ML021270008

West Valley 04/17/02 Public Meeting Transcript Attachments. Includes Meeting Agenda, Federal Register Notice & Slides

ML021270008
Person / Time
Site:	West Valley Demonstration Project, P00M-032
Issue date:	04/17/2002
From:	Office of Nuclear Material Safety and Safeguards
To:
References
+KBR1SISP20050613, -nr
Download: ML021270008 (104)

Text

NOTICED MEETING AGENDA AT WEST VALLEY DEMONSTRATION PROJECT April 17, 2002 7:00 p.m. - 10:00 p.m.

7:00 p.m. Welcome, Meeting Objectives and Ground rules Francis "Chip" Cameron Facilitator 7:15 p.m. Introductory material on status of the West Valley Site U.S. Department of Energy (DOE)

Alice Williams New York State Energy Research and Development Authority (NYSERDA)

Paul Piciulo 7:30 p.m. U.S. Nuclear Regulatory Commission (NRC) Role and Responsibilities/NRC Policy Statement on West Valley Larry W. Camper, NRC Chad J. Glenn, NRC 8:15 p.m. Roles and Responsibilities of Other Regulatory Agencies U.S. Environmental Protection Agency (EPA)

Paul Giardina New York State Department of Environmental Conservation (NYSDEC)

Paul Merges New York State Department of Health (NYSDOH)

Gary Baker 9:00 p.m. Open discussion with federal and state agencies 10:00 p.m. Adjourn

IX ACRONYMS AEC Atomic Energy Commission ALARA As Low as Reasonably Achievable CAA Clean Air Act CERCLA Comprehensive Environmental Response Compensation and Liability Act CMS Corrective Measures Study CWA Clean Water Act DCGLs Derived Concentration Guideline Limits DOE US Department of Energy ECL Environmental Conservation Law EIS Environmental Impact Statement EPA US Environmental Protection Agency FFCA Federal Facilities Compliance Act GAO US General Accounting Office HEAST Health Effects Assessment Summary Tables HLW High-Level Waste IRIS Integrated Risk Information System LLRW Low ..evel Radioactive Waste LTR License Termination Rule MARSSIM Multi-Agency Radiation Survey and Site Investigation Manual MCL Maximum Contaminant Level NDA NRC-Licensed Disposal Area NEPA National Environmental Policy Act NESHAP National Emission Standards for Hazardous Air Pollutants NPL National Priority List NRC US Nuclear Regulatory Cormmission NYCRR New York Code of Rules and Regulations NYSDEC New York State Department of Environmental Conservation NYSDOH New York State Department of Health NYSDOL New York State Department of Labor NYSERDA New York State Energy Research and Development Authority RCRA Resource Conservation and Recovery Act SDA State-Licensed Disposal Area SDWA Safe Drinking Water Act SEQRA State Environmental Quality Review Act SPDES State Pollutant Discharge Elimination System SWMUs Solid Waste Management Units TAGM Technical Administrative Guidance Memorandum WNYNSC Western New York Nuclear Service Center WVDP West Valley Demonstration Project WVDPA West Valley Demonstration Project Act

U.S. NUCLEAR REGULATORY COMMISSION HEADQUARTERS Washington, D.C. 20555-0001 Name Phone Number E-mail Address Larry Camper 301-415-7855 Iwc@ nrc.,qov Claudia Craig 301-415-6602 cmcl @nrc.qov Chad Glenn 301-415-6722 cigl @nrc.qov James Lieberman 301-415-2746 ixl @nrc.qov Facilitator Chip Cameron (301)-415-1642 fxc@nrc.gov U.S. NUCLEAR REGULATORY COMMISSION REGION I King of Prussia, PA 19406 Name Phone Number E-mail Address Neil Sheelhan (610)-337-5331 nas@nrc.qov

Federal Re~ister/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5003 Federal Re2ister/ Vol. 67, No. 22/Friday, February 1, 2002/Notices 5003 North, 11555 Rockville Pike (first floor), Nuclear Plant, Unit 1.1 The amendments solicit public comment on the draft.

would change facility technical This final policy statement was Rockville, Maryland. Publicly available developed after considering public records will be accessible electronically specifications to allow the plants to provide incore irradiation services for comments on the draft, and continues to from the Agencywide Documents apply the LTR as the criteria for the Access and Management Systems the United States Department of Energy for the production of tritium for national WVDP at the West Valley site.

(ADAMS) Public Electronic Reading Room on the internet at the NRC Web defense purposes. EFFECTIVE DATE: February 1, 2002.

site, http://www.nrc.gov/reading-rm/ The Board is comprised of the following administrative judges: FOR FURTHER INFORMATION, CONTACT:

adams/html. Persons who do not have Thomas S. Moore, Chair, Atomic Safety Chad Glenn, Office of Nuclear Material access to ADAMS or who encounter Safety and Safeguards, Mail Stop T problems in accessing the documents and Licensing Board Panel, U.S.

Nuclear Regulatory Commission, 8F37, U.S. Nuclear Regulatory located in ADAMS, should contact the Commission, Washington, DC 20555 NRC PDR Reference staff by telephone Washington, DC 20555-0001 0001.

at 1-800-397-4209, 301-415-4737, or Dr. Peter S. Lam, Atomic Safety and by e-mail to pdrlnrc.gov. Licensing Board Panel, U.S. Nuclear SUPPLEMENTARY INFORMATION:

Dated at Rockville, Maryland, this 28th day Regulatory Commission, Washington, DC 20555-0001 I. Introduction of January 2002. II. Background (Draft Policy Statement)

For the Nuclear Regulatory Commission. Dr. Thomas S. Elleman, Atomic Safety mI.Overview of Public Comments Christopher Gratton, and Licensing Board Panel, U.S. IV. Summary of Public Comments and Sr. ProjectManager,Section 2, Project Nuclear Regulatory Commission, Responses to Comments DirectorateI,Division of LicensingProject Washington, DC 20555-0001 A. Comments on the LTR Management,Office of NuclearReactor All correspondence, documents, and B. Comments on LTR guidance Regulation. other materials shall be filed with the C. Comments on implementing the LTR administrative judges in accordance D. Comments on NRC's process for

[FR Doc. 02-2498 Filed 1-31-02; 8:45 am] prescribing the decommissioning criteria BILLING CODE 7590-01-P with 10 CFR 2.701.

E. Comments on jurisdictional aspects of Issued at Rockville, Maryland, this 28th prescribing the decommissioning criteria day of January 2002. F. Comments on the use of incidental NUCLEAR REGULATORY G. Paul Bollwerk, III, waste criteria at the West Valley site COMMISSION Chief AdministrativeJudge, Atomic Safety G. Comments related to how the site should be decommissioned

[Docket Nos. 50-327-OLA, 50-328-OLA, & and LicensingBoard Panel. H. Comments on the wording of the draft 50-390-OLA; ASLBP No. 02-796-01-OLA] [FR Doc. 02-2500 Filed 1-31-02; 8:45 am] policy statement BILLING CODE 7590-01-P I. Other comments Tennessee Valley Authority; Sequoyah V. Final Policy Statement Nuclear Plant, Units I & 2; Watts Bar Nuclear Plant, Unit 1; Establishment of NUCLEAR REGULATORY I. Introduction Atomic Safety and Licensing Board COMMISSION This final policy statement is being Pursuant to delegation by the Decommissioning Criteria for the West issued under the authority of the WVDP Commission dated December 29, 1972, Valley Demonstration Project (M-32) at Act, to prescribe decommissioning published in the Federal Register, 37 FR the West Valley Site; Final Policy criteria for the WVDP.

28,710 (1972), and sections 2.105, 2.700, Statement 2.702, 2.714, 2.714a, 2.717, 2.721, and HI.Background (Draft Policy Statement) 2.772(j) of the Commission's AGENCY: Nuclear Regulatory From 1966 to 1972, under an Atomic Regulations, all as amended, an Atomic Commission. Energy Commission (AEC) license, Safety and Licensing Board is being ACTION: Final policy statement. Nuclear Fuel Services (NFS) established to preside over the following reprocessed 640 metric tons of spent proceeding:

SUMMARY

On December 3, 1999 (64 FR 67952), the Commission issued, for fuel at its West Valley, New York, Tennessee Valley Authority, Sequoyah public comment, a draft policy facility-the only commercial spent fuel Nuclear Plant, Units 1 & 2, Watts Bar Nuclear statement that would approve the reprocessing plant in the U.S. The Plant, Unit 1. facility shut down, in 1972, for application of the U.S. Nuclear This Board is being established Regulatory Commission's (NRC's) modifications to increase its seismic pursuant to two notices of consideration License Termination Rule (LTR), as the stability and to expand its capacity. In of issuance of operating license decommissioning criteria for the West 1976, without restarting the operation, amendment, proposed no significant Valley Demonstration Project (WVDP) at NFS withdrew from the reprocessing hazards consideration determination, the West Valley site. It also held a business and returned control of the and opportunity for a hearing published public meeting, on January 5, 2000, to facilities to the site owner, the New in the Federal Register (66 FR 65,000 York State Energy Research and and 65,005 (Dec. 17, 2001)). The 1Although the TVA license amendment requests Development Authority (NYSERDA).

proceeding involves petitions for that are the subject of the WPIT and BREDL hearing The reprocessing activities resulted in intervention submitted January 16, requests that triggered this Licensing Board about 2.3 million liters (600,000 gallons) constitution notice were submitted separately, of liquid high-level waste (HLW) stored 2002, by We the People, Inc., Tennessee, involve different facilities, and were the subject of (WPIT) and the Blue Ridge separate hearing opportunity notices, both below ground in tanks, other radioactive Environmental Defense League amendments are challenged by each of the wastes, and residual radioactive (BREDL), respectively, challenging petitioners. Under the circumstances, one Licensing contamination.

Board is being established to consider both requests by the Tennessee Valley contested TVA applications in a consolidated The West Valley site was licensed by Authority (TVA) to amend the operating proceeding. Any objection to this consolidation by AEC, and then NRC, until 1981, when licenses for the Sequoyah Nuclear Plant, any of the participants to the proceeding should be the license was suspended to execute raised with the Licensing Board promptly.

Units I and 2, and the Watts Bar

• NN4 Federal Reeister/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5004 F6N, NRC in its decision on on January 5, 2000. As a result of that the 1980 WVDP Act, Pub. L.96-368.1 meeting, the Commission extended the The WVDP Act authorized the U.S. decommissioning criteria. The draft EIS was published in 1996. Subsequently, comment period to April 1, 2000. This Department of Energy (DOE), in final policy statement was developed cooperation with NYSERDA, the owner DOE decided to descope this EIS into two separate EISs to address: (1) Near after considering the public comments of the site and the holder of the on the draft. This final policy statement suspended NRC license, to: (1) Carry out term decontamination and waste management at the WVDP; and (2) recognizes that a flexible approach to a liquid-HLW management decommissioning is needed both to demonstration project; (2) solidify, decommissioning, long-term monitoring, and stewardship of the ensure that public health and safety and transport, and dispose of the HLW that the environment are protected and to exists at the site; (3) dispose of low-level site.2 The NRC will not be a Cooperating Agency on the decontamination and define a practical resolution to the waste (LLW) and transuranic waste challenges that are presented by the site.

produced by the WVDP, in accordance waste management EIS because the Commission is not prescribing criteria In that regard, the Commission has with applicable licensing requirements; decided to prescribe the LTR criteria for and (4) decontaminate and for decontamination activities considered in this EIS. The NRC will be the WVDP at the West Valley site, decommission facilities used for the reflecting the fact that the applicable WVDP, in accordance with a Cooperating Agency on the EIS for decommissioning under the WVDP Act. decommissioning goal for the entire requirements prescribed by NRC. NRC-licensed site is compliance with NYSERDA is responsible for all site The WVDP Act does not address license termination of the NRC license for the the requirements of the LTR. However, facilities and areas outside the scope of the Commission recognizes that health the WVDP Act. Although NRC site, or portions thereof. Any such license termination will be conducted and safety and cost-benefit suspended the license covering the site considerations may justify the until completion of the WVDP, NRC has (if license termination is possible and pursued) under the Atomic Energy Act evaluation of alternatives that do not certain authorities, under the WVDP fully comply with the LTR criteria. For Act, that include prescribing (AEA) of 1954, as amended. If NYSERDA pursues either full or partial example, the Commission would decommissioning criteria for the tanks consider an exemption allowing higher and other facilities in which the HLW license termination of the NRC license, NRC will need to conduct an limits for doses on a failure of solidified under the project was stored, institutional control if it can be the facilities used in the solidification of environmental review to determine if an EIS is necessary to support license rigorously demonstrated that protection the waste, and any material and of the public health and safety for future hardware used in connection with the termination.

After public review of the draft EIS, generations could be reasonably assured WVDP. It should also be noted that DOE the WVDP convened the West Valley through more robust engineered barriers is not an NRC licensee and DOE's and/or increased long-term monitoring decommissioning activities for the Citizen Task Force (CTF), in early 1997, to obtain stakeholder input on the EIS. and maintenance. The Commission is WVDP at the West Valley site are prepared to provide flexibility to assure conducted under the WVDP Act and not The CTF recommendations for the preferred alternative in the EIS were cleanup to the maximum extent the Atomic Energy Act (AEA). technically and economically feasible.

The WVDP is currently removing completed in July 1998. In the latter half It should be noted that the subpart E HLW from underground tanks at the of 1997 (during the period that the CTF was working on its recommendations), of 10 CFR part 20 (LTR) does contain site, vitrifying it, and storing it onsite for provisions for alternate criteria and eventual offsite disposal in a Federal NRC's LTR was published (62 FR 39058; July 21, 1997). subpart N of 10 CFR part 20 contains4 repository. The vitrification operations provisions for potential exemptions.

are nearing completion. In addition to The Commission published a draft policy statement on decommissioning with both alternatives based on a site the vitrified HLW, the WVDP operations specific analysis which demonstrates have also produced LLW and criteria for the WVDP at the West Valley site, for public comment, and a notice that public health and safety will be transuranic waste which, under the Act, adequately protected with reasonable must be disposed of in accordance with of a public meeting in the Federal Register on December 3, 1999 (64 FR assurance. If the NRC license cannot be applicable licensing requirements. terminated in a manner which provides Besides the HLW at the site, the spent 67952).3 The public meeting, to solicit public comment on the draft, was held reasonable assurance of adequate fuel reprocessing and waste disposal protection of the public health and operations resulted in a full range of 2 66 FR 16447 (March 26, 2001). safety, then the appropriate Commission buried radioactive wastes and structural 3 Before issuing the draft policy statement for action may be to require a long term or and environmental contamination at the comment, the NRC staff proposed decommissioning even a perpetual license for an site. criteria for West Valley to the Commission in a appropriate portion of the site until, if In 1989, DOE and NYSERDA began to Commission Paper entitled "Decommissioning and when possible, an acceptable develop a joint Environmental Impact Criteria for West Valley," dated October 30, 1998 alternative is developed to permit actual (SECY-98-251). On January 12, 1999, the Statement (EIS) for project completion Commission held a public meeting, on SECY-98 license termination.

5 and site closure, and to evaluate waste 251, to obtain input from interested parties. Based disposal and decommissioning on the results from this meeting, the Commission 4 Exemptions to NRC regulations can be issued to alternatives. Because the WVDP Act issued a Staff Requirements Memorandum (SRM), NRC licensees if the Commission determines that authorizes NRC to prescribe on January 26, 1999, requesting additional the exemption is authorized by law and would not information on the staffs proposed result in undue hazard to life or property.

decommissioning criteria for the project, decommissioning criteria for West Valley. In NYSERDA is the licensee for the West Valley site NRC and DOE agreed on NRC's response to the January 26, 1999, SRM, the staff and DOE is acting as a surrogate for NYSERDA until participation as a cooperating agency on provided SECY-99-057, to the Commission, the NYSERDA license is reinstated at the end of the the EIS, with DOE and NYSERDA, to aid entitled "Supplement to SECY-98--251, WVDP.

'Decommissioning Criteria for West Valley."' Based s If a long term or perpetual license is necessary on the contents of SECY-98-251, SECY-99-057, I The State of New York licenses a low-level for any portion of the site, it is the Commission's and written and oral comments from interested intent that that portion of the site will be waste disposal area at the West Valley site. Unless parties, the Commission issued an SRM on June 3, otherwise indicated, the terms "West Valley site" 1999, detailing its decisions on the decontaminated in the interim to the extent or "site" used in this Policy Statement refers to the technically and/or economically feasible. In decommissioning criteria for West Valley.

NRC-licensed portions of the site.

Federal Reizister/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5005 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5005 Based on the public comments separate dose standards for various (E) Comments on jurisdictional 7 aspects of prescribing the received, the Commission has revisited sections of the NRC-licensed site.

decommissioning criteria; the issue of "incidental waste" at West mI. Overview of Public Comments (F) Comments on the use of incidental Valley. The Commission has decided to Twenty-eight organizations and waste criteria at West Valley; issue incidental waste criteria to clarify (G) Comments related to how the site the status of and classify any residual individuals submitted written comments on the draft policy statement. should be decommissioned (waste wastes present after cleaning of the Comments also were provided at the disposition, consideration of pathways high-level radioactive waste (HLW) tanks at West Valley. Previously, the public meeting held on January 5, 2000. for dose, and contaminant transport);

The commenters represented a variety (H) Comments on the wording of the NRC has provided advice to DOE draft policy statement (use of the word of interests. Comments were received concerning DOE's classification of "prescribe," paraphrasing the LTR and certain waste as incidental waste for from Federal and State agencies, citizen and environmental groups, a native other statements on West Valley); and, clean-up of HLW storage tanks at both (I) Other comments (implications of American organization, and individuals.

Hanford and Savannah River. As noted the policy statement regarding native the LTR The commenters offered over 200 above, NRC intends to apply Americans, transuranic waste issue].

decommissioning criteria as the specific comments and represented a diversity of views. The commenters The comments received from the decommissioning goal for the entire public in writing during the comment site. The addressed a wide range of issues NRC-licensed portion of the period and verbally during the January Commission has decided that the most concerning the decommissioning and closure of the WVDP and West Valley 5, 2000, public meeting have been recent advice provided to DOE for the factored into the Commission's site. The reaction to the draft policy classification of incidental waste at decision-making on this final policy statement was generally supportive.

Savannah River, with some additional the appropriate However, viewpoints were expressed on statement.

modifications, provides criteria which should be applied to the LTR and LTR guidance and how A. Comments on the LTR West Valley. Specifically, the both should be applied at West Valley.

