[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Notices]
[Pages 5173-5175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01053]


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DEPARTMENT OF ENERGY


High-Level Radioactive Waste Interpretation Limited Change to DOE 
Manual 435.1-1, Radioactive Waste Management Manual and Administrative 
Change to DOE Order 435.1, Radioactive Waste Management

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Notice.

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SUMMARY: The Department of Energy (Department or DOE) announces the 
availability of a limited change to DOE Manual 435.1-1, Radioactive 
Waste Management Manual, to formally incorporate the Department's 
interpretation of the statutory definition of high-level radioactive 
waste (HLW). In support of that effort, DOE made an administrative 
change to DOE Order 435.1, Radioactive Waste Management. The HLW 
interpretation was described in the Supplemental Notice Concerning U.S. 
Department of Energy Interpretation of High-Level Radioactive Waste, 
published in the Federal Register on June 10, 2019 (Supplemental 
Notice). The revised Manual includes DOE's interpretation of the 
statutory term HLW as defined in the Atomic Energy Act of 1954, as 
amended (AEA), and the Nuclear Waste Policy Act of 1982, as amended 
(NWPA).

ADDRESSES: This Federal Register Notice (Notice), the Supplemental 
Notice (which contains responses to public comments on the HLW 
interpretation) and other documents relevant to DOE's HLW 
interpretation are available on the Department's website at: https://www.energy.gov/em/high-levelradioactive-waste-hlw-interpretation. The 
revised Order and Manual are available at the DOE Office of 
Management's DOE Directives website at: https://www.directives.doe.gov/directives-browse#c8-operator=or&b_start=0.

FOR FURTHER INFORMATION CONTACT: Theresa Kliczewski and/or James Joyce, 
U.S. Department of Energy, Office of Environmental Management, Office 
of Waste and Materials Management (EM-4.2), 1000 Independence Avenue 
SW, Washington, DC 20585. Emails:

[[Page 5174]]

[email protected] and [email protected]. Phone number: 
(202) 586-5000.

SUPPLEMENTARY INFORMATION:

