarding the content of the notice of intent, in particular that it 
should describe the proposed action and describe possible alternatives 
to the extent that information is available. In addition, the notice of 
intent is to describe the proposed scoping process, including the role 
of participants, whether written comments will be accepted, and whether 
a public scoping meeting will be held.
    Participants in this scoping process on the environmental impacts 
of controlling the disposition of solid materials from licensed 
facilities may provide written or electronic comments and/or attend the 
workshop indicated under the DATES heading of this notice and provide 
oral comments on the proposed action and possible alternatives. Written 
(and electronic) comments on the proposed action and alternatives from 
the public, as well as from meeting participants, can be submitted as 
indicated under the DATES and ADDRESSES heading of this notice.
    According to 10 CFR 51.29, the scoping process is to address the 
following topics:
    (1) Define the proposed action. The NRC is considering whether to 
develop a regulation for controlling the disposition of solid materials 
that have no, or very small amounts of, radioactivity resulting from 
licensed operations.
    (2) Determine EIS scope and significant issues to be analyzed in 
depth. The NRC is considering analyzing the impacts and costs 
associated with rule alternatives for controlling the disposition of 
solid materials at licensed facilities. Information will be developed 
on (a) types, and contamination levels, of solid materials present at 
licensed facilities potentially available for release; (b) pathways of 
exposure to, and environmental impacts of, solid materials released 
from licensed facilities; and (c) regulatory alternatives and methods 
of approach for analysis of the alternatives. Information is 
specifically requested regarding inventory of solid materials at 
licensed facilities, including quantities and radioactivity levels, and 
how control processes at licensed facilities function so that materials 
from different areas of a facility are kept separate to assure that 
those materials with no, or very small amounts of, radioactivity do not 
become mixed with those with higher levels. Information is also 
requested on scenarios associated with the alternatives, and in 
particular with regard to viable conditional use and landfill disposal 
alternatives.
    (3) Identify and eliminate from detailed study issues which are not 
significant or which are peripheral or which have been covered by prior 
environmental review. The NRC has not yet eliminated any issues. 
Analysis of the scope of environmental impacts for this effort would be 
principally intended to provide input to decision-making for 
establishing acceptable regulatory alternatives for controlling the 
disposition of solid materials, and would not involve analysis of site-
specific issues which may arise in the licensing process at specific 
facilities. The extent to which the environmental analysis may be 
applicable to a site-specific NEPA process would be described in a 
draft EIS and draft rulemaking.
    (4) Identify any environmental assessments or environmental impact 
statements which are being or which will be prepared that are related 
but are not part of the scope of the EIS under consideration.
    None are being prepared by the NRC. The DOE is preparing a 
programmatic EIS on disposition of scrap metals.
    (5) Identify other environmental review or consultation 
requirements related to the proposed action. The NRC is obtaining 
contractor assistance in preparation of the generic EIS and cost 
information for use in the environmental analyses. The NRC has also 
placed contracts to obtain specific technical assistance regarding 
material inventories, exposure pathways, collective doses, and the 
capability of radiation survey instruments to practically and 
accurately detect radioactive contamination at levels near background.
    (6) Indicate the relationship between the timing of the preparation 
of environmental analysis and the Commission's tentative planning and 
decision making schedule. A draft generic EIS is scheduled to be issued 
for public comment in September 2004.
    (7) Identify any cooperating agencies. No cooperating agencies are 
involved at this time.
    (8) Describe the means by which an EIS would be prepared. As part 
of its rulemaking effort, NRC will prepare a draft EIS in accordance 
with its regulations in 10 CFR Part 51. Specifically, in accordance 
with 10 CFR Part 51.71, a draft EIS will be prepared using the 
considerations of the scoping process and will include a preliminary 
analysis which considers and balances the environmental and other 
effects of the proposed action and the alternatives available for 
reducing or avoiding adverse environmental and other effects, as well 
as the environmental, economic, technical and other benefits of the 
proposed action.
    In accordance with 10 CFR 51.29, at the conclusion of the scoping 
process, a concise summary of the determinations and conclusions 
reached, including the significant issues identified, will be prepared 
and a copy sent to each participant in the scoping process.

    Dated at Rockville, Maryland, this 21st day of February 2003.
    For the Nuclear Regulatory Commission.
Martin Virgilio,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 03-4752 Filed 2-27-03; 8:45 am]
BILLING CODE 7590-01-P