In addition, there were comments on The draft policy statement presented Commission is now providing the NRC's LTR as the decommissioning NRC's process for prescribing the following criteria for classification of criteria for the WVDP and the West the incidental waste (which will not be decommissioning criteria and other issues specific to West Valley. Valley site. Although there was general deemed to be HLW) at West Valley: support for the use of the LTR as the (1) The waste should be processed (or IV. Summary of Public Comments and decommissioning criteria for both the should be further processed) to remove Responses to Comments WVDP and West Valley site, there were key radionuclides to the maximum The following sections A through I a number of comments on the LTR.

extent that is technically and represent major subject areas and Specifically:

economically practical; and describe the principal public comments A.1 Comment. A number of (2) The waste should be managed, so received on the draft policy statement commenters were concerned that the that safety requirements comparable e to (organized according to the major use of the LTR's restricted release the performance objectives in 10 CFR subject areas) and present NRC concept, which includes the use of part 61 subpart C, are satisfied. responses to those comments. institutional controls, to decommission (A) Comments on the LTR (restricted West Valley may not be appropriate Consistent with the overall approach as low as because of the magnitude of the waste in applying the LTR to the WVDP and release; institutional controls; reasonably achievable (ALARA); currently on-site and the potential for to the entire NRC-licensed site following criteria; this waste to provide an unacceptable financial assurance; alternate conclusion of the WVDP, the resulting dose to members of the public if time line for dose calculations);

calculated dose from the incidental controls fail.

waste is to be integrated with all the (B) Comments on LTR guidance group, engineered barriers, cost/ A. 2 Response. The LTR criteria other calculated doses from the residual (critical consider doses to members of the public radioactive material at the NRC-licensed benefit analysis);

(C) Comments on implementing the from the loss of institutional controls.

site to ensure that the LTR criteria are The loss of institutional controls will met. This is appropriate because the LTR (continued Federal or State onsite presence, perpetual license); need to be considered in the DOE/

Commission does not intend to establish NYSERDA EIS.8 Absent an exemption (D) Comments on NRC's process for prescribing the decommissioning from the LTR provision in 10 CFR part addition, if a long-term or perpetual license is 20, a site, or part thereof, that cannot determined to be appropriate, the NRC takes no criteria (when to prescribe the criteria; position on which entity should be the long-term use of the LTR "Generic Environmental meet the restricted release provisions of

icensee as that decision, as well as decisions Impact Statement" (GElS) to support the the LTR, must remain under an NRC regarding long term financial contributions, should use of the LTR at West Valley; NRC's license. The Commission will consider be made pursuant to negotiations involving DOE, New York, and possibly the U.S. Congress. Also. National Environmental Policy Act $DOE has decided to descope the draft 1996 EIS under the WVDP Act, the NRC is only addressing (NEPA) obligation for prescribing the into two separate ElSs. DOE will be the lead agency the public health and safety aspects of West Valley decommissioning criteria); on the EIS that will address WVDP facility decommissioning selected portions of the site. decontamination and management of waste Other potential issues between DOE and NYSERDA currently stored at the site. NRC expects to be kept concerning the West Valley Site are not within 7 Applying the LTR, the total annual dose to an average member of the critical group for the site, informed of progress as required under the DOE/

NRC's authority to resolve. NRC Memorandum of Understanding (MOU). DOE including the resulting does from the incidental I The dose methodology used in 10 CFR part 61 and NYSERDA will be the lead agencies on the EIS subpart C is different from that used in the newer waste, should be less than or equal to 25 mrem/yr that will address decommissioning. NRC expects to 10 CFR part 20 subpart E. However, the resulting TEDE. The Commission is not establishing a participate as an EIS cooperating agency. Hereafter, allowable doses are comparable and NRC expects separate dose standard for the incidental waste such that the average member of the critical group this second EIS where NRC will be a cooperating DOE to use the newer methodology in 10 CFR part agency will either be referred to as the 20 subpart E. Part 61 is based on International potentially receive a dose of 25 mrem/yr TEDE from the rest of the NRC-licensed site and 25 mrem/yr decommissioning EIS or the DOE/NYSERDA EIS, Commission on Radiological Protection Publication unless otherwise noted.

2 (ICRP 21 and part 20 is based on ICRP 26. TEDE from the incidental waste.

5006 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5006 FdrlRgse/o.6,N.2/rdy eray1 02/oie radioactivity at the site. Depending B. Comments on LTR guidance granting an exemption to the LTR criteria if it determines the exemption is upon the outcome of the EIS review, the A variety of comments were received authorized by law and would not result Commission may need to consider the on NRC's LTR guidance as it relates to in undue hazard to life or property. The need for environmental mitigation. West Valley. Since the time that NRC's Commission intends to involve the A. 7 Comment. Some commenters LTR became final in 1997, the NRC staff public in the processing of any were concerned about the possible has been developing guidance to exemption request consistent with the application of alternate criteria, as support it. In September 2000, the NRC "public participation" provision in 10 to West Valley, released guidance for decommissioning, allowed under the LTR, CFR 20.1405, and will involve the or that the policy statement should at in the form of a standard review plan Environmental Protection Agency (EPA) least clearly identify the dose limit cap (SRP) ("NMSS Decommissioning if the exemption request involves under alternate criteria. Standard Review Plan," NUREG-1727).

criteria greater than the dose criteria of B. 1 Comment. A number of 10 CFR 20.1402, 20.1403(b), or A. 8 Response. In addition to the expressed concern with commenters 20.1403(d)(1)(i)(A). Such an exemption unrestricted release limit of 25 mrem/yr how the critical group would be defined alternate request will also require the approval of TEDE, the LTR also contains for dose assessment purposes.

the Commission consistent with 10 CFR criteria for restricted release, which B. 2 Response. For the LTR, the 20.1404(b). allows for a dose limit of up to 100 critical group means the group of A. 3 Comment. Some commenters mrem/yr TEDE, with restrictions in place, and caps the public dose limit at individuals reasonably expected to also were concerned about the adequacy receive the greatest exposure to residual of the LTR's financial assurance 100 or 500 mrem/yr TEDE if the radioactivity for any applicable set of requirements for maintaining restrictions fail. Applying alternate site requires circumstances (10 CFR 20.1003). The institutional controls for restricted criteria to a specific "Statement of Considerations" for the release at West Valley, especially if the opportunities for public involvement, LTR notes that the critical group would financial assurance relies on future coordination with the EPA, and direct be the group of individuals reasonably Government appropriations that are not approval of the Commission. The expected to be the most highly exposed, guaranteed. alternate criteria in the LTR were considering all reasonable potential A. 4 Response. In general, it is developed for difficult sites to minimize future uses of the site, based on assumed that when a Government the need to consider exemptions to the prudently conservative exposure agency certifies that it will seek LTR, although exemptions also may be assumptions and parameter values appropriations, to maintain institutional considered. Under appropriate within modeling calculations. NRC's controls for the purposes of protecting circumstances and based on a site SRP for decommissioning addresses two public health and safety, the specific analysis, the Commission generic critical group scenarios-the appropriations will be authorized. The considers the application of alternate Commission believes that it is "resident farmer" and the "building criteria protective of public health and occupancy" scenarios. The SRP also reasonable to expect Federal and State safety. Absent a detailed site-specific agencies to meet their commitments to presents approaches for establishing analysis, it is premature for the site-specific critical groups based on obtain funding for institutional controls to make any judgments, at of the Commission specific land use, site restrictions, and/

to provide for the protection this time, on the acceptability or non public health and safety. or site-specific physical conditions.

acceptability of applying alternate DOE/NYSERDA derivation of the A. 5 Comment. A number of exemptions to the WVDP or also concerned that criteria or critical groups for West Valley will need commenters were the time line specified for dose any portion of the NRC-licensed site. In to be addressed in the EIS documents.

calculations in the LTR (1000 years) is any event, neither the alternate criteria In addition to NRC review and sites like West in the LTR nor exemptions will be comment, the EIS documents will be too short for difficult Valley. approved by the Commission without available for public review and A. 6 Response. In the development full prior public participation, comment.

of the LTR, the Commission considered involvement of the EPA, and a B. 3 Comment. There were also comments seeking a time period for Commission determination that there is several comments relating concerns that dose analysis longer than 1000 years. reasonable assurance that there would long-term stewardship costs and Section F.7 in the LTR "Statement of not be undue hazard to life and impacts on special populations will not Considerations," 62 FR 39058 (July 21, property. be properly factored into the cost/

1997). The Commission concluded that A. 9 Comment. There were also benefit analysis, or that there should be for the types of facilities and source comments about the use of the ALARA better guidance provided on what terms considered, it was reasonable to process in the LTR at West Valley. Some should be considered in the cost/benefit use a 1000-year period. However, the believed that the ALARA process might analysis.

West Valley site presents some unique be used to justify dose limits higher B. 4 Response. DOE and NYSERDA challenges in that significant quantities than those allowed by the LTR. will determine the extent to which these of mobile, long-lived radionuclides are issues are covered in the DOE/

A. 10 Response. As stated present on site. Because under NEPA an LTR does allow for NYSERDA EIS. In addition, NRC will evaluation of reasonably foreseeable previously, the review and comment on any cost/

releases with different dose limits.

impacts is required, the Commission ALARA is used to reduce benefit analysis in the EIS. The cost/

Generally, believes that an analysis of impacts benefit analysis that DOE/NYSERDA beyond 1000 years should be provided doses below authorized limits. Under for West Valley will need to be the LTR, the ALARA process is not used develop in the DOE/NYSERDA EIS. Thus, 25 mrem/yr part of the EIS documents available for above the information will need to be evaluated to to permit doses public review and comment.

determine if peak doses might occur TEDE limit without restrictions, the 100 mrem/yr TEDE limit with restrictions, B. 5 Comment. Some commenters after 1000 years and to define dose suggested that there should be criteria consequences and impacts on potential or the 500 mrem/yr TEDE cap if for what are allowable engineered long-term management of residual restrictions fail.

5007 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 50 C. Comments on Implementing the LTR D.1.3, and D.1.5 below, that NRC barriers and whether or not they are withhold assigning the LTR as the considered institutional controls. C. 1 Comment. There were some decommissioning criteria until NRC B. 6 Response. Because of the wide comments identifying who should be does a site-specific analysis of the range of residual radioactive the long-term steward of the site if long environmental effects of contamination encountered at term stewardship is required as part of decommissioning West Valley.

decommissioning sites licensed by NRC, site closure. Some commenters also D.1.1 Comment. The LTR GEIS the LTR and NRC's decommissioning provided suggestions on how site long (NUREG-1496) does not support the use guidance are not prescriptive as to the term stewardship should be maintained of the LTR at a complex site like West criteria for, or acceptability of, site at West Valley if it is needed (onsite Valley; therefore, a specific EIS for this specific institutional controls and staff, perpetual license). action needs to be completed by NRC to engineered barriers. The "Statement of C. 2 Response. NRC expects that finalize the criteria.

Considerations" for the LTR might be these site-specific issues will be covered D.1.2 Response. Although the LTR read to conclude that engineered in the DOE/NYSERDA EIS and GEIS did not specifically address the barriers are included within addressed in the preferred alternative. decommissioning of a spent fuel institutional controls. However, neither The identification of a long-term reprocessing site, it did evaluate the term is defined. In the Commission's custodian is not an NRC responsibility decommissioning of a range of reference view, "engineered barriers" referred to but will be determined from facilities (e.g., fuel cycle facilities and in the "Statement of Considerations" for negotiations involving DOE and reactors). In promulgating the LTR, the the LTR are distinct and separate from NYSERDA and possibly the U.S. Commission stated in Section VI of the institutional controls. Used in the Congress. From the NRC perspective, "Statement of Considerations" that it general sense, an engineered barrier both DOE and NYSERDA represent will conduct an environmental review could be one of a broad range of barriers governmental entities and either would to "determine if the generic analysis with varying degrees of durability, be acceptable as a long-term custodian. encompasses the range of environmental robustness, and isolation capability. C. 3 Comment. One commenter impacts at the particular site." The Thus, NRC guidance in Appendix I of requested consideration of how the LTR Commission further stated that it "will the SRP on the LTR distinguishes would be implemented on the conduct an independent environmental institutional controls from physical decommissioned portions of the site if review for each site-specific controls and engineered barriers. there were areas of the site that could decommissioning decision where land Institutional controls are used to limit not meet the LTR.

use restrictions or institutional controls intruder access to, and/or use of, the site C. 4 Response. Although the LTR are relied upon by the licensee or where to ensure that the exposure from the does not specifically address differing a single site, NRC alternative criteria are proposed" as it residual radioactivity does not exceed release standards on recognized that the environmental the established criteria. Institutional recognizes that the approach to impacts for these cases cannot be controls include administrative decommissioning at West Valley may the site being analyzed on a generic basis. Thus, the mechanisms (e.g., land use restrictions] include portions of environmental impacts from the and may include, but not be limited to, released for unrestricted use, and application of the criteria to the WVDP physical controls (e.g., signs, markers, portions of the site being released for will need to be evaluated for the various restricted use, as well as portions of the landscaping, and fences] to control alternative approaches being considered access to the site and minimize site remaining under license, because of in the process before NRC decides disturbances to engineered barriers. a failure to meet the LTR. In the whether to accept the preferred There must be sufficient financial Commission's view, the LTR is alternative for meeting the criteria assurance to ensure adequate control sufficiently flexible to allow for such permitted by the LTR. NRC expects to and maintenance of the site and circumstances. In particular, the be able to rely on the DOE/NYSERDA institutional controls must be legally Commission believes that for those EIS for this purpose. NRC does not enforceable and the entity charged with portions of the site that are unable to anticipate the need to prepare its own their enforcement must have the demonstrate compliance with the LTR's duplicative EIS as NRC can consider the the dose capability, authority, and willingness to restricted release requirements, environmental impacts described in the enforce the controls. Generally, limits should be viewed as goals in DOE/NYSERDA EIS in approving the engineered barriers are passive man order to ensure that cleanup continues particular decommissioning criteria for made structures or devices intended to to the maximum extent that is the WVDP under the LTR. As an EIS improve a facility's ability to meet a technically and economically feasible. cooperative agency, NRC may adopt all site's performance objectives. The Commission also believes that after or parts of the lead EIS agency's NEPA Institutional controls are designed to cleanup to the maximum extent documents. Under this arrangement, if restrict access, whereas engineered technically and economically feasible is NRC is satisfied with the final DOE/

barriers are usually designed to inhibit accomplished, alternatives to release NYSERDA EIS, then NRC will adopt it water from contacting waste, limit under the LTR criteria may need to be to fulfill its NEPA responsibilities under releases, or mitigate doses to intruders. contemplated. Specific examples of the WVDP Act. If NRC is not satisfied The isolation capability, durability, and these alternatives are a perpetual license with the final DOE/NYSERDA EIS, then exemptions robustness of a specific barrier will need for some parts of the site or it will adopt as much of it as possible to be evaluated in the DOE/NYSERDA from the LTR. The NRC expects that and modify or supplement it as these issues will be fully addressed in EIS. The ability of a barrier to inhibit necessary. In such a situation, NRC access of the inadvertent intruder is a the DOE/NYSERDA EIS. would publish its own draft EIS separate issue from whether a barrier is D. Comments on NRC's Processfor document for public review and an institutional control. The dose Prescribingthe Decommissioning comment before finalizing it. Once analyses for a site with engineered Criteria finalized, NRC's West Valley NEPA barriers will need to consider the DOE recommended, for the responsibilities would be fulfilled under reasonableness of a breach by an D.1.

the WVDP Act.

inadvertent intruder. reasons described in comments D.1.1,

5008 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5008 Federal Register/Vol. 57, No. 22/Friday, February 1, 2002/Notices The WVDP Act does not address D.1.6 Response. The Commission prescribe the dose limits in EPA's license termination for the site. The does not believe that prescribing the decommissioning guidance to West Valley, because they are more protective actual license termination for the site, if LTR criteria for the WVDP at the West and when pursued, will be conducted Valley site as the applicable and could be applied to the site after decommissioning goal for the entire NRC regulatory authority ceases.

under the Atomic Energy Act (AEA) of NRC-licensed site will limit DOE from Likewise, a comment was made that the 1954, as amended. At the time of NRC the AEA (if developing acceptable closure options decommissioning criteria issue between license termination under for the NDA or any other part of the NRC and EPA should be resolved before license termination is pursued), NRC the criteria are prescribed.

will need to conduct an environmental NRC-licensed site. Prescribing the LTR EIS is now is warranted because NYSERDA, as E.4 Response. The Commission review to determine if an a licensee of the Commission, is subject believes that the LTR dose limits plus necessary to support license ALARA requirements provide termination. to the LTR after NYSERDA's NRC D.1.3 Comment. The NRC's license is reactivated at the conclusion protection comparable to dose limits prescription of decommissioning of the WVDP. It follows that DOE preferred by EPA in its guidance should also be subject to the LTR as it documents. The Commission notes that criteria is not being coordinated with is the surrogate for NYSERDA in the LTR was promulgated by the the current NEPA process as suggested of decommissioning facilities used for the Commission in 1997 pursuant to an by the DOE/NRC Memorandum project. Therefore, it is appropriate to Administrative Procedure Act Understanding (MOU) on West Valley.

D.1.4 Response. The process prescribe the LTR now for the WVDP, rulemaking accompanied by a generic MOU with the site-specific decommissioning EIS and voluminous regulatory analysis, described in the DOE/NRC (Section B (4)), for consulting on a site issues resolved through the process including consideration of numerous specific analysis of decommissioning described in Response D.1.4 above. public comments. EPA's guidance requirements was developed to allow Applying the LTR to the WVDP will documents have gone through no such provide an opportunity to DOE, as public process. The Commission DOE and NRC to evaluate a range of approaches to specifically address the would be given to any licensee, to believes that decommissioning the site decommissioning of the WVDP. consider a range of approaches to to the LTR criteria ensures that public Thereafter, NRC was to prescribe the achieve acceptable decommissioning, health and safety and the environment consistent with public dose limits. If will be protected. Although there is a decommissioning criteria. At the time no comprehensive parts of the NRC-licensed site cannot lack of agreement between NRC's rule the MOU was signed, general criteria existed for meet the LTR, the Commission will and EPA's guidance documents on the consider alternatives to the criteria in appropriate upper bounds on decommissioning NRC-licensed sites.

Decommissioning criteria were the LTR if it can be demonstrated that decommissioning criteria, the NRC public health and safety will be practice of applying ALARA principles determined on a case-by-case basis.

protected. The NRC expects that these to NRC dose limits will most likely However, through the rulemaking in 1997, which issues will be fully addressed in the result in an NRC approved process completed DOE/NYSERDA EIS. decommissioned site that satisfies the promulgated the LTR, there was an EPA criteria as well. In fact, EPA has evaluation of various regulatory E. Comments on JurisdictionalAspects indicated that it believes that the 25 approaches for decommissioning NRC of Prescribingthe Decommissioning licensed sites and the selection of a mrem/yr TEDE cleanup dose limit in the Criteria LTR will be "protective at this site." See range of regulatory approaches with criteria, in the final rule. E.1 Comment. Many commenters Letter from Paul Giardina, EPA to John Except as provided in 10 CFR suggested that, because the State Greeves, NRC (July 23, 2001). Because 20.1401, the LTR applies to all NRC's licensed Disposal Area (SDA) is the LTR requirements do ensure licensed sites. The Commission immediately adjacent to the WVDP and adequate protection of the public health recognized, as noted in the "Statement part of the West Valley site, the and the environment, and, as indicated allowable dose from the closure and/or in the preceding paragraph, EPA agrees of Considerations" for the LTR, that with this conclusion for West Valley, there would be sites with complex decommissioning of it should be decommissioning issues that would be considered comprehensively with the the Commission believes that it is not allowable dose from the NRC regulated necessary to wait for a formal resolution resolved by site-specific environmental reviews which considered various part of the site. of the differences between NRC and alternative methods for E.2 Response. NRC's authority only EPA on generic decommissioning decommissioning and application of the extends to the NRC-licensed portion of standards before proceeding with LTR. In the Commission's view, the use the site. It also should be noted that the prescribing site-specific of the two-step prescribing process LTR recognizes that people can be decommissioning criteria for the WVDP.

exposed to up to four sources of As stated previously, EPA will be first, the decision to use the LTR, and radiation and still meet the nationally involved in any proposal to use second, to use the DOE/NYSERDA EIS, criteria in the LTR or of the different and internationally accepted public alternate to consider the impacts from 10 CFR part 20, if so dose limit of 100 mrem/yr TEDE in part exemptions approaches for decommissioning, before requested.

deciding whether to accept the 20. In considering the environmental particular approach that DOE intends to impacts for the entire site, the DOE/ F. Comments on the Use of Incidental use to meet the LTR-is consistent with NYSERDA EIS will need to consider the Waste Criteriaat West Valley Site the intent of the MOU that various number of sources to which the critical group may be exposed. However, NRC F.1 Comment. Many comments were approaches be analyzed in developing received concerning the use of the the WVDP decommissioning criteria. continues to dialogue with State at West Valley.