I. Background

    DOE Order 435.1, Radioactive Waste Management, establishes the 
requirements that DOE programs must follow in managing DOE radioactive 
waste to protect human health, safety, and the environment. The Order 
is accompanied by DOE Manual 435.1-1, Radioactive Waste Management 
Manual, which establishes the requirements that DOE must follow in 
managing DOE radioactive waste.
    In October 2018, the Department issued a Federal Register notice 
\1\ (October 10, 2018, FRN) seeking public comments on its HLW 
interpretation. The 90-day public comment period, including a 30-day 
extension to submit comments, invited public input in order to better 
understand stakeholder perspectives. The Federal Register notice sought 
to enhance public understanding of DOE's views of its legal authority 
and to increase transparency. DOE received a total of 5,555 comments 
from a variety of stakeholders: Members of the public, Native American 
tribes, members of Congress, numerous state and local governments, and 
one federal agency, the Nuclear Regulatory Commission (NRC). Of that 
number, there were roughly 360 distinct comments (that is, excluding 
duplicative form comments). DOE received both critical and supportive 
comments, with the majority of comments expressing concerns or 
questions relating to health and safety and environmental outcomes 
associated with the interpretation. Positive comments on the HLW 
interpretation were received from, among others, the NRC; the nuclear 
industry; DOE contractors; the Energy Facility Contractors Group; the 
city of Carlsbad, NM; Nye County, NV; Idaho Falls, ID, stakeholder 
groups such as Energy Communities Alliance; Savannah River Site (SRS) 
Community Reuse Organization; Tri-Cities Washington Economic 
Development Council; Hanford Communities; DOE National Laboratories; 
and individuals. Critical or negative comments were received from, 
among others, the Washington Department of Ecology; the Yakama Nation; 
the Consolidated Tribes of the Umatilla Indian Reservation; the Seneca 
Nation; the Shoshone-Bannock Tribes; and stakeholder groups such as the 
Natural Resources Defense Council, Nuclear Watch New Mexico, and 
Alliance for Nuclear Accountability; and individuals.
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    \1\ 83 FR 50909.
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    In June 2019, after careful consideration of all comments received 
on the October 2018 FRN, DOE issued the Supplemental Notice Concerning 
U.S. Department of Energy Interpretation of High-Level Radioactive 
Waste \2\ (June 10, 2019 FRN). The Supplemental Notice provided 
additional explanation of DOE's interpretation as informed by public 
review and comment and further consideration by DOE following the 
October 2018 FRN. The Supplemental Notice also provided responses to 
significant comments received through the public comment process. In 
the Supplemental Notice, DOE did not make any changes or revisions to 
current policies, legal requirements, or agreements with respect to 
HLW.
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    \2\ 84 FR 26835.
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    In its Supplemental Notice, DOE explained its interpretation of the 
term HLW, as defined in the AEA and NWPA.\3\ DOE has the long-standing 
authority and responsibility under the AEA to ensure that all DOE 
radioactive waste--including reprocessing waste--is managed and 
disposed of in a safe manner. The AEA and NWPA define HLW as:
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    \3\ 42 U.S.C. 10101 et seq.
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    (A) The highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentrations; and
    (B) Other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
    42 U.S.C. 10101(12); see 42 U.S.C. 2014(dd). In Paragraph A, 
Congress limited HLW to those materials that are ``highly 
radioactive.'' This limiting term applies to all reprocessing waste, 
including the ``liquid waste produced directly in reprocessing'' and 
``any solid material derived from such liquid waste.'' The use of the 
limiting term ``highly radioactive'' demonstrates that Congress 
intended to distinguish between reprocessing waste that is ``highly 
radioactive'' and waste that is not. If Congress had intended to define 
all reprocessing waste as HLW regardless of its radiological 
characteristics, it would not have included the ``highly radioactive'' 
requirement and instead defined HLW as ``all waste material resulting 
from the reprocessing of spent nuclear fuel.'' Similarly, for ``any 
solid material derived from'' the ``liquid waste produced directly in 
reprocessing,'' Congress also specified that in addition to being 
``highly radioactive'' it must also contain fission products in 
``sufficient concentrations.'' The terms ``highly radioactive'' and 
``sufficient concentrations'' are not defined in the AEA or the NWPA. 
By providing in Paragraph A that liquid reprocessing waste is HLW only 
if it is ``highly radioactive,'' and that solid material derived from 
liquid reprocessing waste is HLW only if it is ``highly radioactive'' 
and contains fission products in ``sufficient concentrations'' without 
further defining these standards, Congress left it to DOE, for its 
reprocessing wastes, to determine when the standards are met. That is 
what DOE has done through its interpretation. DOE has evaluated the 
meaning of those terms based on its historical knowledge, experience, 
and expertise in managing reprocessing wastes. DOE's interpretation is 
an articulation of the technical criteria that can be applied to 
individual waste streams on a case-by-case basis to determine whether 
the standard for HLW has been met. DOE also notes that in their 
comments on the interpretation, the NRC staff stated that they ``agree 
with the concept proposed in Federal Register October 10 Notice (83 FR 
50909) that radioactive waste may be classified and disposed of in 
accordance with its radiological characteristics.'' DOE places 
significant weight on the NRC's views of matters relating to the safe 
management and disposal of radioactive waste, including this HLW 
interpretation.
    As explained in the Supplemental Notice, DOE has the legal 
authority to interpret the term HLW in these statutes to determine that 
certain of its reprocessing wastes are not HLW based on their 
radiological characteristics. Accordingly, DOE interpreted those 
statutes to provide that reprocessing wastes are properly classified as 
non-HLW where the radiological characteristics of the waste, in 
combination with appropriate disposal facility requirements for safe 
disposal demonstrate that disposal of such waste are fully protective 
of human health and the environment. DOE revised the interpretation set 
forth in the October 2018 FRN after consideration of public comments, 
in particular those of the NRC and affected state and local 
stakeholders, in order to clarify its meaning and import. Based on 
comments received in response to the October 2018 FRN, DOE interpreted 
the statutes to provide that a reprocessing waste may be determined to 
be non-

[[Page 5175]]