D.1.5 Comment. Finalizing the LTR representatives to exchange information incidental waste criteria want NRC to Most commenters did not now as the decommissioning criteria for on issues of mutual interest regarding allow for the "reclassification" of any the WVDP at the West Valley site limits potential sources of public exposure.

E.3 Comment. A few comments were HLW at this site to waste incidental to the options for closure of the NRC reprocessing. If it were allowed, it licensed Disposal Area (NDA). made indicating that NRC ought to

Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5009 should be done in a way that provides incidental waste determination need not site activities. In this regard, the impacts be revisited. of identifying waste as incidental to for public participation. One commenter reprocessing and not HLW should be agreed that it will have to be done, but In light of these considerations, the Commission is now providing the considered in the DOE's environmental that the Commission should prescribe reviews.

the criteria that are necessary and following criteria for incidental waste appropriate for the incidental waste determinations. G. Comments Related to How the Site (1) The waste should be processed (or Should Be Decommissioned determination. One other commenter believes that use of DOE's Order 435.1 should be further processed) to remove key radionuclides to the maximum G.1 Comment. There were many is the appropriate process for comments and suggestions that all the reclassifying residual HLW as extent that is technically and economically practical; and waste at this site should be perhaps incidental. temporarily stabilized, or packaged and (2) The waste should be managed so F.2 Response. Section 6 (4) of the that safety requirements comparable to perhaps temporarily stored, but WVDP Act defines HLW as including the performance objectives in 10 CFR ultimately removed from the site. There both (1) liquid wastes which are part 61 subpart C, are satisfied. were also some comments on what are produced directly in reprocessing, dry The resulting calculated dose from the the important pathways for, and man solid material derived from such liquid incidental waste is to be integrated with made barriers to control, contaminant waste and (2) such other material as the all the other calculated doses from the transport at the site.

Commission designates as HLW for the remaining material at the entire NRC G.2 Response. The Commission purposes of protecting the public health licensed site to ensure that the LTR appreciates the public's identification and safety. Since 1969, the Commission criteria are met. This is appropriate of, and input on, these issues. The has recognized the concept of waste because the Commission does not decisions related to alternative incidental to reprocessing, concluding approaches to decommissioning the intend to establish separate dose that certain material that otherwise West Valley site will be evaluated in the standards for various sections of the would be classified as HLW need not be DOE/NYSERDA EIS, and reviewed by NRC-licensed site.

disposed of as HLW and sent to a Previously the NRC has provided NRC for their ability to protect public geologic repository because the residual advice to DOE concerning DOE's health and safety and the environment.

radioactive contamination after The EIS will also be available for public classification of certain waste as decommissioning is sufficiently low as incidental waste for clean-up of HLW comment before being finalized.

not to represent a hazard to the public storage tanks at both Hanford and H. Comments on the Wording of the health and safety. Consequently, Savannah River. As noted above, NRC Draft Policy Statement incidental waste is not considered HLW. intends to apply the LTR criteria for the H. 1 Comment. Several comments See, Proposed Rule-Siting of WVDP at the West Valley site, reflecting were made about the last part of a Commercial Fuel Reprocessing Plants the fact that the applicable and Related Waste Management sentence in the Draft Policy Statement decommissioning goal for the entire under the section entitled Facilities (34 FR 8712; June 3, 1969), NRC-licensed site is in compliance with Final Rule-Siting of Commercial Fuel "Decommissioning Criteria for the the requirements of the LTR. The WVDP." It states that "* *

• following Reprocessing Plants and Related Waste Commission has decided that the most Management Facilities (35 FR 17530; the completion of DOE/NYSERDA's EIS recent advice provided to DOE for the and selection of its preferred alternative, November 14, 1970), Advance Notice of classification of incidental waste at the Proposed Rule-making to Define HLW 9 the NRC will verify that the specific Savannah River site, with some criteria identified by DOE is within the (52 FR 5992, 5993; February 27, 1987), additional modifications, as the Proposed Rule-Disposal of Radioactive LTR and will prescribe the use of appropriate criteria that should be specific criteria for the WVDP." Many Waste (53 FR 17709; May 18, 1988), applicable to West Valley. These criteria Final Rule-Disposal of Radioactive suggested that prescribing the use of the are risk-informed and performance specific criteria after the selection of the Waste (54 FR 22578; May 25, 1989), and based in that the criteria allow DOE the Denial of Petition for Rulemaking: States preferred alternative in the EIS is flexibility to develop innovative confusing, not what is meant by the of Washington and Oregon, (58 FR approaches to meeting the performance 12342; March 3, 1993). WVDP Act, and would allow adjustment objectives in part 61. In effect, DOE of the criteria after the EIS is completed.

The Commission believes that should undertake cleanup to the H.2 Response. As addressed above practical considerations mandate early maximum extent that is technically and in response to the various comments, resolution of the criteria that should economically practical and should the Commission's intent is to prescribe guide the incidental waste achieve performance objectives the generally applicable requirements of determination. Vitrification of the high consistent with those we demand for the the LTR now, before the completion of level wastes at West Valley is nearing disp-)sal of low-level waste. If satisfied, the site-specific EIS. After completion of completion, at which point DOE intends these criteria should serve to provide the site-specific DOE/NYSERDA EIS, to close down the vitrification facility. protection of the public health and NRC will evaluate the compliance status To delay providing the Commission's safety and the environment and the of the preferred alternative with respect view for incidental waste could resulting calculated dose would be to the LTR, as described in the adversely impact the DOE, as it may integrated with the resulting calculated Commission's final policy statement.

prove extraordinarily expensive after doses for all other remaining material at This is a two-step process. The first step the vitrification facility is shut down to the NRC-licensed site. It is the is prescribing the LTR, a set of criteria provide vitrification capacity for any Commission's expectation that it will that allows for unrestricted releases, additional waste that must be shipped apply this criteria at the WVDP at the restricted releases, and alternative elsewhere for disposal. Indeed, in light site following the completion of DOE's releases, that applies to all NRC of the fact that the site will ultimately licensees. Prescribing decommissioning revert to control by NYSERDA under an 9 See NRC Staff Requirements Memorandum criteria now for the WVDP allows DOE NRC license, both NYSERDA and NRC "SECY-99-0284--classification of Savannah River Residual Tank Waste as Incidental," May 30, 2000. to develop alternative approaches for have an interest in ensuring that the

5010 Federal Register/Vol. 67, No. 22 / Friday, February 1, 2002 / Notices meeting those criteria and consider their 1.2 Response. NRC staff has V. Final Policy Statement impacts in its site-specific EIS. examined the draft policy on Statement of Policy The second step is for NRC to decommissioning criteria for the WVDP evaluate on a site-specific basis the and has not identified any implications Decommissioning Criteria for the West approach for meeting the LTR. This will in relation to the Commission's Valley Demonstration Project (WVDP) be done after the DOE/NYSERDA EIS is guidance regarding Native Americans. Under the authority of the WVDP Act, completed and NRC adopts it or The Commission has directed the NRC the Commission is prescribing NRC's otherwise produces its own NEPA staff to implement the spirit and letter License Termination Rule (LTR) (10 evaluation of the site-specific criteria of President Clinton's April 29, 1994, CFR part 20, subpart E) as the developed in the DOE/NYSERDA EIS. Executive Memorandum to ensure that decommissioning criteria for the WVDP, NRC will be evaluating DOE's and the rights of sovereign Tribal reflecting the fact that the applicable NYSERDA's preferred alternative for governments are fully respected and to decommissioning goal for the entire meeting the LTR and other alternatives operate within a government-to NRC-licensed site is in compliance with presented in the DOE/NYSERDA EIS. the requirements of the LTR. The government relationship with Federally This process is in accordance with the criteria of the LTR shall apply to the recognized Native American Tribes. In "Statement of Considerations" for the decommissioning of: (1) The High Level addition, the staff has been directed to LTR, which describes the relationship Waste (HLW) tanks and other facilities address Native American issues on a between the GEIS for the LTR and site in which HLW, solidified under the case-by-case basis, operating with Tribal specific decommissioning actions. A project, was stored; (2) the facilities Governments on a government-to site-specific EIS is prepared in cases used in the solidification of the waste; where the range of environmental government basis. In response to the and (3) any material and hardware used impacts of the alternatives at a specific interest expressed by the Seneca Nation in connection with the WVDP. Also site may not be within those considered of Indians in NRC activities at WVDP, under authority of the WVDP Act, the in the GEIS for the LTR. This is similar the NRC staff has added the Seneca Commission is issuing criteria for the to the approach that NYSERDA, as an Nation to its service list which will classification of reprocessing wastes that NRC licensee, would need to meet if the provide the Seneca Nation with copies will likely remain in tanks at the site license were not being held in abeyance. of documents and meeting notices after the HLW is vitrified, subsequently The Commission is satisfied that this related to NRC's activities at West referred to as "incidental waste."

approach is within the intent of the Valley that the NRC may publically The resulting calculated dose from the WVDP Act for the prescription of release. The NRC staff will address WVDP at the West Valley site is to be decommissioning requirements by NRC. issues raised by the Seneca Nation of integrated with all other calculated The WVDP Act does not address Indians in accordance with the doses to the average member of the license termination for the site. The Commission's guidance. critical group from the remaining actual license termination for the site, if 1.3 Comment. One commenter material at the entire NRC-licensed site and when possible, will be conducted to determine whether the LTR criteria claims that NRC is required by law to under the AEA, as amended. At the time are met. This is appropriate because the define "transuranic waste" for West of NRC license termination under the Commission does not intend to establish Valley and determine the disposition of separate dose standards for various AEA (if license termination is pursued),

that waste. sections of the NRC-licensed site. The NRC will need to conduct an environmental review to determine if an 1.4 Response. Section 6(5) of the LTR does not apply a single public dose EIS is necessary to support actual WVDP Act defines transuranic waste for criterion. Rather, it provides for a range license termination. The language from the WVDP in terms of radioisotopes and of criteria. Briefly stated, for the draft policy statement was changed the lower limit of concentration of those unrestricted release, the LTR specifies a in the final policy statement to reflect isotopes. It also states that NRC has the dose criterion of 25 mrem/yr total the process described above. authority to prescribe a different effective dose equivalent (TEDE) to the H.3 Comment. The policy statement concentration limit to protect public average member of the critical group should not paraphrase the LTR and health and safety. NRC's position on plus as low as reasonably achievable others' statements on West Valley. this issue is detailed in a letter from M. (ALARA) considerations (10 CFR H.4 Response. The Commission was Knapp, NRC, to W. Bixby, DOE, dated 20.1402). For restricted release, the LTR attempting to provide context to the August 18, 1987. This letter states that, specifies an individual dose criterion of draft policy statement by paraphrasing to demonstrate protection of public 25 mrem/year TEDE plus ALARA the LTR or others' statements on West health and safety, the transuranic considerations using legally enforceable Valley. To avoid confusion or institutional controls established after a concentration of project wastes misinterpretation in the Final Policy public participatory process (10 CFR acceptable for on-site disposal will be Statement, it will contain a disclaimer 20.1403). Even if institutional controls such that, by analysis, safety fail, individual doses should not exceed to the effect that notwithstanding any requirements comparable to the paraphrasing of the LTR in the Policy 100 mrem/yr TEDE. If it is performance objectives in 10 CFR part demonstrated that the 100 mrem/yr Statement, the language of the LTR itself 61 subpart C are satisfied. The resulting is controlling in determining how it is TEDE criterion in the event of failure of calculated dose from the transuranic institutional controls is technically not to be applied at West Valley. The waste is to be integrated with all the achievable or prohibitively expensive, paraphrasing of others' statements will other calculated doses from the the individual dose criterion in the be avoided.

remaining material at the NRC-licensed event of failure of institutional controls I. Other Comments site to ensure that the LTR criteria are may be as high as 500 mrem/yr TEDE.

1.1 Comment. What are the met. As with incidental waste, the However, in circumstances where implications of the policy statement Commission is not establishing a restricted release is required, if the 100 regarding NRC's policies regarding separate dose standard that applies mrem/yr TEDE criterion is exceeded, Native Americans. solely to the transuranic waste. and/or the use of alternate criteria has

Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5011 been determined, the area would be Impact Statement (EIS)" 1 and selection of the site covered by the WVDP Act, it rechecked by a responsible government of the preferred alternative, NRC will is NRC's intent to authorize that any entity no less frequently than every 5 verify that the approach proposed by exemptions or alternate criteria years and resources would have to be DOE is appropriate. The WVDP Act authorized for DOE to meet the set aside to provide for any necessary does not address license termination of provisions of the WVDP Act will also control and maintenance of the the NRC license for the site, or portions apply to NYSERDA at the time of site institutional controls. Finally, the LTR thereof, which will be conducted (if license termination, if license permits alternate individual dose license termination is possible and termination is possible. The NRC site criteria of up to 100 mrem/yr TEDE plus pursued) under the Atomic Energy Act license termination is not addressed in ALARA considerations for restricted (AEA) of 1954, as amended. If full or the WVDP Act. Therefore the NRC site release, with institutional controls partial license termination of the NRC license termination is subject to the established after a public participatory license is pursued, at that time NRC will provisions of the Atomic Energy Act of process (10 CFR 20.1404). The need to conduct an environmental 1954 as amended.

Commission itself must approve use of review to determine if an EIS is Use of Incidental Waste Criteria at West the alternative criteria, after necessary to support license Valley coordination with the U.S. termination.

Section 6 (4) of the WVDP Act defines Environmental Protection Agency (EPA) Decommissioning Criteria for the NRC HLW as including both (1) liquid wastes and after consideration of the NRC Licensed Disposal Area (NDA) and which are produced directly in staff's recommendations and all public State-Licensed Disposal Area (SDA) reprocessing, dry solid material derived comments.10 NRC will apply the criteria in the LTR from such liquid waste and (2) such The Commission also recognizes that to the NDA within the West Valley site, other material as the Commission decommissioning of the West Valley site because the NDA is under NRC designates as HLW for the purposes of will present unique challenges, which jurisdiction. However, the NDA presents protecting the public health and safety.

may require unique solutions. As a some unique challenges in that some of The Commission believes that practical result, the final end-state may involve a this material contains significant considerations mandate early resolution long-term or even a perpetual license or quantities of mobile, long-lived of the criteria that will guide the other innovative approaches for some radionuclides which could potentially classification of incidental waste. The parts of the site where clean up to the remain in this facility. It is recognized vitrification of the wastes at West Valley LTR requirements are prohibitively that because of the nature of is nearing completion, at which point expensive or technically impractical. It radioactivity at West Valley, reasonably DOE intends to close down the is important that all parts of the site be foreseeable impacts might occur after vitrification facility. To delay defining decommissioned to the extent 1000 years, under certain scenarios. classification criteria for incidental technically and economically feasible. Under NEPA, an evaluation of the waste could adversely impact the DOE Therefore, in addition, the Commission reasonably foreseeable impacts is as it may prove extraordinarily expects decontamination to the required. Therefore, the Commission expensive after the vitrification facility maximum extent technically and/or believes that an analysis of impacts is shut down to provide vitrification economically feasible for any portion of beyond 1000 years should be provided capacity for any additional waste that the site remaining under a long term or in the DOE/NYSERDA EIS which will must be shipped elsewhere for disposal.

perpetual license or for which an be subject to public comment. Indeed, in light of the fact that the site exemption from the LTR is sought. In NRC does not have regulatory will ultimately revert to control by sum, the Commission believes that for authority to apply the LTR criteria to the NYSERDA under an NRC license, both those portions of the site that are unable SDA adjacent to the WVDP site NYSERDA and NRC have an interest in to demonstrate compliance with the boundary, because the SDA is regulated ensuring that the incidental waste LTR's restricted release requirements, by the State of New York. However, determination need not be revisited.

the dose limits should be viewed as NRC recognizes that a cooperative In light of these considerations, the goals, in order to ensure that cleanup approach with the State to the extent Commission is now providing the continues to the maximum extent that is practical should be utilized to apply the following criteria that should be applied technically and economically feasible. If LTR criteria in a coordinated manner to to incidental waste determinations.

complying with the LTR's restricted the NRC-licensed site and the SDA. (1) The waste should be processed (or release requirements is technically Decommissioning Criteria for License should be further processed) to remove impractical or prohibitively expensive, CSF-1 (NRC Site License) key radionuclides to the maximum then an exemption from the LTR may be extent that is technically and appropriate, provided that protection of The criteria in the LTR will also apply economically practical; and to the termination of NYSERDA's NRC (2) The waste should be managed so the public and the environment can be license on the West Valley site after that maintained. that safety requirements comparable to license is reactivated. For those portions the performance objectives in 10 CFR The Commission's application of the 12 LTR to the WVDP is a two-step process: part 61 subpart C, are satisfied.

"DOE has decided to descope the draft 1996 EIS Consistent with the overall approach (1) NRC is now prescribing the into two separate EISs. DOE will be the lead agency on the EIS that will address WVDP facility in applying the LTR to the WVDP and application of the LTR; and (2) after the decontamination and management of waste to the entire NRC-licensed site following completion of the site-specific currently stored at the site. NRC expects to be kept Department of Energy (DOE)/New York informed of progress as required under the DOE/

"12The dose methodology used in 10 CFR part 61 State Energy Research and Development NRC Memorandum of Understanding (MOU). DOE and NYSERDA will be the lead agencies on the EIS subpart C is different from that used in the newer Authority (NYSERDA) Environmental that will address decommissioning. NRC expects to 10 CFR part 20 subpart E.However, the resulting participate as an EIS cooperating agency. allowable doses are comparable and NRC expects 10The material set out in the text is a brief Hereinafter, this second EIS where NRC will be a DOE to use the newer methodology in 10 CFR part cooperating agency will either be referred to as the 20 subpart E. part 61 is based on International summary of the LTR. Notwithstanding the words Commission on Radiological Protection Publication used in the text, the language of the LTR governs decommissioning EIS or the DOE/NYSERDA EIS, unless otherwise noted. 2 (ICRP 2) and part 20 is based on ICRP 26.

this matter.

5012 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5012 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices For NEPA purposes, DOE is SECY-98-251; (4) SECY-99-057, conclusion of the WVDP, the resulting "Supplement to SECY-98-251, calculated dose from the incidental considered the lead Federal agency.

NRC, in view of its responsibilities 'Decommissioning Criteria for West waste is to be integrated with all the Valley;'" (5) the Commission's vote other calculated doses from material under the WVDP Act, is considered a cooperating agency for this EIS and is sheets on SECY-98-251 and SECY-99 remaining material at the entire NRC 057; (6) the Commission's SRM of June licensed site. participating in the development of the DOE/NYSERDA EIS. NRC does not 3, 1999, on SECY-98-251 and SECY Previous Burials Authorized Under 10 anticipate the need to prepare its own 99-057; (7) the draft policy statement CFR Part 20 duplicative EIS, since it can consider issued December 3, 1999; (8) the the environmental impacts described in transcript of the public meeting held The "Statement of Considerations" for January 5, 2000; and (9) the public the DOE/NYSERDA EIS in approving the LTR, Section C.3, Other Exemptions comments on the draft policy statement the particular decommissioning criteria (62 FR 39074) provided that in regard to for the WVDP under the LTR. Under can be obtained electronically on NRC's past burials the Commission "* *

• home page at the Commission's this arrangement, if NRC is satisfied would continue to require an analysis of with the DOE/NYSERDA EIS, this EIS Activities link (http://www.nrc.gov/

site-specific overall impacts and costs in will fulfill the NEPA responsibilities for NRC/COMMISSION/activities.htmI).

deciding whether or not exhumation of NRC under the WVDP Act. If NRC is not Dated at Rockville, Maryland, this 25th day previous buried waste is necessary for satisfied with the final DOE/NYSERDA of January, 2002.

specific sites. In addition, the general EIS, then NRC will adopt as much of it For the Nuclear Regulatory Commission.

exemption provisions of 10 CFR part 20 as possible and modify or supplement it Annette Vietti-Cook, are available to consider unique past as necessary. In such a situation, NRC burials on a case-by-case basis." The Secretaryof the Commission.

would publish its own draft EIS NDA contains significant amounts of [FR Doc. 02-2373 Filed 1-31-02; 8:45 am]

document for public review and buried radioactive material that was comment before finalizing it. Once BILLING CODE 7590-41-P previously authorized under older finalized, NRC's West Valley NEPA provisions of part 20. This material will responsibilities would be fulfilled under require appropriate evaluation as part of NUCLEAR REGULATORY the WVDP Act. COMMISSION site license termination. The WVDP Act does not address Environmental Analysis license termination for the site. License [Docket Nos. 50-250 and 50-2511 termination of the NRC license for the An EIS is not needed at this step of site, or portions thereof, is conducted (if Florida Power and Light Company the process of prescribing the LTR license termination is possible) under Turkey Point Plant, Units 3 and 4 because the Commission is not the AEA. If NYSERDA pursues either Notice of Availability of the Final establishing a new requirement for the full or partial license termination of the Supplement 5 to the Generic site. This site is licensed to NYSERDA NRC license, at that time NRC will need Environmental Impact Statement and, therefore, is already subject to the to conduct an environmental review to Regarding License Renewal for the LTR by operation of the Commission's determine if an EIS is necessary to Turkey Point Plant, Units 3 and 4 regulations. DOE in essence is acting as support license termination. Notice is hereby given that the U. S.

a surrogate for NYSERDA. The Nuclear Regulatory Commission (NRC)

Availability of Documents environmental impacts of applying the has published a final plant-specific LTR to NRC licensees were evaluated in NRC's final policy statement on Supplement 5 to the Generic the Generic Environmental Impact decommissioning criteria for West Valley is also available at NRC's Public Environmental Impact Statement (GEIS),

Statement (GEIS), NUREG-1496, that NUREG-1437, regarding the renewal of supported the LTR. In promulgating the Electronic Reading Room link (http://

www.nrc.gov/NRC/ADAMS/ index.html) operating licenses DPR-31 and DPR-41 LTR, the Commission stated, in Section for the Turkey Point Plant, Units 3 and VI of the "Statement for Considerations" on NRC's home page (http://

www.nrc.gov). Copies of documents 4, for an additional 20 years of that it will conduct an environmental operation. The Turkey Point Plant units review to "determine if the generic cited in this section are available for inspection and/or reproduction for a fee are operated by Florida Power and Light analysis encompasses the range of Company (FPL). Turkey Point Plant is environmental impacts at the particular in the NRC Public Document Room, 11555 Rockville Pike, Room O-1F21, located in Dade County, Florida.

site." The Commission further stated Possible alternatives to the proposed that it "will conduct an independent Rockville, MD 20852. The NRC Public Document Room is open from 7:45 a.m. action (license renewal) include no environmental review for each site action and reasonable alternative specific decommissioning decision to 4:15 p.m., Monday through Friday, except on Federal holidays. Reference methods of power generation.

where land use restrictions or In Section 9.3 of the report:

institutional controls are relied upon by service and access to documents may also be requested by telephone (301 The staff recommends that the Commission the licensee or where alternative criteria determine that the adverse environmental are proposed" as it recognized that the 415-4737 or 800-397-4209), between 8:30 a.m. and 4:15 p.m.; or by e-mail impacts of license renewal for Turkey Point environmental impacts for these cases Units 3 and 4 are not so great that preserving cannot be analyzed on a generic basis. (PDR@nrc.gov); fax (301-415-3548); or a the option of license renewal for energy letter (NRC Public Document Room, The environmental impacts from the planning decisionmakers would be application of the criteria will need to Mailstop O-1F13, Washington, DC unreasonable. This recommendation is based be evaluated for the various alternative 20555-0001). In addition, copies of: (1) on (1) the analysis and findings in the approaches being considered in the SECY-98-251, "Decommissioning Generic Environmental Impact Statement for Criteria for West Valley;" (2) the License Renewal of Nuclear Power Plants, process before NRC decides whether to NUREG-1437; (2) the ER [Environmental accept the preferred alternative for transcript of the public meeting held January 12, 1999; (3) the Commission's Report] submitted by FPL; (3] consultation meeting the criteria permitted by the with other Federal, State, and local agencies; LTR. NRC intends to rely on the DOE/ SRM of January 26, 1999, concerning (4) the staff's own independent review; and NYSERDA EIS for this purpose. the January 12, 1999, public meeting on

• tI f' II A TfDV tfBIRAIai,%LI LJ.O. Ut.LCflfl m fl4JJL.Pi '.Jfl I t,,S,*IVI,,OflJ,* I NRC FORM 659 U.0. P1l,,10 LIZ/._raIm -.. l,.~ ,,l~.I II*lllll O ll~

(10-2000)

NRC PUBLIC MEETING FEEDBACK Meeting Meeting Date:

Title:

The NRC recognizes the public's interest in the proper regulation of nuclear activities and is committed to understanding and including public input into our decisions. The NRC seeks to elicit public involvement early in the regulatory process so that safety concerns that may affect a community can be resolved in a timely and practical manner. This process is considered vital to assuring the public that the NRC is making sound, balanced decisions about nuclear safety. If you would like more information about NRC, please visit our web site at www.nrc.gov.

1. Why did you attend this meeting? 10. Was the written material useful in understanding the topic?

a. I am a local resident

b. I work for an interested organization a. Very b. Somewhat c. Not at all

c. I am concerned about environmental issues

d. I am concerned about economic issues 11. Were NRC's presentations and material presented in

e. Other clear, understandable language?

- a. Yes -- b. No

2. Were you familiar with the meeting topic prior to coming today?

12. In your opinion, did the meeting achieve its stated purpose?

a. Very b. Somewhat c. Not at all

a. Yes b. No

3. How did you find out about this meeting?

a. NRC mailing list d. Internet 13. Has this meeting helped you with your understanding of the topic?

b. Newspaper e. Other

c. Radio/TV a. Greatly b. Somewhat c. Not at all

4. Have you attended an NRC meeting before?

Sa. Never -- c. 3 to 5 tin nes 14. How well did NRC staff respond to your concerns at this

d. More than 5 times meeting?

b. 1 or 2 times

a. My concerns were directly addressed

5. Was sufficient notice given in advance of the meeting?

a. Yes b. No b. I was provided an alternate source of information to address my concerns

6. How well do you feel you understand the NRC's role with c. I did not raise my concerns at this meeting regard to the issues discussed today?

a. Very well b. Somewhat c. Not at all d. I raised my concerns but am not satisfied with the response

7. Were you able to find all of the supporting information you wanted prior to the meeting? 15. Was adequate time allotted for discussion with NRC staff on the topic of today's meeting?

a. Yes

b. I did not try to find any information a. Yes b. No

c. No

8. Was the purpose of the meeting made clear in the 16. How satisfied are you overall with the NRC staff who preliminary information you received? participated in the meeting?

a. Yes b. No a. Very b. Somewhat c. Not at all

9. In your opinion, were people's questions answered 17. Were the next steps in this process clearly explained, clearly, completely and candidly? including how you can continue to be involved?

a. Yes -- b. No a. Yes b. No If you would like someone to contact you, please provide your name and phone number or email.

Name Telephone E-Mail Expires: 06/3012003 OMB NO. 3150-0197 the NRC may not conduct or sponsor, and a person is Public Protection Notification: If a means used to impose an information collection does not display a currently valid OMB control number, not required to respond to, the information collection.

Please fold on the dotted lines with Business Reply side out, tape the bottom, and mail back to the NRC.

UNITED STATES NUCLEAR REGULATORY NO POSTAGE COMMISSION NECESSARY WASHINGTON DC 20555-0001 IF MAILED IN THE UNITED STATES OFFICIAL BUSINESS PENALTY FOR PRIVATE USE $300 BUSINESS REPLY MAIL FIRST CLASS MAIL PERMIT NO. 12904 WASHINGTON DC POSTAGE WILL BE PAID BY U.S. NUCLEAR REGULATORY COMMISSION MAIL STOP

West Valley Demonstration Project 0

NRC Public Meeting April 17, 2002 NRC Public Meeting West Valley Demonstration Project Summary of Roles and Responsibilities Alice Williams, Project Director U. S. Department of Energy West Valley Demonstration Project

West Valley Demonstration Project Act (Public Law 96-368)

• Enacted October 1, 1980

• Under the WVDP Act, the Department of Energy shall:

". Solidify the high-level radioactive waste

"* Develop containers suitable for permanent disposal

"*Transport the solidified waste to a Federal Repository

". Dispose of low-level radioactive waste and transuranic waste produced by solidifying the high-level radioactive waste

"* Decontaminate and decommission the tanks, facilities, and any material and hardware used in connection with the Project WVDP Act - Shared Responsibilities Newqas ....

September 1981

"* Cooperative Agreement between DOE Moynihan Praises Start-up at West Valley and NYSERDA

"* Provided working arrangements

"* Supplemental Agreement executed in February 1991

"* NRC license CSF-1 amended so DOE could take control of the site February I982 -OEassumes control 01the reprocessingfacility to conduct the WOPR

"* New York State pays 10% of Project costs; DOE pays 90%

November 1981 I

- DOE and NRC signed a Memorandum of Understanding to outline respective roles and responsibilities 1982

• DOE assumes control of reprocessing facilities; WVNS selected as Prime NuclearServces.

Contractor

Relationship and Interactions with the Nuclear Regulatory Commission

"*Memorandum of Understanding between DOE and NRC (1981)

"*NRC Region I Quarterly Monitoring Visits

"*Cooperating Agency Status (established 1991) on the 1996 Draft Environmental Impact Statement

"*Per the WVDP Act the tanks and facilities used will be decontaminated and decommissioned "in accordance with such requirements as the Commission may prescribe"

° Defined in February 1, 2002 NRC Final Policy Statement

_144l7pot How the WVDP Premises is Regulated

"*Air

"°Radiological Emissions - EPA

"*Toxic Air Emissions - NYSDEC

"*Water

"*Stormwater and nonradiological point source discharges to surface water - NYSDEC

"°Wetlands - Army Corps of Engineers/NYSDEC

" Drinking Water- NYSDOH 14417 -I

How the WVDP Premises is Regulated Waste

". Solid, Hazardous and Mixed

". Radiologicallhazardous waste - treatment, storage and disposal regulated by NYSDEC and EPA

"* RCRA corrective action order

"* Federal Facility Compliance Act consent order for mixed waste treatment LLWshppfng DOE Orders Mandate Operational Reauirements for WVDP. Includina...

'II

• Radiological Waste Management Operations

• Environmental, Safety, Health and Quality Assurance

"*Environmental Monitoring Program ensures WVDP activities do not adversely impacting public health or the environment

"*Annual Site Environmental Report (data collected and evaluated since 1982) i81 17..1

Path to WVDP Completion

• Significant decontamination and waste management activities

• Regulatory involvement essential

• Interaction of agencies and the public key 14417.Mt

NYDA Western New York Nuclear Service Center vvest vaiiey  ! State-Licensed Disposal Demonstration Project Area 041702G7 2-f

History #'31d4 aumn" I Ortfin" I 1962-66 Nuclear Fuel Services Contracted to reprocess fuel; Licensed by the Atomic Energy Commission 1966-72 Fuel Reprocessing Recovered uranium and plutonium from 640 metric tons of spent fuel, 60% U.S. govern ment; 40% commercial reactor 1972 NFS Plans to Expand Regulatory changes make expansion prohibitively expensive 1976 NFS Withdraws from Reprocessing 600,000 gallons HLW in underground tanks 1980 WVDP Act Signed by President Carter 1981 Cooperative Agreement between NYSERDA and DOE NRC License put In Abeyance N'17020; 3 .1 ý f

State-Licensed Disposal Area Waste disposals conducted by NFS from 1963-1975.

NYSERDA assumed management responsibility in 1983.

New York State Department of Labor

> Radioactive Materials License New York State Department of Environmental Conservation

> 6NYCRR Part 380 Permits 2- RCRA Part A Permit A polymer cover and subsurface clay barrier have controlled water infiltration into the SDA trenches.

, RCRA Consent Order t41702.07

U.S. Nuclear Regulatory Commission Roles and Responsibilities at West Valley 0

Larry W. Camper, Chief Decommissioning Branch April 2002 I What Are Our Goals? MI 2w Nuclear Regulatory Commission's (NRC's)

Roles and Responsibilities SCommission's Final Policy Statement SComments/questions on Final Policy Statement 2

1 11 NRC Roles and ResponsibilitiesI Energy Act (AEA) SAtomic S10 CFR Part 50 license SInspection wEnsure public health and safety

? License termination NRC Roles and Responsibilities:]

West Valley Demonstration Project Act (WVDPA)

SDecontamination and decommissioning criteria and SReview consult on Department of Energy (DOE) plans SMonitor activities SPreferred alternative meets decommissioning criteria ?

4

NRC Roles and ResponsibilitiesI

?w National Environmental Policy Act (NEPA)

SCooperating Agency in Decommissioning Environmental Impact Statement (EIS)

SLTR-GEIS/Site-specific analysis I NRC Roles and ResponsibilitiesI Interface with stakeholders SPublic SRegulators wDOE wNYSERDA 6

I ~NRC Performance Goals I Maintain safety SIncrease public confidence Effective, efficient, and realistic decisions SReduce regulatory burden unnecessary IDecommissioning Criteria BackgroundI

-Commission public meeting (1/12/99)

SDraft Policy Statement published for comment (12/3/99) public meeting on draft policy statement SNRC (1/5/2000)

SFinal Policy Statement published (2/1/2002) 8

Implementation to address decommissioning criteria SDOE w EIS preferred alternative w Several complex issues w Avoid speculation F....r?

9 License Termination Rule (LTR) wUnrestricted use 25 millirem/year+ALARA (No restrictions)

PRestricted Release 25 millirem/year+ALARA (IC in place)

• lf IC fails 100 millirem/year 500 millirem/year (rare cases) wAlternate Criteria (IC in place) w25 millirem/year; up to 100 millirem/year 10

1 11

~License Termination Standards for Unrestricted Release (10 CFR 20.14D02)

STotal Effective Dose Equivalent (TEDE)

(25 millirem/year) and is As Low As Reasonably Achievable (ALARA)

Average member of the critical group path waysSAll SPeriod of performance 1,000 years IPerspective on Dose I1 background radiation SAverage z 360 millirem/year w Public dose Subpart D (Part 20) 2w 100 millirem/year w Flight across U.S.

S3-4 millirem w Chest X-Ray w20 millirem 12

~NaturallBackground SRadon 200 millirem/year 2 Cosmic 27 millirem/year 2 Terrestrial 28 millirem/year 2w Internal 39 millirem/year w Consumer products 5 to 13 millirem/year SEnvironment 0.06 millirem/year SMedical:

- Diagnostic X-Rays 39 millirem/year w Nuclear medicine 14 millirem/year Taken from: United States Nuclear Regulatory Commission.

Site Access Training Manual (October 1999) 3 Commission's Final Policy Statement on Decommissioning Criteria for West Valley Demonstration Project

?,i REGU4 0

Chad Glenn Project Manager Decommissioning Branch April 2002

I Policy Statement Topics I License Termination Rule (LTR)

Application of LTR to WVDP Decommissioning Criteria Incidental Waste Previous Authorized Burials Decommissioning of West Valley Environmental Analysis ILicense Termination Rule (LTR)

'The License Termination Rule (LTR) is standard criterion for termination.

SLTR provides range of release criteria:

SUnrestricted Release SRestricted Release 16

The Application of LTR to WVDP STwo step process:

-wNRC prescribes the LTR wIndependently evaluate preferred alternative satisfies criteria after completion of EIS I ~Decommissioning CriteriaI

-w License Termination Rule (LTR) as decommissioning criterion SWestDemonstration Project Valley (WVDP)

SNRC-Licensed site 18

IDecommissioning Criteria (Cont.)

WVDPA specifies NRC's criteria:

z- High Level Waste (HLW) tanks SFacilities used in solidification of waste SMaterial and hardware SSite/Facilities, such as:

- NRC-Licensed Disposal Area (NDA)

- State-Licensed Disposal Area (SDA)

Incidental Waste Early resolution of criteria is important.

SIncidental waste criteria:

w Remove key radionuclides to maximum extent technically and economically practical.

-Safety requirements comparable to the performance objectives of LLW disposal sites (Part 61).

SResulting calculated doses integrated with all other calculated doses to considerSEISimpacts of incidental waste 20

I Previous Authorized Burials I 2 Site-specific impacts and costs sw Consider unique burials (case-by-case) w NDA contains buried radioactive material w EIS to evaluate disposition of previous burials IDecommissioning of West Valley 2w Complex and unique site zw Decommissioned to extent technically and economically feasible protection of public health SRelease requires and safety 22

Environmental AnalysisI LTR does not establish new requirements Site-specific decommissioning decision various alternatives SEvaluate EIS analysis of impacts beyond 1,000 years SNRC reliance on quality EIS

West Valley UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Paul A. Giardina, Chief Radiation & Indoor Air I Chronology of EPA's Recent Involvement at West Valley

" May 1999 Letter to DOE on the development of a supplemental EIS

" January 2000 EPA statement concerning the draft policy statement Discussion with NRC at the

" May 2000 Conference of Radiation Control Program Directors (CRCPD) Annual Meeting

" August 2000 Annual radiation program review with NYSDEC & NYSDOH

w Chronology, cont'd

"* October 2000 Conference call among regulators

" May 2001 GAO report: "Agreement Among Agencies Responsible for West Valley Site Is Critically Needed" DOE annual West Valley regulators

" July 2001 roundtable Letter to NRC regarding 25 mrem &

CERCLA risk range w

Chronology, cont'd

• July - Noi iember Staffs brief their respective 2001 agencies Nov. 2001 - April EPA, NRC, NYSDEC &

2002 NYSDOH develop the Regulators Communication Plan Public meeting to discuss the

• April 17, 2002 Regulators Communication Plan

EPA's Responsibilities E'Atomic Energy Act (w-Clean Air Act 4 Superfund/CERCLA (Comprehensive Environmental Response, Compensation & Liability Act) 4National Environmental Policy Act wResource Conservation & Recovery Act

(*-Safe Drinking Water Act EPA's Role at West Valley 4Cooperating Agency in the development of the Decommissioning EIS

-+Provide early input at West Valley to the public, regulators, DOE & NYSERDA 40Oversight of State delegated EPA programs

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation NRC's WEST VALLEY PUBLIC MEETING 4117/02 NYSDEC WEST VALLEY REGULATORY ROLES AND RESPONSIBILITIES Presented by Paul J. Merges, Ph.D.

3/17/02 West Valley Public Mtg 1 New York State Department of Environmental Conservation NYSDEC West Valley Staff Tim Rice, Radiation Program (518)402-8579 Tim DiGiulio, RCRA Program (315)426-7471 Jack Krajewski, Regional staff (716)851-7220 3/17/02 West Valley Public Mtg 2 New York State Department of

I - I -

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation AM___

DEC ROLE AT WEST VALLEY Protection of the Environment and Public Health of the State.

Ensuring Compliance with Applicable State Regulations.

Working Cooperatively with the Other Regulators to Ensure All Closure Requirements Are Met.

Ensure that the Public is Informed and Involved in the Site Remedial Process.

3/17/02 West Valley Public Mtg 3 New York State Department of Environmental Conservation A

'Rw Broad range of regulatory responsibilities.

"* Resource Conservation and Recovery Act (RCRA)

"* Radiological Protection

"* Clean Water Act (CWA)

"* Clean Air Act (CAA)

• Endangered Species Protection

• Stream Protection

• Wetlands Protection

• Other 3/17/02 West Valley Public Mtg 4 New York State Department of

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation General Scope of Authority State-licensed Disposal Area (SDA) - The State, through regulation by the DEC and DOL, has sole regulatory authority.