HLW if the waste meets either of the following two criteria:
    (I) Does not exceed concentration limits for Class C low-level 
radioactive waste as set out in section 61.55 of title 10, Code of 
Federal Regulations, and meets the performance objectives of a disposal 
facility; or
    (II) Does not require disposal in a deep geologic repository and 
meets the performance objectives of a disposal facility as demonstrated 
through a performance assessment conducted in accordance with 
applicable requirements.
    Reprocessing waste meeting either I or II of the above criteria is 
non-HLW, and--pursuant to appropriate processes--may be classified and 
disposed in accordance with its radiological characteristics in an 
appropriate disposal facility provided all applicable requirements of 
the disposal facility are met.
    During 2019-2020, in determining whether and how to implement the 
HLW interpretation specific to a particular waste stream, DOE initiated 
a public process pursuant to the National Environmental Policy Act 
(NEPA) to analyze the potential environmental impacts associated with 
disposing of that waste. DOE completed its environmental analysis and 
decided to apply the HLW interpretation to a specific waste stream, 
shipping eight gallons of the SRS Defense Waste Processing Facility 
(DWPF) recycle wastewater to the Waste Control Specialists, LLC Federal 
Waste Facility, a licensed commercial low-level radioactive waste 
facility located near Andrews, Texas, for stabilization and disposal as 
non-HLW.\4\
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    \4\ https://www.energy.gov/nepa/doeea-2115-commercial-disposal-defense-waste-processing-facility-recycle-wastewater-savannah.
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    Each reprocessing waste stream has unique radiological 
characteristics and, accordingly, the interpretation will continue to 
be implemented for subsequent proposed actions on a case-by-case basis, 
following consideration of: Evaluation and characterization of specific 
reprocessing waste streams in conjunction with the waste acceptance 
criteria and requirements of a specific waste disposal facility; input 
from affected stakeholders (e.g., federal, state, local and tribal 
officials; and members of the public); and compliance with applicable 
federal and state laws, regulations, and agreements.

II. Summary Description of Changes

    DOE Manual 435.1-1 has been updated to include as Departmental 
policy DOE's interpretation of the statutory term HLW, as defined in 
the AEA and NWPA and consistent with the Supplemental Notice. 
Specifically, Chapter II of the Manual is revised to include a new 
Section C that sets forth the HLW interpretation and provides a basis 
for its use by DOE. DOE Manual 435.1-1 also is revised to set forth the 
roles and responsibilities of Field Managers and the Deputy Assistant 
Secretary for Waste and Materials Management with respect to the 
application of the HLW interpretation.
    The HLW interpretation limited change to DOE Manual 435.1-1 does 
not affect DOE's current policies and practices relating to 
determinations under Chapter II.B of the Manual or under Section 3116 
of the Ronald W. Reagan National Defense Authorization Act for Fiscal 
Year 2005.\5\ Section 3116 will continue to apply to reprocessing waste 
covered under Section 3116. Chapter II.B of the Manual will continue to 
be used for tank closures not covered by Section 3116 and may be used 
in other cases determined to be appropriate by DOE.
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    \5\ Public Law 108-375.
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    In addition, DOE is canceling DOE Guide 435.1-1, Implementation 
Guide for Use with DOE Manual 435.1-1, as it is out of date. The 
cancellation of DOE Guide 435.1-1 is recognized in the administrative 
change to DOE Order 435.1. The definition of ``reprocessing waste'' in 
the Guide has now been incorporated in DOE Manual 435.1-1.
    These directives can be viewed at https://www.directives.doe.gov/.

III. Reviews Under the National Environmental Policy Act

    The objective of the limited change to DOE Manual 435.1-1 is to 
continue to ensure that all DOE radioactive waste, including 
reprocessing waste, is managed in a manner that protects worker and 
public health and safety, and the environment. When proposing to apply 
the HLW interpretation to future waste streams, DOE will prepare the 
necessary environmental analyses and documentation in accordance with 
Council on Environmental Quality regulations and DOE NEPA implementing 
procedures at 40 CFR parts 1500 through 1508 and 10 CFR part 1021, 
respectively, as was done with the application of the interpretation to 
the disposal of SRS DWPF recycle wastewater \6\ (August 10, 2020 FRN).
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    \6\ 85 FR 48236.
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Signing Authority

    This document of the Department of Energy was signed on January 13, 
2021, by William I. White, Senior Advisor for Environmental Management 
to the Under Secretary for Science, Office of Environmental Management, 
pursuant to delegated authority from the Secretary of Energy. That 
document with the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, January 13, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-01053 Filed 1-15-21; 8:45 am]
BILLING CODE 6450-01-P