Western New York Nuclear Service Center - RCRA, CAA, and CWA authority.

3/17/02 West Valley Public Mtg 5 New York State Department of Environmental Conservation Am__

RADIOLOGICAL Permits for ongoing activities at the SDA

- Monitoring and Maintenance Permit

- Air Discharge Permit NYS Low Level Radioactive Waste Management Act (LLRWMA) 3/17/02 West Valley Public Mtg 6 New York State Department of

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation Am Low-level Radioactive Waste (LLRW)

Transportation LLRW Disposal Facilities:

"* Site and Disposal Method Certification

"* Operation from Design through Closure and Institutional 3/17/02 West Valley Public Mtg 7 New York State Department of Environmental Conservation Am RCRA (Resource Conservation and Recovery Act)

RCRA Part 373 Interim Status Permit

- Current Operations.

RCRA Corrective Action Consent Order with NYSERDA and DOE

- Past Operations.

3/17/02 West Valley Public Mtg 8 New York State Department of

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation A-m,__.,

Imlw FFCA (Federal Facilities Compliance Act)

CWA (Clean Water Act) 3/17/02 West Valley Public Mtg 9 New York State Department of Environmental Conservation Am CAA (Clean Air Act)

Endangered Species Protection Stream Protection Wetlands Protection 3/17/02 West Valley Public Mtg 10 New York State Department of

I II

-- 04/17/02 Public Meeting Handouts New York State Department of Environmental Conservation Am,__

Other Regulatory Responsibilities

"* Closure of Abandoned Oil and Gas Wells

"* Mined Lands Regulations

"* Storage Tank Closure Requirements

"* Solid Waste Disposal Requirements 3/17102 West Valley Public Mtg New York State Department of

NYSDOH West Valley Site I

NYSDOH Objective

• Protection of the Public Health

• Public Health Law

• Promulgation of Regulations NYSDOH Responsibilities I

NYSDOH Regulatory Role

• SDWA Part 5 STheoretical regulatory role if NYSDEC decided not to implement its' regulations

NY50OH Communications Plan items

"*Regulatory Matrix Table I

"*Communications Plan Page 4

"*NYSDOH lead Agency for Protection of Public Health

"*NESDEC Lead for Decommissioning Project

"" Regulation of Water Supply Operators

U.S. Nuclear Regulatory Commission Roles and Responsibilities at West Valley Larry W. Camper, Chief Decommissioning Branch April 2002 I What Are Our Goals? I

- Nuclear Regulatory Commission's (NRC's)

Roles and Responsibilities c Commission's Final Policy Statement SComments/questions on Final Policy Statement NRC Roles and Responsibilities SAtomic Energy Act (AEA)

- 10 CFR Part 50 license

- Inspection SEnsure public health and safety

- License termination I

SNRC Roles and Responsibilities SWest Valley Demonstration Project Act (WVDPA)

- Decontamination and decommissioning criteria

- Review and consult on Department of Energy (DOE) plans

'. Monitor activities

• - Preferred alternative meets decommissioning criteria ?

NRC Roles and Responsibilities SNational Environmental Policy Act (NEPA)

- Cooperating Agency in Decommissioning Environmental Impact Statement (EIS)

- LTR-GEIS/Site-specific analysis I NRC Roles and Responsibilities I with stakeholders SInterface

- Public SRegulators i DOE i NYSERDA

I NRC Performance Goals I SMaintain safety

ý Increase public confidence

- Effective, efficient, and realistic decisions

- Reduce unnecessary regulatory burden Decommissioning Criteria Background S Commission public meeting (1/12/9 9 )

• Draft Policy Statement published for comment (12/3/99)

NRC public meeting on draft policy statement (1/5/2000)

• Final Policy Statement published (2/1/2002)

Implementation DOE to address decommissioning criteria EIS preferred alternative SSeveral complex issues SAvoid speculation r=---*,

2,

I License Termination Rule (LTR) I

-Unrestricted use 25 millirem/year+ALARA (No restrictions)

-Restricted Release 25 millirem/year+ALARA (IC in place)

-lf f IC fails 100 millirem/year 500 millirem/year (rare cases)

-Alternate Criteria (IC in place)

.-25 millirem/year; up to I DOmillirern/year I License Termination Standards for Unrestricted Release (10 CFR 20.1402)

Total Effective Dose Equivalent (TEDE)

(25 millirem/year) and is As Low As Reasonably Achievable (ALARA)

Average member of the critical group All path ways Period of performance 1,000 years Perspective on Dose I w Average background radiation

-360 milliremlyear

. Public dose Subpart D (Part 20)

S100 millirem/year SFlight across U.S.

w3-4 millirem

- Chest X-Ray

-20 millirem 4

Natural Background SRadon 200 millirem/year w Cosmic 27 millirem/year STerrestrial 28 millirem/year m Internal 39 millirem/year SConsumer products 5 to 13 millirem/year SEnvironment 0.06 millirem/year w Medical:

SDiagnostic X-Rays 39 millirem/year

- Nuclear medicine 14milliremnlyear ns T 1- 1i~

-A n Rghti 5

Commission's Final Policy Statement on Decommissioning Criteria for West Valley Demonstration Project Chad Glenn Project Manager Decommissioning Branch April 2002 I Policy Statement Topics I Termination Rule (LTR) of LTR to WVDP

- Decommissioning Criteria

- Incidental Waste

- Previous Authorized Burials of West Valley A

w Environmental Analysis License Termination Rule (LTR)

The License Termination Rule (LTR) is standard criterion for termination.

LTR provides range of release criteria:

• - Unrestricted Release

- Restricted Release I

The Application of LTR to WVDP w Two step process:

-NRC prescribes the LTR wlndependently evaluate preferred alternative satisfies criteria after completion of EIS SDecommissioning Criteria w License Termination Rule (LTR) as decommissioning criterion SWest Valley Demonstration Project (WVDP)

SN RC-Licensed site Decommissioning Criteria (Cont.)

WVDPA specifies NRC's criteria:

SHigh Level Waste (HLW) tanks

- Facilities used in solidification ofwaste and hardware such as:

Disposal Area (NDA)

- State-Licensed Disposal Area (SDA) 2

Incidental Waste

ý Early resolution of criteria is important.

- Incidental waste criteria:

Remove key radionuclides to maximum extent technically and economically practical.

'Sarety requirements comparable to the performance objectives or LLW disposal sites (Part 61).

SResulting calculated doses integrated with all other calculated doses

- EIS to consider impacts of incidental waste Previous Authorized Burials Site-specific impacts and costs SConsider unique burials (case-by-case)

NDA contains buried radioactive material SEIS to evaluate disposition of previous burials Decommissioning of West Valley SComplex and unique site

', Decommissioned to extent technically and economically feasible r, Release requires protection of public health and safety 3

Environmental Analysis

• LTR does not establish new requirements

ý Site-specific decommissioning decision SEvaluate various alternatives SEIS analysis of impacts beyond 1,000 years w NRC reliance on quality EIS 4

NYSERDA lNoew York State Energy Research and Development Autharity Vincent A. Delorlo, Esq., Chairman William M. Flynn, President Paul L. Piciulo, Ph.D., Director West Valley Site Management Program, 10282 Rock Springs Road, West Valley, NY 14171-9799 (716) 942-4387 ° Fax: (716) 942-2148 ° www.nyserda.org Comments of the New York State Energy Research and Development Authority on the Nuclear Regulatory Commission's Final Policy Statement 4/17/02 Application of the License Termination Rule (LTR) to the West Valley Demonstration Project (WVDP) and the Entire NRC-licensed Site The final policy statement prescribes the LTR as the decommissioning criteria for the WVDP and states:

"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."

Based on this statement, it is unclear whether the NRC intends to separately evaluate the dose contribution from the WVDP. If, to complete the two-step process, NRC does intend to separately evaluate the dose from the WVDP it is unclear what fraction of the dose limits will be granted to the WVDP versus the non-WVDP portion of the NRC-licensed site. This issue needs to be clarified.

In addition, if NRC does intend to separately evaluate the dose from the WVDP, then NYSERDA is concerned about how NRC will define which facilities, property and contamination are part of the WVDP for the purposes of this evaluation. NYSERDA has previously stated its position that DOE is required under the WVDP Act to decontaminate and decommission all premises and facilities within the 200-acre fence line other than the State licensed Disposal Area and the waste disposed of in the NRC-licensed Disposal Area prior to commencement of the Project. (See attached letter from Hal Brodie to Commissioner Jeffrey S.

Merrifield, March 1, 1999.)

Waste Incidental to Reprocessing (WIR) Determination NYSERDA is concerned about the approach to waste incidental to reprocessing determinations that was announced by NRC in the Final Policy Statement. First, NRC's involvement and role in the process for declaring waste incidental to reprocessing at West Valley should be further clarified. NYSERDA has stated on numerous occasions that WIR determinations at West Valley are NRC decisions, not DOE decisions. Unlike other DOE facilities where the WIR criteria have been applied, West Valley is not a DOE-owned facility. DOE has repeatedly stated its intent to close facilities (including the high-level waste tanks) in place at West Valley and then return the

site to New York State control and NRC regulation. DOE is preparing, or will be preparing determinations for in-situ closure of various West Valley facilities WIR (i.e., high-level waste tanks, process building, vitrification facility, etc.). Other than the requirement to include the impacts of the residual source term in the environmental impact statement performance assessment, NRC has not established how they intend to approve or otherwise be involved in these determinations.

It is essential that NRC establish and make public a procedure for NRC decision-making on this issue.

In addition, in the Final Policy Statement, NRC eliminated any concentration criteria from the WIR determinations at West Valley. This is inconsistent with and less stringent than the criteria that have been set for other DOE facilities. For instance, in its decision on the WIR determination for Hanford (Denial of Petition for Rulemaking:

States of Washington and Oregon, 58 FR 12342), NRC specifically required that the waste "not exceed the applicable concentration limits for Class C low-level waste as set out in 10 CFR Part 61." NRC has failed to set forth any reason for eliminating this concentration criterion at West Valley.

Flexibility and NRC Oversight The Policy Statement emphasized the flexibility that is present in the LTR without giving site specific guidance on the technical, regulatory, and public processes through which the policy statement and its inherent flexibility will be implemented or how NRC will oversee the decommissioning effort. NYSERDA believes that to retain public confidence, NRC must serve its statutory role to review and consult under the Act in a thorough and transparent manner.

NYSERDA strongly encourages NRC to establish a process for NRC to review key documents, such as characterization studies, engineering studies, and performance assessment modeling, with the same rigor that NRC reviews license applications under the Atomic Energy Act. We are pleased that USNRC, USEPA, NYSDEC and NYSDOH have acknowledged in this morning's public meeting the need for further definition of the process and we look forward to working with you on that task.

NYSERDA New York State Energu Research and Development Authority William R. Howell. Chairman F. William Valentino, President Corporate Plaza West, 286 Washington Avenue Extension. Albany, NY 12203-6399 (518) 862-1090 - Fax: (518) 862-1091

• http://Www. nyserda .org/

March 1, 1999 The Honorable Jeffirey S. Merrifield Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Commissioner Merrifield:

During the Commission meeting of January 12, you expressed some concerns about the scope of the West Valley Demonstration Project (WVDP) and how it might affect the Commission's role at the West Valley site. Paul Piciulo and I briefly outlined the position of the New York State Energy Research and Development Authority (NYSERDA) on this issue, but the meeting did not seem the appropriate time to engage in extended discussion of this important question. Therefore, I am writing to elaborate on our discussion at the meeting.

While the issue of the extent of the Department of Energy's obligations under the WVDP Act is of the utmost importance to New York State, and while NYSERDA believes that the Commission should be aware of and informed about this matter, we do not believe the issue is, or should be, before the Commission for decision. The staff paper on Decommissioning Criteria for West Valley (SECY-98-25 1) appropriately proposes criteria for the site as a whole. NYSERDA has consistently taken the position that it would be technically infeasible and legally indefensible for the Commission to attempt to establish one set of criteria for the Department of Energy.under the WVDP Act and another set of criteria that would apply to NYSERDA under the Part 50 license. We strongly urge the Commission to recognize that "decommissioning" must be given the same meaning, whether applied to a federal agency or to a licensee, and to adopt this aspect of the staff paper.

As with any statute, to interpret the meaning of the West Valley Demonstration Project Act one must look first to the language of the Act itselt While you correctly pointed out that it was the need to solidify the liquid high-level waste that provided the main impetus for the Act, the expressed obligations of the Department of Energy under the Act go well beyond solidification and transportation of the high level waste to a federal repository. The Secretary of Energy is also directed to dispose of the low-level and transuranic waste produced by solidification [Section 2(a)(4)] and to. decontaminate and decommission the tanks and other facilities used to store the high-level waste, the materials and hardware used in connection with the project, and the facilities used in solidification of the waste [Section 2(a)(5)].

The decontamination and decommissioning aspect of the Department's mission at West Valley is

2 and always has been a critical issue for the State of New York. It was always anticipated that the Department would use and clean up as much of the site as is reasonably consistent with the solidification mission. This is demonstrated by the legislative history. In colloquy, Congressman Lundine stated:

The facilities and hardware already at the center, which will be contributed as part of the New York State share of this project and utilized by the Federal Government, will make this a cost-effective undertaking that otherwise would require a large infusion of taxpayer dollars to provide similar facilities and hardware at any other site elsewhere around the country.

Congressional Record, September 15, 1980, H. 8766.

Support for the proposition that Congress intended that the Department conduct extensive decontamination and decommissioning can also be found in the statement of Congressman Kemp, who said in colloquy:

The bill now before us establishes a Federal demonstration project to solidify the high level wastes at the West Valley Center and move the wastes to a Federal repository for long-term burial. The site is then to be decommissionedanddecontaminatead and a plan for the safe removal of the wastes must be prepared Congressional Record, September 15, 1980, H. 8767 (emphasis added).

But perhaps the most persuasive interpretation of the Department's decontamination and decommissioning obligations under the Act is the Department's own contemporaneous interpretation as reflected in the Cooperative Agreement negotiated between the Department and NYSERDA. Among many references in the Agreement to the Department's obligation to decontaminate and decommission is Section 4.03, which states:

Condition on Surrender. On the Project Completion Date, the Department shall surrender to the Authority (a) the Process Plant and (b) such other Project Premises, Project Facilities and any other non-federally owned facilities, material, and hardware which it uses in carrying out the Project decontaminated and decommissioned in accordance with the Act and such requirements as the Commission may prescribe.

3 This section should be read with section 4.02 of the Agreement which states:

The Department shall use the Process Plant in carrying out the Project. Project Premises and Project Facilities shall be used solely for the purpose of carrying out the Project and for no other purpose whatsoever, except as expressly provided in this Agreement.

As I indicated at the Commission meeting, the Department insisted upon, and received the right to exclusive use and possession of the entire 175-acre Project Premises to use in carrying out the Project. Since obtaining use and possession of the Premises, the Department has in fact used the entire Premises in connection with solidification for such purposes as treatment, storage, transportation, security, and buffer.

These various sources support, and are entirely consistent with, the position that NYSERDA stated at the meeting, which is that the Department is responsible, under the West Valley Demonstration Project Act, for decontaminating and decommissioning all premises and facilities within the 200- acre fence line other than the State-licensed Disposal Area and the waste disposed of in the Nuclear Regulatory Commission-licensed disposal area prior to commencement of the Project.I If you have any additional questions, or would like any further documentation on this issue, please do not hesitate to contact me at 518-862-1090, extension 3280.

Sincerely, jJm Hal Brodie Deputy Counsel cc: Hon. Shirley Ann Jackson Hon. Nils J. Diaz Hon. Greta J. Dicus Hon. Edward McGaffigan, Jr.

John T. Greeves Barbara A. Mazurowski, DOE Carl Johnson, DEC Duane J. Ray, Seneca Nation West Valley Citizen Task Force

' The federal government has responsibilities above and beyond those delineated in the West Valley Demonstration Project Act. Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the federal government, as generator of the majority of the waste contained in the two disposal areas, is responsible for a substantial portion of the cleanup of those areas.

West ValleyY pril 17,2002 Richard A-. \leser\ e. Chairmian CDitizen U.S. NuIclear1 RC'_ulatory Comminisslonl Washington, l).C. 2055 T.IIPask RE: Disagreements With [he tFinal Policy Statement Establishing Deconmmissioninu Criteria Project Force for tile West Valley Demonstration

Dear Chairman Meservc:

m In verbal testimony given at the public briefing o January 12, 1999, and in wvritten comments dated December 22, 1998. and January 5, 2000, the West Valley Citizen Task Force (CTF) expressed general agreement with the U.S. Nuclear Regulatory Commission's (NRC) application of the License Termination Rule (LTR) as the decommissioning criteria for the West Valley Demonstration Project (WVDP). However, the CTF specifically detailed numerous objections we had with earlier wording and provisions in the draft policy statements which would have: I ) delayed NRC's prescription of definitive decommissioning criteria until after the current West Valley Environmental Impact Statement (EIS) process was completed: 2) allowed residual high level waste (HLW) at the site to be classifVied as incidental waste: and 3) allowed the U.S. Department of Energy (DOE) to depart from the LTR standards if they simply developed a rationale indicating that a particular cleanup alternative was considered technically infeasible or prohibitively costly. We clearly urged the NRC to reject any such approach and we were guardedly optimistic that the final policy statement would incorporate our recommendations and fulfill the NRC\s obligation to pre scribe a definitive set of criteria for decommissioning at the West Valley site, per the WVDP Act.

Consequently, we are extremely disappointed that the final policy statement as published in the Federal Register on February 1, 2002, contains provisions which: I ) create a

",'twNo-step process" whereby NRC will allow DOE to select a preferred alternative following completion ofthe EIS, and lit ..- veriy that tie approach proposed by DOF is appropri ate:" 21 establish nea criteria for making incidental waste determinations which effectively allow DOE to re-classify much residual HLW and ultimately dispose of it on site: and 3) will allow exemptions from the LTR criteria (i.e., higher human exposture dose limits) should the DOE choose to select a particular clean-up alternative, due to cost considerations. It should be noted that this would be first time that federal HLW would be left on non-federal land.

In short, the CTF now believes that the Commission has failed to fulfill its mandate from Congress oFprescribing decommissioning criteria for the WVDP. A "'criterion" is defined as "....a standard, rule, or test by which something can be judged." The Policy Statement, as issued, pro%ides for outright exemptions from the LTR and re-evaluation following completion of the EIS. It is even stated therein that "'... for those portions of'the site that are unable to demonstrate compliance with the LTR's restricted release require ments, the dose limits should be viewed as goals...". Goals are not criteria! The policy only purports to establisn criteria. The unusual number of qual .ring prov isions serve to diminish the NRC's rele\ ance in the EIS process and reduce the proposed LTR criteria to mere goals which may, or need not, be adhered to by DOE. In our public briefing comments dated December 22, i998, x\te staICd our resolute opposition to the NRC extending DOE this form of'd{ h'co auti..orll, in stslabl ishing tile c Leanup, standards f"Or the roject.

We question whether tie WVDP Act authorizes the NRC to establish incidental waste determi nation criteria for the Project. We are increasingly concerned about revised DOE plans to accelerate decomnlissroning activities \w hen the respective long-term responsibil ities ofthe federai and state goemrn Mnents n the clean up and monitorinu of'thc " est Valley site have not yet been established. The CTF, therefore, necessarily opposes any actions which ser\ve to 11acilitate premature withdrawal of DOE 'romni the Project beiore all WVDP Act and National Environmental Policy Act (NEPA) obligations are fuI filled. Consequently, we request clar fication ofthe Commission's authority for providing incidental waste determination criteria for West \Valley. and docurnentation ofany procedural or public participatorv requirements which nornially iiiighit apply to such an action.

In addition, we request *brmal definitions ofiengineered barriers" and "institutional controls" (Ils) as they relate to the LTR and EIS analyses. As the NRC has previously acknowledged, the West Valley site presents unusual challenges should long-terrn ICs need to be relied utponi as part of the pre ferred alternative fbr the site. The Commission indicates in the Policy Statement that it need not conduct an independent environmental review even though the generic EI S supporting the LTR requires that NRC

" conduct"...an independent environmental review for each site-specific decommissioning decisioni where land use restrictions or ICs are relied upon by the licensee...". Whether the NRC conducts an indepen dent review or not, we believe it is crucial tha tfornial guidance regarding ICs be issuied because of': I the LTR dose criteria, should ICs fail, anid 2) the presumptive failure of ICs in long-range EIS analyses (i.e. a fewx hundred years and beyond). Some views on this subject were presented in responses A.6 and B.6 in Section IV (Sumnmary of Public Comments and Responses to Comments) of the Policy Statement.

but definitive guidance is clearly necessary to ensure the proper evaluation of alternatives and comnpletion of the EIS.

The CTF appreciates the effort put forth by the Commission and NRC staff over the past several years iin deeloping this policy for West Valley. Unf'ortunately we cannot agree with the inordinate level ot"'flexibility" which has been built into the policy. The result is a docurnent which neither ensures an adequate level of protection to local residents and the region, nor provides any definitive limitations on the range of'clean-up alternatives which can still be considered by DOE. As the Policy Statement now reads, NRC will render no actual decision regarding anv alternative Until after the EIS has been completed.

Again, we feel that this compromises NRC's integrity and express authority in providing impartial regula toWI'oversight of DOE activities, and Ibils to satisfy the Commission's legislated obligation Cori'prescrib ing'" W\/iDl deconmmissionring criteria. Consequently the Final Policy Statement may be subject to a legal challenge, and certainly should be subject to Congressional scrutiny and possible re'ection.

We expect the Commission to reconsider their position on this matter to include the consensus view s of (lie comnmunity and local governmental interests, as represented by the CTF memnbership.

Respectflily submitted.

Eric VWohlers on behalf'of the West Valley Citizen Task Force

cc: NRE Comm i.,cr .ucla l)ic-hs NRC Commissioncr Nii Dikai NRC Commissioner Ed\.ard Mc( laffigan N RE Commissioner JetCrc\ Mlerri i'eld U.S. Senator H illar\ Rodhliam C Iinton U.S. Senator Charl" S SChumer U.S. Representative .Amory HOneuhton U.S. Representati \ve homa,, Rcynolids U.S. Representalxe Jack {,)uinn U.S. Representatike John LaFalce U.S. Representatikc Louise Slaughter N YS Senator P~alricia MIcGee N.'YS Assernblvnman Dan BIurting NY S Assemblyvwoman Catharine Young DOE Secretary Spencer Abraham NYS Governor George Pataki NYSERI),\ President William l-vnn Alice Williams (DOE)

Paul Piciulo (NYSERDA)

Larry Camper (NRC)

Paul Giardina (U.S. Environmental Protection Agency)

Paul Merges (NYS Department o- Environmental Conservation)

Gary Baker (NYS Department of Health)

COALITION ON WEST VALLEY NUCLEAR WASTES Sharp Street

• East Concord, NY 14055 * (716) 941-3168 April 14, 2002 Richard Meserve. Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Chairman Meserve:

We were encouraged to hear in late January that NRC was issuing the Final Policy Statement for West Valley decommissioning requirements. However, we find the contents of those requirements' to be very unsatisfactory. They are weak and unprotective compared to what NRC had already adopted in draft form as its West Valley requirements, as seen in the version of SECY-99-057 that the Commissioners adopted unanimously in 1999, the resulting Draft Policy Statement that was published in the FederalRegister,2 and subsequent NRC 3

staff presentations to the Advisory Committee on Nuclear Waste. These discrepancies aside, we find that the Final Policy Statement contains some rather serious defects as outlined below. Please see especially the legal issues raised in the second and third sections of this letter. We think all of these concerns are sufficiently serious to warrant your attention and the attention of the other Commissioners.

Excessive flexibility and lack of definiteness 4

We are concerned that the "flexible approach" of the Final Policy Statement is too vague to set limits on DOE's decommissioning alternatives. We believe the meaning of the West Valley Demonstration Project Act is clear: DOE's mandate to decontaminate and decommission shall be bounded by requirements set by NRC, and those requirements shall be sufficiently definite that any given alternative may be judged "in accordance" or "not in accordance."

NRC's emphasis on flexibility, including potential exemptions and NRC's willingness to consider alternatives that do not fully comply with the License Termination Rule (LTR) criteria, 5 is likely to confuse any determination of whether a given alternative is "in accordance" or "not in accordance."

' Federal Register, 67 FR 5003-5012 (February 1, 2002).

2 64 FR 67952-54 (December 3, 1999).

3 Jack D. Parrott, "NRC's Draft Policy Statement on Decommissioning Criteria for the West Valley Demonstration Project and West Valley Site," presentation to ACNW, June 13, 2000; Amy M. Snyder, "Final Draft West Valley policy Statement: Significant Issues and NRC Staff Response," presentation to ACNW, October 17, 2000.

"467 FR 5004 (February 1, 2002).

Ibid., entire RH column on p. 5004; also part of LH column on p. 5011.

1

NRC's reluctance to set the LTR as clearcut requirements for West Valley is puzzling and worrisome. NRC waffles on whether departures from the LTR would be contingent on portions of the site being "unable to demonstrate compliance" or merely on compliance being "technically impracticalor prohibitively expensive."6 NRC's reason for excusing strict compliance with the LTR ("decommissioning of the West Valley site will present unique challenges"' 7) is not reassuring, inasmuch as it suggests that citizens living near such sites deserve less protection than other Americans. The LTR, after all, is not site-specific; it sets minimum safe standards that decommissioned sites elsewhere are expected to meet. Since the LTR is expressed in terms of maximum allowable radiationdoses, it makes little sense to allow higher doses at sites that "present unique challenges." Indeed, given the greater difficulty of making reliable long-term predictions at such sites, and given the fact that radiation doses at decommissioned sites are typically projected into the future, one might expect the allowable dose limits at those sites to be lower, not higher, than the LTR dose limits.

Perhaps some comfort can be taken from footnote 10 on page 5011 of the FederalRegister notice, where NRC indicates that "the language of the LTR governs this matter." The LTR may thus override some of the more extravagant language about flexibility, exemptions, unique solutions, and innovative approaches that appears in the FederalRegister notice.

It should be noted that the NRC, in adopting the LTR in 1997, specifically expressed a preference for dealing with difficult sites "under the aegis of a rule rather than as exemptions." 8 Thus, NRC already provides flexibility for difficult sites within the LTR through alternate criteria (10 CFR 20.1404) and a two-tier dose "cap" (10 CFR 20.1403(e)).

These flexible features of the LTR allow radiation doses somewhat higher than the limit normally imposed by the LTR, but they still fall under the umbrella of the LTR. NRC now suggests that even higher doses (beyond the LTR) might be allowed at West Valley through flexibility, exemptions, unique solutions, and innovative approaches. We do not believe that West Valley dose limits beyond the LTR would be warranted or wise.

In adopting the LTR in 1997, NRC specifically stated that the LTR was "intended to provide a clear and consistent regulatory basis for determininý the extent to which lands and structures can be considered to be decommissioned." NRC's decommissioning requirements for West Valley' 0 fail badly in this respect. While the West Valley requirements "apply the LTR," they also emphasize that the strict requirements of the LTR can be avoided through flexibility, exemptions, unique solutions, and innovative approaches.

The end result (in our opinion) is the absence of a clear and consistent basis for determining the extent to which lands and structures can be considered to be decommissioned at West Valley.

6 67 FR 5011 (February 1, 2002), emphasis added.

7 Ibid.

8 62 FR 39066 (July 21, 1997).

9 62 FR 39057 (July 21, 1997).

10 67 FR 5003 (February 1, 2002).

2

NRC may believe that its offers of flexibility, exemptions, unique solutions, and innovative approaches are well-constrained by the requirement that "public health and safety are protected""' or the requirement that "it can be rigorously demonstrated that protection of the public health and safety for future generations could be reasonably assured...,,12 We disagree. It makes no sense to relax strict limits on radiation dose based on assurances that public health, safety, and the environment can be protected. (What would be the purpose of limits on radiation dose, if not to protect health, safety, and the environment?) We recognize that NRC may argue otherwise, but this simply illustrates our point that NRC's decommissioning requirements for West Valley fail to provide a clear and consistent basis for determining the extent to which lands and structures can be considered to be decommissioned. NRC's decommissioning requirements for West Valley will continually require interpretation from NRC as to whether any given flexible approach is "in accordance" or "not in accordance." This is not a clearcut standard for decommissioning.

Incidental Waste As part of its West Valley decommissioning requirements, NRC has "decided to issue incidental waste criteria to clarify the status of and classify any residual wastes present after 13 cleaning of the high-level radioactive waste (HLW) tanks at West Valley." We are concerned that this plan by NRC is illegal.

NRC's statement about what it has "decided" is admittedly vague and may be intended 5

merely as "the Commission's view for incidental waste"1 4 or as "advice to DOE,"'1 in which case NRC may simply be encouraging DOE to classify HLW as "incidental" in violation of the law. In either case, we would like to clear up and eliminate any NRC role in this possible illegal action.

NRC mentions both Section 6(4) of the West Valley Demonstration Project Act and a series 6

of NRC rulemakings in relation to its decision on incidental waste, 1 as if one of these might provide legal authority for reclassifying West Valley HLW as incidental waste. NRC's purpose here is unclear, as NRC simply mentions the Act and rulemakings in passing, without actually claiming that they provide the necessary legal authority. In fact, neither the Act nor the NRC rulemakings provides legal authority for reclassifying any of the West Valley waste as "incidental."

Any reclassification of West Valley waste as "incidental" is contrary to the West Valley Demonstration Project Act. Such reclassification would be illegal, regardless of whether "1' Ibid.

12 Ibid.

"13 67 FR 5005 (February 1, 2002).

14 67 FR 5009 (February 1, 2002).

'5 See 67 FR 5005 and 5009 (February 1, 2002), where NRC refers to "advice" provided to DOE regarding "incidental" waste at Hanford and/or Savannah River. See also Amy M. Snyder, presentation to ACNW, October 17,2000, Frame 7.

16 67 FR 5009 (February 1, 2002).

3

I NRC intends to make the reclassification itself or merely encourages DOE to do so. Neither NRC nor DOE has the authority to override the West Valley Demonstration Project Act.

Section 6(4) of the West Valley Demonstration Project Act defines "high level radioactive waste" (HLW) and allows NRC to include "such other material as the Commission designates" in the HLW category. In other words, Congress created a definition of HLW in

§6(4) and gave NRC the authority to add various types of radioactive material to the Congressional definition of HLW. There is no rational interpretationr of §6(4) that would allow NRC to remove any HLW material from the Congressional -finition of HLW. Any West Valley HLW must therefore remain HLW unless the West -dlley Demonstration Project Act is changed.

The above argument is sufficient to show that West Valley HLW cannot be reclassified as "incidental" waste by either NRC or DOE. However, the following argument can also be made:

Even if it were possible to remove residual West Valley tank waste from the HLW category, the closed system of definitions in Section 6 of the West Valley Demonstration Project Act would require any such waste to be reclassified as a) low-level radioactive waste, b) transuranic waste, or c) byproduct material. The Act's closed system of waste definitions does not allow the creation of additional new waste categories such as "incidental." In the event that some of the HLW were reclassified as either low level radioactive waste or transuranic waste, the Act would require its disposal "in accordance with applicable licensing requirements."'17 We understand the applicable licensing requirements for low-level radioactive waste to be either 10 CFR Part 61 or 6 NYCRR Part 382.

NEPA problems When agencies make discretionary decisions, the National Environmental Policy Act (NEPA) requires the environmental effects of those decisions to be considered beforehand in a NEPA (EIS) process. The EIS must focus on issues, impacts, and alternatives that are directly relevant to the agency decision.

NRC mistakenly claims that "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." 18 This is faulty logic. The West Valley Demonstration Project Act gave NRC full discretion to set West Valley decommissioning requirements. In choosing one set of requirements from the universe of possibilities, NRC made a decision that invokes NEPA. The decision is both new and novel; it requires an EIS.

NRC's decision is not trivial. It consists of the adoption of decommissioning standards, including maximum allowable radiationdose limits that must be met after the West Valley site is decommissioned. As part of this decision, NRC has chosen dose limits that 1) are based on the LTR but 2) may, under certain circumstances, exceed the dose limits allowed by 17 West Valley Demonstration Project Act, section 2(a)(4).

'8 67 FR 5012 (February 1,2002).

4

the LTR. NRC's NEPA process must therefore focus on this decision to allow a range of acceptable radiation doses at West Valley. It must focus especially on how and why NRC would allow radiation doses that exceed the LTR limits.

NRC needs to meet these NEPA requirements but has never done so. NRC seems to think it can satisfy NEPA by being generall% involved in, and by doing a detailed internal review of, the DOE-NYSERDA EIS process." Such a review role is useful but not sufficient; it does not satisfy NRC's obligation to do a NEPA review (an EIS process) to support NRC's own decisionmaking.

NRC's confusion about its NEPA obligation is echoed in the recently issued "Regulator's Communication Plan." This NRC document refers to the DOE-NYSERDA EIS process and states that "NRC may adopt this EIS for determining that the preferred alternative [as chosen by DOE and NYSERDA] meets NRC's decommissioning criteria, assuming that NRC will find it acceptable" 20 and that "If there are decommissioning issues that cannot be addressed through this EIS, these issues should be identified early in the NEPA process.' We do not mean to be disrespectful but must emphasize that NRC is not paying attention. As we have indicated repeatedly, there are issues that cannot be addressed through this EIS, at least not without substantial effort and cognition by NRC. We refer particularly to NRC's adoption of West Valley decommissioning requirements. In addition, NRC's comment that such issues "should be identified early in the NEPA process" is disingenuous, given the fact that the NEPA process has already been running for about 14 years!

We do not mean to suggest that NRC's adoption of West Valley decommissioning requirements is totally unrelated to the DOE-NYSERDA selection of an alternative that meets these requirements. NEPA recognizes that two or more agencies may need to make decisions that are closely linked or interrelated, as is the case here. This type of decisionmaking relationship is called "functional interdependence" and is covered by a section of the NEPA regulations, 40 CFR 1501.5. However, NRC does not meet the requirements of 40 CFR 1501.5, especially §§1501(a) and (c).

NEPA has specific substantive requirements. These include requirements for scoping (i.e.,

the identification of relevant issues for an EIS process), identification of impacts, review of alternatives, etc. NRC has not met these requirements with respect to its West Valley decisionmaking (i.e., its adoption of West Valley decommissioning requirements). NRC joined the DOE-NYSERDA West Valley EIS in 1991 as a "cooperating agency" but has never carried out a scoping process or identified impacts or developed alternatives that are pertinent to its own West Valley decisionmaking. Doing these things "early in the process" would have been a good idea in 1991, but it was never done.

19For example, see 67 FR 5004, 5007, and 5012 (February 1, 2002).

20 U.S. Nuclear Regulatory Commission, "Regulators Communication Plan on Application of Cleanup Requirements for Decommissioning the West Valley Site," March 27, 2002, p. 3.

21 Ibid., p. 5.

5

NRC now "expects to participate as an EIS cooperating agency" in the second of two "descoped" EISs that DOE intends to create. 22 NRC's participation in this EIS may be problematic since 1) the EIS does not yet exist and 2) the Coalition on West Valley Nuclear Wastes considers DOE's "descoping" plan illegal.

DOE agreed, as part of the Stipulation of Compromise Settlement signed with the Coalition in 1987, that "the closure Environmental Impact Statement process - including the scoping process - shall begin no later than 1988 and that this process shall continue without undue delay and in an orderly fashion consistent with applicable law, the objectives of the West Valley Demonstration Project, available resources and mindful of the procedural processes (including public input) needed to complete the aforesaid Environmental Impact Statement."2 3 NRC did not sign the Stipulation but is aware of it (copies were sent to NRC immediately after it was signed). NRC made no objection to the Stipulation when NRC joined the West Valley closure EIS process as a "cooperating agency" in 1991. The Coalition therefore believes that NRC must abide by the terms of the Stipulation, including the section quoted above. For example, NRC has no right to participate in the West Valley EIS in a manner that is inconsistent with applicable law or contrary to the procedural processes needed to complete the EIS.

As already noted. NRC has failed to meet many of the standard procedural requirements of NEPA (scoping, identification of impacts, evaluation of alternatives, etc.). These requirements arise from NRC's discretionary decisionmaking at West Valley (i.e., NRC's prescription of decommissioning requirements), as already described. NRC's noncompliance with NEPA is unacceptable under NEPA's own rules and is also unacceptable in the context of the West Valley EIS process (and the Stipulation that governs it), yet NRC somehow continues to believe that its NEPA obligations can be satisfied by NRC's review role within the DOE-NYSERDA West Valley EIS process.24 NRC is mistaken in this belief The Coalition will not allow NRC to abuse the West Valley EIS process in this manner.

There are two relatively easy ways for NRC to avoid some or all of the above NEPA problems. One would be for NRC to adopt the LTR verbatim (without loopholes) as the decommissioning requirements for West Valley. The extensive NEPA process that NRC performed several years ago for the LTR would be sufficient, or essentially sufficient, to apply the LTR to West Valley. The other way for NRC to avoid some of the above NEPA problems would be for NRC to perform its own West Valley EIS. Such an EIS would need to focus on the proposed LTR loopholes (i.e., on West Valley decommissioning requirements that differ from the LTR, especially any radiation dose limits that would exceed the LTR limits). The NEPA requirements for a separate EIS would still be the same (scoping, evaluation of impacts, development of alternatives, etc.), but the advantage of a separate EIS would be that NRC could escape the procedural dilemma that it has created for itself within the DOE-NYSERDA EIS.

22 67 FR 5005 (February 1, 2002), footnote 8; also p. 5004.

23 Stipulation of Compromise Settlement, May 27, 1987, §4.

24 For example, see 67 FR 5012 (February 1, 2002).

6

The Coalition is willing to work cooperatively with NRC to resolve this procedural dilemma, i.e., to allow NRC to fulfill its NEPA obligations within the DOE-NYSERDA EIS process at West Valley. However, any resolution of this dilemma will also require cooperation and good-faith effort by NRC. The dilemma cannot be resolved if NRC continues to forge ahead without regard for NEPA and the Stipulation.

The dilemma is as follows: NRC has never initiated or completed a NEPA process to justify West Valley decommissioning requirements that go beyond (i.e., are less strict than) the LTR. NRC has never performed scoping or done any of the other required steps. The Coalition has urged NRC to do so, but NRC has not done so. If NRC were to change its mind and decide to abide by NEPA, it could perform scoping this year (2002) and continue with the other required NEPA steps. This would be acceptable if NRC were to perform its own EIS but is highly questionable if done within the DOE-NYSERDA EIS that is governed by the Stipulation. The Stipulation, as quoted above, requires that the "Environmental Impact Statement process - including the scoping process - shall begin no later than 1988..."

Doing new scoping fourteen years later - in 2002 - does not meet the requirements of the Stipulation. A delay of a few years for a truly new, unforeseen issue might be justified, but that is not the case here. NRC's NEPA obligations are not new or unforeseen; the obligations arise directly from NEPA, and the Coalition has urged NRC for several years to fulfill these obligations. Thus, NRC cannot simply demand new scoping in 2002 (nor can DOE do so). The Coalition would reject such a demand as an unreasonable violation of §4 of the Stipulation ("begin no later than 1988", "continue without undue delay", "in an orderly fashion consistent with applicable law", "mindful of the procedural processes", etc.).

At the same time, the Coalition remains open to proposals (but not demands) from either NRC or DOE. The Coalition may be willing to consider new scoping, for example, if such modifications to the original Stipulation can be mutually agreed upon and carried out with adequate safeguards. Any such proposals, whether from NRC or DOE, will require negotiation among the affected parties (including at least DOE and the Coalition). No party has the right to modify or disobey the Stipulation unilaterally.

If NRC were to ask the Coalition for permission to perform new scoping within the DOE NYSERDA EIS process, the Coalition would be open to such a request but would expect to negotiate its terms. The Coalition's primary interest in such negotiations would be to ensure that new scoping 1) has an adequate and proper scope for assessment of impacts associated with NRC's decisionmaking and 2) does not involve shortcuts that bypass or bias the NEPA process. In addition, where the NRC Policy Statement is contradictory or not in accordance with law, the Coalition would seek a clear, binding commitment from NRC that the more protective interpretation will apply and that no portion of the decommissioning requirements will be inconsistent with applicable law. The Coalition already recognizes several issues that would need to be negotiated for the above purposes. The following issues (and perhaps others) would need to be considered:

1. Failure of institutional controls in relation to NRC's decision that "health and safety and cost-benefit considerations may justify the evaluation of alternatives that do not 7

fully comply with the LTR criteria."25 The LTR intended to set a "cap" on allowable radiation dose in the event of institutional control failure, based on the idea that failures of institutional controls were unlikely but could not be ruled out.26 NRC's West Valley decommissioning requirements would not set a definite "cap" but would defer the decision to a vaguely described future process that involves NRC, EPA, and the public.27 This is a major divergence from the LTR.

2. Engineered barriers in relation to institutional controls 28 and the relevance of erosion to both engineered barriers and institutional controls. It is well known that geomorphic, watershed-scale erosion is a significant threat to containment of wastes at West Valley. 29 Maintenance of institutional controls at West Valley will necessarily require the type of "active institutional controls" and "ongoing active maintenance" to which the 10 CFR 61 Performance Objectives refer.30 Thus, in any analysis of the West Valley site, it would be disingenuous to assume that engineered barriers "are distinct and separate from institutional controls" inasmuch as erosion will inevitably breach or topple engineered barriers unless active institutional controls are maintained. The NRC Policy Statement makes this "distinct and separate" argument31 as if it were relevant to West Valley. NRC needs to recognize that these two concepts are historically interrelated (e.g., in the development of the LTR "cap" of 100 or 500 mrem/yr 32) and cannot be divorced from each other in any protective approach to West Valley decommissioning. Engineered barriers may remain effective for some period of time following loss of institutional controls33 but are not effective indefinitely.

3. Exemptions, especially in relation to NRC's false claim that "DOE is acting as a surrogate for NYSERDA until the NYSERDA license is reinstated at the end of the 35 WVDP",34 or that "DOE in essence is acting as a surrogate for NYSERDA."

a) Exemptions are not part of the LTR per se. NYSERDA, upon resumption of the site license, could not obtain an exemption from the LTR under 10 CFR Part 20, Subpart N, inasmuch as Part 50 license termination requires comTpliance with "the criteria for decommissioning in 10 CFR part 20, subpart E.,6 25 67 FR 5004 (February 1, 2002).

26 62 FR 39070 (July 21, 1997).

27 67 FR 5005-5006 (February 1, 2002), response A.2.

28 67 FR 5007 (February 1, 2002), response B.6.

29 See, for example, the DOE-NYSERDA West Valley Draft EIS (1996); responses thereto by NRC and NRC's contractor, Center for Nuclear Waste Regulatory Analyses; and SECY-98-25 1, p. 5.

30 See §61.42, §61.44, and the definition of "Active Maintenance" in §61.2.

3167 FR 5007 (February 1, 2002), response B.6.

32 62 FR 39068 (July 21, 1997).

33See, for example, p. 6 of the NRC Task Plan (April 27, 1988) that governs West Valley waste which contains between 10 and 100 nCi/g of transuranic elements.

34 67 FR 5004 (February 1, 2002), footnote 4.

3' 67 FR 5012 (February 1, 2002).

36 10 CFR 50.82.

8

b) NRC's claim that DOE is acting as a "surrogate" licensee at West Valley is specious. We find no support for this idea in either the West Valley Demonstration Project Act or the NRC License Amendment that suspended the license. If NRC can make a compelling argument that DOE has not only the rights but also the obligations of a licensee at West Valley, then we may be willing to consider the idea. Our position otherwise is that DOE has neither the rights nor the obligations of a licensee at West Valley and therefore cannot apply for an exemption under 10 CFR 20, Subpart N. We notice37 note that NRC's formal "Statement of Policy" in the FederalRegister does not grant any explicit right of exemption to DOE, and we therefore deny that DOE has any such right.

c) An exemption from the LTR "cap" of 100 or 500 mrem/yr would clearly invoke NEPA.

4. Selection of critical group. According to NRC, "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." 3 8 This is a reasonable approach and, to the extent that it matches 10 CFR 20.1003, is also the legally binding definition of "critical group." However, NRC seems willing to let the choice of the critical group be determined either by an existing NRC SRP document or by DOE and NYSERDA. 3 9 This may not be appropriate (and, in any case, cannot supersede the regulatory requirement to identify the group of individuals reasonably expected to be most highly exposed). As we have indicated previously, 40 those living downstream from the site (including the Seneca Nation of Indians, customers of Erie County Water Authority, residents of Buffalo, and others who live on the Great Lakes) need to be evaluated as critical group members. There is ample evidence that containment failures at the West Valley site (especially from erosion but also possibly from terrorist acts) will release large quantities of radionuclides into Buttermilk and Cattaraugus Creeks, Lake Erie, and other waters of the Great Lakes.

5. Combined dose. The NRC Policy Statement suggests that it may be permissible for the combined dose from the NRC-licensed and State-licensed portions of the West Valley site to exceed the LTR dose criterion and "cap.'41 This is not correct. The LTR does not allow the combined dose (including the SDA) to exceed the dose criterion and "cap" values specified in Part 20, §§20.1402, 20.1403, and 20.1404.

The LTR dose limits are consistently expressed in terms of "residual radioactivity,"

which by definition includes "radioactive materials remaining at the site as a result of

. Part V, under heading of "Final Policy Statement," 67 FR 5010-5012 (February 1, 2002).

38 67 FR 5006 (February 1, 2002), response B.2.

31 Ibid.

40 For example, see comments submitted September 21, 1996, by R. Vaughan on the DOE-NYSERDA Draft EIS, comments 115-119.

41 67 FR 5008 (February 1, 2002), response E.2.

9

routine or accidental releases of radioactive material at the site and previous burials at the site...'42 Thus, in assessing compliance with the LTR, the dose from the SDA must be combined with the dose from portions of the site under NRC jurisdiction.

The only exclusion from "residual radioactivity" is background radiation.

6. Method of combining dose projections for competing modes of failure. Given the fact that engineered barriers and other essential containment features may have various possible modes of failure, some reasonable method (such as probabilistic risk assessment) is needed for weighting and combining the doses predicted for each possible mode of failure. It is not acceptable for the LTR to be met by choosing a single mode of failure that meets the dose limit while ignoring another plausible mode of failure that produces doses that are orders of magnitude above the dose limit.

These are some of the issues that need to be addressed. We invite you to contact us to set up discussion of these issues before engaging in NEPA scoping activities.

Sincerely, Raymond C. Vaughan cc: A. Williams, DOE P. Piciulo, NYSERDA T. Attridge, CTF C. Schumer, Senate H. Clinton, Senate A. Houghton, House T. Reynolds, House J. Quinn, House J. LaFalce, House 42 10 CFR 20.1003.

10

WEST VALLEY Task force members, in inviting the agencies to the meeting, have 4'

raised concerns that the federal De partnent of Energy or the state En

' Panel raisses ergy Research and Development Authority could receive exemptions in radiation-dose levels now spelled concerns out in federal regulations.

They also have expressed con cerns that the DOE could be dis on cleanup missed from site activities in the fu ture and that the research and De velopment Authority could be left KATHY KELLOGG SBy holding a license to operate the site under fluctuating cleanup standards Caltar4gus Comrspondent and with few resources.

Paul Merges of the state Depart WEST VALLEY - Larr Camp ment of Environmental Conserva er, the Nuclear Regulatory Commis tion told the group he has concerns sion's decommissioning branch about the policy s criteria for low chief, emphasized to the West Val level radioactive waste and the pos ley Citizens Task Force on Tuesday bility for exemptions on radiation night that the commission's policy dosages.

statement on decommissioning the "I'm not sure whether I would nuclear waste site is final. change the document or reconsider Camper spoke to the group about the (West Valley Demonstration its concerns that the agency failed to Project Act). Maybe there will be do a job required by the 1980 West discussion about that later," said Valley Demonstration Project Act. Merges, when asked how he would That law states the agency must strengthen the policy.

set criteria for decommissioning the Paul Giardina of the Environ site. But the task force claims the mental Protection Agency said the policy creates new loopholes that final yardstick will be how much ra could lead to higher radiation doses dioactive contamination is left in the and perpetual licensing for the for drinking water, soil and air pathways mer fuel-reprocessing.facility. to the population. He challenged the The task force inited the NRC group to take a new perspective.

and all other federal and state agen James Liberman of NRC said the cies involved in site activities to at West Valley Demonstration Project tend its meeting. The agencies will Act was unclear about the criteria be meeting at 8 this morrung to con and reminded the group that the li tinue discussions on cleanup stan cense may not be terminated if dards for regulators. cleanup does not meet standards.

The NRC at 7 tonight will explain Susan Breckbill, director of the its policy statement, containing the Department of Energy'5 Ohio field cleanup criteria, during a public office, assured the group that decon meeting beginning in the Ashford tamination is being accelerated, and Office Complex on Route 219. her agency will continue to monitor "There are a lot of assumptions. its waste and fix what goes wrong.

There's a good degree of speculation She further urged the Energy and about what's going to happen down Research Development Authority to the road," said task force member become more involved in finalizing Eric Wohlers, who also serves as the an environmental impact statement Cattaraugus County Environmental that recommends a preferred clo Health director. sure alternative.

Referring to the policy statement issued in January, he said the task force expected better definitions and guidelines on cleanup in case con tainment structures or site controls fail in the future.

O&CwC tjtr WET VLLE IWEST VALLEY Nuclear cleanup contractor to lay off 66 employees i . " ,.'* .. .. , '. , .'* ,,, *, . . . ,

By JOHN F. BONFAITI "The project is changing," he said. "We've got to the company concluded that those earlier cuts in per

'New Su get a work force in place for the next phase, which is sonnel still left too many workers.

decontamination. We've been working over the last Workers will be offered severance packages, a The West Valley Demonstration Project will lay off erhree years to.-. determineI what skills we needed to Umov forward chance to continue their health care benefits under 66Jemployees by the end of Sepsteaer, the project's. The federal'Department of Energy, which has fund4 several programs and retraining, Little said.

prmcipal contractor announced Tuesday. " 90 percent of the cleanup, anqd the N~w York F'ner" ,The 15 hourly workers who will be fiked are repre Jim Little, president of West Valley Nuclear Ser- gy Research and Development Akithority, which hat sented by the Internatiopal Association of Machinists vices, said 51 of the workers are salaried employees provided the other 10 percent, have spent nearly $2 and Aerospace Workers. The displaced workers, who working in a variety of administrative, enineing and billion here since 1980. will be determined according to union seniority rules, clerical jobs at the project 35 miles south of Buffalo. But the federal contribution to the West Valley. will be gone by September.

They will be gone by the end of May. budget was cut $17 million last year, to $91.6 million, Little stressed that the layoffs aren't due to budget as Congressional appropriators attempted to push Their chief steward, Pete Cooney, said that while reductions at the project, a Joint state-federal cleanup stalled negotiations between the DOE and NYSER the layoffs aren't a surprise, he's disappointed that, as effort that has pumped nearly 600,000 gallons of highly DA on an agreement for the site's future. some citizen watchdog groups allege, the federal gov radioactive liquid waste out of rotting underground The vitrification part of the project will be complete ernment seems to be planning a cutback on the scope tanks and turned it into glass cylinders using a process by September, and West Valley Nuclear Services has of the cleanup.

called vitrification, been trimming jobs from its work force, which was at "We were told from the start that there was going "The reduction in force is not related to... what 716 as recently as last year. The new reductions will to be work for vitrification and ... in the decontami we're going to get or not get," Little said. "It's simply bring WVNS employment at the site to just undei 500, nation and decommissioning," he said. "Now, all of a based on what we see over the next few years." Little said. sudden, the company looks as if they're trying to make Little said the job cuts are a function of the proj- Until now, the company has used buyouts, retire DOE happy and clean up only the hottest few areas."

ect's shift in emphasis from vitrification to decontami- ments and reassignments to otherprojects to cut the nation and decommission. work force. The layoffs announced Tuesday came after e-mail:jbonfatt@ buffnews.com

March 27, 2002 REGULATORS COMMUNICATION PLAN ON APPUCATION OF CLEANUP REQUIREMENTS FOR DECOMMISSIONING THE WEST VALLEY SITE I SCOPE On November 27, 2001, the US Environmental Protection Agency (EPA) Region 2, US Nuclear Regulatory Commission (NRC), New York State Department of Environmental Conservation (NYSDEC), and New York State Department of Health (NYSDOH) met to discuss applicable cleanup criteria and regulatory roles and responsibilities for the West Valley site. These agencies, together with New York State Department of Labor (NYSDOL), are herein referred to as the regulators. In this meeting, the regulators agreed to develop a communication plan that:

1) identifies applicable cleanup requirements and expectations that need to be addressed in decommissioning the West Valley site, and 2) describes the roles and responsibilities of involved regulatory agencies. While it may not represent consensus, compromise, or resolution of all differences between the regulatory agencies requirements or perspectives, the regulators intend to use this communication plan to foster a better understanding of cleanup requirements/expectations and roles/responsibilities related to decommissioning of the West Valley site. It is also intended to assist the scoping of issues that may need to be considered in the West Valley decommissioning Environmental Impact Statement (EIS) for the West Valley Development Project (WVDP).

II GOALS AND OBJECTIVES Identify applicable regulatory cleanup requirements and expectations.

Identify roles and responsibilities of involved regulatory agencies.

III BACKGROUND In October 2000, the regulators initiated a dialogue on the various cleanup standards that apply at West Valley. It was recognized that different Federal and State agencies have different cleanup standards that need to be addressed. The regulators agreed that it is a desirable goal help to work together and present these requirements in a clear and coordinated way which will facilitate planning and decision-making processes, eliminate redundancy, and make better use of resources.

A General Accounting Office (GAO) report on West Valley was made public on June 12, 2001.

The report (GAO-01-314) includes several recommendations, one of these recommendations pertains to coordination among agencies on cleanup requirements. Specifically, GAO recommended that NRC and EPA, in coordination with New York State, agree on how their different regulatory cleanup criteria should apply to the site. On November 27, 2001, regulatory Valley agencies met to discuss these and related issues on the decommissioning of the West site. In this meeting, the regulators agreed to develop a communication plan that identifies 1

applicable cleanup requirements and expectations, and describes the roles and responsibilities of involved regulatory agencies.

IV PRINCIPAL POINTS OF AGREEMENT Regulators agreed upon a number of general points, including:

• To work together in identifying cleanup criteria and expectations.

• To participate in a planned public meeting on NRC decommissioning criteria.

• To develop a communication plan that includes a description of roles and responsibilities expectations.

of involved regulatory agencies, and a matrix of cleanup requirements and

• To address and resolve issues through the Decommissioning EIS.

• To consider respective roles as a cooperating agency for the decommissioning EIS.

• To address and resolve regulatory issues in a timely manner.

• To acknowledge that some waste may remain onsite.

site

• To acknowledge the possibility of partial site release and that some portion of the nay remain under license for the foreseeable future.

• To solicit stakeholder input on decommissioning and ability to meet site cleanup criteria.

for

• To agree in principle with cleanup to NRC dose limit of 25 mrem/yr with ALARA, unrestricted release.

V REQUIREMENTS AND EXPECTATIONS and expectations for One objective of this plan is to identify the applicable cleanup requirements and decommissioning the West Valley site. Table I provides a matrix of requirements and expectations that all regulators endorse. Table 2 provides a matrix of requirements out the various agencies expectations for individual regulators. Table 2 is intended to point the underlying statues from clean-up standards and expectations resulting from the difference in which each agency has been charged with cleanup responsibility. It is designed to serve as a listing of applicable cleanup requirements and expectations that need to be addressed from the tables consolidate information in an effort to perspective of the listing agency. Together, these stakeholders involved in the West Valley site promote a common understanding among decommissioning.

VI AGENCY ROLES AND RESPONSIBILITIES NRC Role and Responsibility Western New York NRC has the regulatory responsibility under the Atomic Energy Act for the is the subject of the NRC license issued to Nuclear Service Center (WNYNSC) which 50, with the exception of the State-Licensed Disposal Area NYSERDA pursuant to 10 CFR part the WVDP.

(SDA). The license is currently in abeyance pending the completion of responsibilities for NRC, The West Valley Demonstration Project Act (WVDPA) specifies certain

2) providing including: 1) prescribing requirements for decontamination and decommissioning; under the project review and consultation to DOE on the project; and 3) monitoring the activities NRC has agreed to provide for the purpose of assuring the public health and safety. In addition, (DOE) and New York State support as a cooperating agency with US Department of Energy 2

Energy Research and Development Authority (NYSERDA), under the National Environmental Policy Act (NEPA), on the West Valley Decommissioning EIS. NRC may adopt this EIS for determining that the preferred alternative meets NRC's decommissioning criteria, assuming that NRC will find it acceptable.

Notwithstanding the WVDP, NRC retains the regulatory responsibility for the non-DOE activity in the non-project area and non-SDA area to the extent Part 50 contamination exist both on and offsite. Following the completion of the WVDP and reinstatement of the license, NRC will have the regulatory responsibility for authorizing termination of the license, should NYSERDA seek license termination.

EPA Role and Responsibillty EPA agrees to be a cooperating agency with DOE and NYSERDA, under NEPA, on the West Valley decommissioning EIS. EPA will review the cleanup plan, EIS and other documents developed by DOE in conjunction with NYSERDA to provide early input so the remediated site will also meet the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) risk range to avoid the potential need to list the WVDP on the National Priority List (NPL). Currently, the WVDP is not an NPL listed site. EPA will inspect and review West Valley's radionuclide air emissions for compliance with 40 CFR61 limit of 10 mrem/yr. Since a number of EPA programs have been delegated to New York State agencies, EPA will provide consultation and oversight for State implementation of the delegated Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA) and Resource Conservation and Recovery Act (RCRA) programs that are applicable to the West Valley site.

NYSDEC Role and Responsibility Agreement State Authority In 1962, pursuant to Section 274b. of the Atomic Energy Act of 1954, New York State entered into an agreement with the Atomic Energy Commission (AEC), the predecessor to the NRC, whereby the Commission discontinued certain of its regulatory authority over byproduct, source, and small quantities of special nuclear material within the State. The State and AEC also adopted a related Memorandum of Understanding in 1965 clarifying certain mutual obligations relating to the regulation of Commission licensed activities within the State. As a result, the regulation of radioactive materials, except as pertains to production and utilization facilities, and facilities under exclusive federal jurisdiction, generally falls within the State's responsibilities for protecting the public health and safety under its police powers. As part of these responsibilities, NYSDEC regulates environmental discharges and disposal of radioactive materials, and transportation of low level radioactive waste within the State for non-federal facilities. Thus, the NYSDEC regulates the State-Licensed Disposal Area (SDA) through issuance of permits under 6 NYCRR Part 380 Rules and Regulations for Prevention and Control of Environmental Pollution by Radioactive Materials, and the transportation of Low-Level Radioactive Waste (LLRW) under 6 NYCRR Part 381 Low-level Radioactive Waste Transporter Permit and Manifest System.

(Please note that NRC relinquishes its regulatory authority to the State. This is fundamentally different than the delegation to the State approach used by the EPA.)

3

properly NYSDEC's role at the SDA is to ensure that the site owner/operator, NYSERDA, discharges of radioactive materials to the maintains the integrity of the SDA, minimizes in a manner that is protective of the public health environment, and properly closes the facility Part 380. NYSDEC also has a broader mandate under and environment and in compliance with (ECL) § 3-301, 1. i., to protect the public health and the Environmental Conservation Law specific regulation environment from sources of radioactive materials contamination beyond the of sites subject to Part 380 permitting.

RCRA - Hazardous Waste and Mixed Waste Facilities which In 1990, the NYSDEC received authorization from the EPA to regulate Federal Series. This includes contain Hazardous and Mixed Waste pursuant to 6 NYCRR Part 370 and Corrective Action permitting activities under Interim Status for RCRA regulated units from Requirements for investigation and if necessary, remediation of hazardous constituents Solid Waste Management Units.

RCRA Permittinq for RCRA NYSDEC's role is to ensure compliance with applicable permitting requirements or mixed waste. This includes closure and if regulated units storing or treating hazardous necessary, post-closure care of these units.

RCRA Corrective Action 3008 (h) [New NYSDEC's role is to ensure compliance with the1992 joint NYSDEC/USEPA Order issued to the York State Environmental Conservation Law, Article 27, Titles 9 &13]

management units and USDOE and NYSERDA. The order required investigation of solid waste Measures Study (CMS),

to perform interim corrective measures, if necessary. A Corrective Order. NYSDEC has which evaluates selection of a remedial alternative(s) is required under the comply with the CMS requirements. NYSDEC's agreed to utilize the EIS process as a means to and selection(s) under the EIS meet the role is to ensure that the remedial option(s) requirements and standards for RCRA corrective action.

Protection of the Environment under ECL and NYSDEC is responsible for ensuring the protection of the State's environment all aspects of the protection of natural resources, delegated federal responsibilities. This entails of the wetlands, groundwaters, mineral resources, and wildlife including the lands, streams, State not reserved by a federal agency.

in the NYSDOH to In addition, NYSDEC program staff regularly consult with their counterparts for the protection of public health, is in ensure that the DOH, in their role as lead agency concurrence with the remedial actions under review by the NYSDEC.

NYSDOH Role and Responsibility agency for protection of As established in NYS Public Health Law, NYSDOH is the lead State However NYSDEC, public health from any public health threat, including ionizing radiation.

Law (ECL), will serve as under its responsibility as established in Environmental Conservation will ensure its responsibility the lead State agency for the decommissioning project. NYSDOH reviewing and concurring for protection of public health via participation with NYSDEC staff in 4

that NYSDOH will routinely interact with NYSDEC on any remedial actions. It is not expected water supply operators, with DOE or NYSERDA. Additionally, NYSDOH regulates public by the site, to ensure compliance with the requirements of including any that may be impacted Part 5 of 1ONYCRR.

NYSDOL Role and Responsibility 38 (12 NYCRR 38) for the NYSDOL has issued regulations under Industrial Code Rule to the regulatory powers and commercial and industrial use of radioactive materials, not subject regulations derives from Section 483 jurisdiction of the NYSDOH. Statutory authority for these Labor Law. Pursuant to Industrial Code of the General Business Law, and Section 27 of the authorizing license number 0382-1139, Rule 38, NYSDOL has issued radioactive materials license radioactive waste at the SDA. The NYSERDA to possess and manage emplaced program, in accordance with a radioactive safety requires NYSERDA to conduct its operations to workers and the to minimize radiation exposures reviewed and approved by the Department, public resulting from SDA operations.

VII DECOMMISSIONING ISSUES the West Valley Decommissioning EIS.

Significant issues exist that will need to be addressed in to the extent practical. Regulators The NEPA process will be used to address these issues, cooperating agency to support the have also agreed to consider working in the role of a examples of the types of issues that will be development of this EIS. The following issues are issues that EIS. If there are decommissioning addressed in the West Valley decommissioning be identified early in the NEPA cannot be addressed through this EIS, these issues should process.

area was used from 1966 to NRC Licensed Disposal Area (NDA) - This 5-acre disposal packaging configurations. The 1986 and includes a variety of waste types, activities and fuel reprocessing and NDA was used for the disposal of radioactive waste from decommissioning. Wastes were associated processing, such as decontamination and commercial operation of the site by placed in the NDA both during the NRC licensed the former during the initial cleanup of Nuclear Fuel Services and under the WVDPA (all The buried waste includes: reactor hardware reprocessing facility by the DOE. (which was Site's N-Reactor components, including hulls), spent fuel from the Hanford filters, failed and sludges, not processed because of ruptured cladding), ion exchangers EIS may and discarded equipment, and contaminated soil. The decommissioning the NDA may possibility that evaluate unrestricted and restricted release scenarios, the extent of the DOE's responsibility remain under license for some period of time, and the for wastes which they placed there.

disposal area was State Licensed Disposal Area (SDA) - This 16-acre commercial wastes from various government, operated from 1963 to 1975. It received radioactive operations at including the reprocessing commercial, medical, and academic facilities, place at the SDA falls under West Valley. Since the type of disposal operation that took and permitted by the NYSDEC.

Agreement State authority, it is licensed by the NYSDOL decommissioning criteria for the Thus the NRC does not have regulatory authority to set 5

SDA. This responsibility is held by the NYSDEC and the NYSDOL. However, since the the decommissioning cleanup activities at the site are subject to both NEPA and SEQRA, in order for NYSERDA to fulfill its EIS will include consideration of closure of the SDA SEQRA obligations.

tanks that were used for High-Level Waste (HLW) Tanks - There are four underground gallons of liquid HLW generated during the storing and processing over 600,000 has been solidified via a vitrification process. Total reprocessing era. This liquid waste Curies. DOE expects to Cs-1 37/Sr-90 radioactivity vitrified is approximately 11.7 million HLW heels in these tanks is complete the vitrification of liquid HLW by 2003. Removal of of residual contamination proceeding slowly. DOE is presently examining concentrations residual contamination in these tanks. Regulators have stressed the need to remediate term risk to public health associated with these tanks, to the extent practical, due to long options for posed by this contamination. The decommissioning EIS will evaluate these tanks. The decommissioning and closing these tanks in-place, or removing reprocessing, and not HLW, impacts of identifying the waste in the tanks as incidental to should be considered in the decommissioning EIS.

"GroundwaterPlume - Radioactively contaminated groundwater, which emanated from since the late the reprocessing building and migrated on-site, has probably existed identified or characterized until the mid-1990s. Under 1960s to early 1970s, but was not of several isotopes, but beyond the building footprint it the building, the plume consists an area that is consists only of the isotope Strontium-90. The plume now covers path of this plume is approximately 300 feet by 900 feet. Groundwater in the main flow intended to prevent being pumped and treated, and a below-grade permeable wall EIS will further migration is being tested on an arm of this plume. The decommissioning evaluate options to remediate or monitor this plume.

"Partial Site Release - Partial site release, in the context of West Valley, refers to the use, while other portions situation where a portion of the site is released for unrestricted or under license. Regulators acknowledge the of the site's use may remain restricted remain under license reality of partial site release and that some portion of the site may the scenario of for some period of time. The decommissioning EIS should evaluate partial site release.

VIII AUDIENCE external audiences. Internal This plan will help regulators communicate with both internal and respective management and staff. External audiences refer to the regulators with their stakeholders and interest groups:

audiences may include the following

• DOE

• NYSERDA

• West Valley Citizen Task Force

• Seneca Indian Nation site

• General public which include residents living near the West Valley

• Environmental Organizations

• Community, professional, civic and public interest groups 6

Business organizations and Chambers of Commerce Congressional representatives and their staff Media representatives Other Federal, State and Local Governments Canada 7

IX ACRONYMS AEC Atomic Energy Commission ALARA As Low as Reasonably Achievable CAA Clean Air Act Act CERCLA Comprehensive Environmental Response Compensation and Liability CMS Corrective Measures Study CWA Clean Water Act DCGLs Derived Concentration Guideline Limits DOE US Department of Energy ECL Environmental Conservation Law EIS Environmental Impact Statement EPA US Environmental Protection Agency FFCA Federal Facilities Compliance Act GAO US General Accounting Office HEAST Health Effects Assessment Summary Tables HLW High-Level Waste IRIS Integrated Risk Information System LLRW Low-Level Radioactive Waste LTR License Termination Rule MARSSIM Multi-Agency Radiation Survey and Site Investigation Manual MCL Maximum Contaminant Level NDA NRC-Licensed Disposal Area NEPA National Environmental Policy Act NESHAP National Emission Standards for Hazardous Air Pollutants NPL National Priority List NRC US Nuclear Regulatory Commission NYCRR New York Code of Rules and Regulations NYSDEC New York State Department of Environmental Conservation NYSDOH New York State Department of Health NYSDOL New York State Department of Labor NYSERDA New York State Energy Research and Development Authority RCRA Resource Conservation and Recovery Act SDA State-Licensed Disposal Area SDWA Safe Drinking Water Act SEQRA State Environmental Quality Review Act SPDES State Pollutant Discharge Elimination System SWMUs Solid Waste Management Units TAGM Technical Administrative Guidance Memorandum WNYNSC Western New York Nuclear Service Center WVDP West Valley Demonstration Project WVDPA West Valley Demonstration Project Act 8

TABLE I REGULATORY MATRIX All Agencies Agreement on RequirementtExpectation S~EPA EPA NRC NYSDEC NYSDOH ADDRESS IN EIS A ency Requirement/Expecttio, ILLAGENCIES All actions and final status adhere to the ALARA principle.

Agree in principle with cleanup to NRC dose limit of 25 mrem/yr for unrestricted release'.

Aclknowledge different portions of site may be released for

• i

• i

• unrestricted use, restricted use with Institutional controls, and portions likely to remain under license.

DOE EIS should identify and for applicable cleanup guidance satisfacorily address all relevant regulatory

• I /

agencies; the preferred alternative needs to meet the the NWDP.

anduorforrestricted Identify applicable regulatory DCGL requirements for unrestricted release a

• I -

Follow (MARSSIM) Radiation Manual Multi-Agency guidance, Survey and Site Investigation or some other statirtiatoy valid and technically defensible approach, for the

• *

• I

• demons=tration of compliance,, during the final status survey. * /

Solicit stakeholder input on decommissioning and ability toar meetisbte cleanup critedra.

9

TABLE 2 REGULATORY MATRIX Individual Agency Requirement/ExPctatiOn Agency with Statutory Oversight/CoOrdinatIon X : Lead Agency Requlrem.,ntUExpectation; + -

I I' NRC 10

TABLE 2 REGULATORY MATRIX Individual Agency RequirementlExpectation X Lead Agency RequiremenVExpectation; + - Agency with Statutory Overslght/Coordlnatlon EPA NRC NYSDEC NYSDOH ADDRESS Requinrnent/ExpeCtation e IN EIS NRC's LTR is the criteria for the WVDP, reflecting the fact X that the applicable decommissioning goal for the entire NRC licensed site is compliance with the requirements of the LTR.

The criteria of the LTR shall apply to decommissioning oa.

HLW tanks and other facilities in which HLW was stored; facilities used In solidification of waste; and any material and hardware used in connection with the WVDP.

The following criteria should be applied to incidental waste X determinations: (1) the waste should be processed (or should be futher 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.

Calculated dose for incidental waste to be integrated with a X other doses from remaining material at the NRC-licensed site.

Allow consideration of long-term or perpetual license or other X V approaches for parts of the site where cleanup to LTR is prohibitively expensive or technically impractical. I LTR is decommissioning criteria for NDA. IX I_

II

TABLE 2 REGULATORY MATRIX Individual Agency RequirementlExpectation X = Lead Agency Requiemmnt/Expectalt/on; + - Agency with Statutory OversightCoordinaUtion EPA NRC NYSDEC NYSDOH ADDRESS EIS Requirernent/ixpectation _IN X V The decommissioning EIS will consider analysis of impacts beyond 1000 yeam.

Coordinated approach with State in applying LTR criteria to X /

NDA and SDA.

X /

LTR applies to termination of NRC license after the license is reactivated. NRC's intent is that any exemptions or alternative criteria authorized to meet provisions of WVDPA will also apply to termination of NRC license.

Site-specific analysis of impacts and costs in deciding on X X /

whether or not to exhume previous burials. (NDA) (SDA)

Allow consideration of exemptions for unique past burials on X X /

case-by-case basis. (NDA) (SDA) 12

TABLE 2 REGULATORY MATRIX Individual Agency Requirement/Expectation OversightlCoordination X = Lead Agency Requirment/Expectatlon; + . Agency with Statutory NYSDEC NYSDOH ADDRESS EPA NRC IN EIS n

R equir. e,-mEx t[En-atien 4IEW YORK STATE DEPARTMENT OF HEALTH (DOH) X /

4.

,i.

State regulates public drinking water Supplies and sets maximum Contaminant Levels (MCLs) for man-made betai and gamma emitters based on a 4 mremuyr dose limit. Limit applies to community water systems, including any that might utilize water from West Valley site.

4EW YORK STATE DEPARTMENT OFFENVIRONMENTAL 1 1 "ONSERVATMION (NYSDEC)

Radiological Groundwater and surface water standards are based on State drinking water standards and includes Sr-g0 and H-3 1.

I A

concentrations and a 4 mrem/yr dose limit. NYSDEC considers that best usage for all Class GA (fresh) groundwater is as source of potable drinking water (Part 701t.*15) ......

13

TABLE 2 REGULATORY MATRIX Individual Agency RequlremenftExpectatlofn Statutory OversightfCoordination X = Lead Agency RequirenritlExpecttlion; + = Agency with EPA NRC NYSDEC NYSDOH ADDRESS IN EIS Requirement/Expectatioe X TAGM-4003 Soil cleanup guidance of 10 mRem/yeer should be considered. Differences in modeling approaches generally make NYSDEC's 10 toRemlyear equivalent to NRC's 25 mRem/year plus ALARA.

Part 380 X /

SDA must reman in compliance with 6 NYCRR Part 380.

Parts 382 and 383 /

Any closure alternative for the SDA must make every reasonable effort to meet the Performance Objectives of 6 NYCRR Part 382.

Any option requiring a new LLRW disposal facility, or expansion of an existing facility, would have to comply with the performance and dose objectives of Parts 382 and 383. X NYSDEC expects that concentration averaging for the high level radioactive waste tanks wil conform to Part 382.80 (h)2).

X Any residual waste left wi place would fall under Agreement State authority.

14

TABLE 2 REGULATORY MATRIX Individual Agency Requirement/Expectation Statutory Oversight/Coordination X - Lead Agency RequiremintExpectation; + - Agency with NRC NYSDEC NYSDOH ADDRESS IN EIS ency /

RequirementtExpectation X Any LLRW facility considered for siting under the ECL, Title 3 Section 29, can not be considered for placement at West Valley.

RCRA X ,/

+

Operation, storage, closure and post-closure of RCRA Regulated Units must comply with all applicable NYCRR Part 370 series regulations.

3008(h) RCRA Consent Order 15

TABLE 2 REGULATORY MATRIX Individual Agency Requirement Expectation X = Lead Agency RequireflfitlEXpecteton; + - Agency with Statutory OversIghtICoordlnation EPA NRC Requiremepnt/gyents Atob

- A CMS, remedial activities plnc nd -term moitotrig and X maintenance of Sold Waste Management Units (SWMUs) must comply withtnd Order utilization theAdmninistration of appropriate NYSDEC Technical Guidance Memorandums, including TAGM-4046, "Contained-In" TAGM-3028, and other such pertinent documents including, but not limited to the NYS Groundwater standards 6 NYCRR Part 703. ASTM Risk-Based Corrective Action, USEPA Risk Assessment Guidance for Superfund utilizing the Integrated Risk Information System (IRIS) and Health Effects Assessmet. Summary Tablehs-(HEAST), etc.

- Interim Measures may be required if EPA/NYSDEC X determines that they are necessary under the terms of the Order.

- A public participation program &hall include the RCRA X comonets to be address.ed. in the EIS (CMS).

Federal Facllftles Compliance Act (FFCA)

- Maintain compliance with the FFCA requirement&during +

closu,re activities.

16

TABLE 2 REGULATORY MATRIX Individual Agency RequIrem4nt/ExpectatIon X = Lead Agency RequirementlExpectation; + - Agency with Statutory OverslghtfCoordinatlon EPA NRC NYSDEC NYSDOH ADDRESS Require ment/E~xp_, ti on ency IN EIS CWA All actions at fte ite are subject to State Pollutant Discharge

/

Elimination System (SPDES) requirements under 6 NYCRR Part 750 - 758.

/

Surface and Groundwater Standards 6 NYCRR Part 700- +X 705.

Cleanup complies with NYSDEC 208 planning objectives. X /

X /

Cleanup meets requirements for 401 certification under CWA.

OTHER X /

Air discharges subject to the CAA, including Title V.

X /

Endangered species laws under 6 NYCRR Part 182 must be complied with.

X /

Cleanup activities that would leave solid waste on the site must comply with 6 NYCRR Part 360.

X /

Cleanup meets NYSDEC requirements for closure of abandoned oil and gas wells under 6 NYCRR Part 555.

17

TABLE 2 REGULATORY MATRIX Individual Agency RequirsmenUtExpectaton X - Lead Agency Requlremint/Expectatlon; + - Agency with Statutory OversightlCoordination EPA NRC NYSDEC NYSDOH ADDRESS Requirement/Expectation __IN EIS Cleanup meets ECL Article 15 stream protection X V requirements.

Cleanup complies with Storage Tank closure requirements + X /

under 6 NYCRR Part 613.

Federal and State wetlands protection requirements (33 CFR + X /

Part 320 and 6 NYCRR Parts 608 and 683) must be met.

Use of WNYNSC soils for caps and erosion controls on the X /

WVDP have to comply with Mined lands regulations in 6 NYCRR Parts 420 - 425.

1 .Assumes issues (such as, modeling methods and assumptions) related to application of this dose limit are resolved.

2.DOE Decommissioning EIS must demonstrate that DCGLs based on 10 CFR 20 Subpart E dose limits meet CERCLA risk range consistent with EPA Risk Assessment Guidance for Superfund.

i8

Federal Register!/Vol. 67, No. 22 /Friday, February 1, 2002 /Notices 5003 Federal Re2ister/Vol. 67, No. 22/Friday, February 1, 2002/Notices North, 11555 Rockville Pike (first floor), Nuclear Plant, Unit 1.1technical The amendments solicit public comment on the draft.

change facility This final policy statement was would Rockville, Maryland. Publicly available developed after considering public S- specifications to allow the plants to records will be accessible electronically provide incore irradiation services for comments on the draft, and continues to from the Agencywide Documents of Energy apply the LTR as the criteria for the the United States Department Access and Management Systems WVDP at the West Valley site.

(ADAMS) Pul*-l 4

'lctronic

-. Reading for the production of tritium for national at the NRC Web defense purposes. EFFECTIVE DATE: February 1, 2002.

Room on the ma,-.

The Board is comprised of the site, http://www.nrc.gov/reading-rm/ following administrative judges: FOR FURTHER INFORMATION, CONTACT:

adams/html. Persons who do not have Atomic Safety Chad Glenn, Office of Nuclear Material Thomas S. Moore, Chair, access to ADAMS or who encounter Safety and Safeguards, Mail Stop T problems in accessing the documents and Licensing Board Panel, U.S. 8F37, U.S. Nuclear Regulatory located in ADAMS, should contact the Nuclear Regulatory Commission, Washington, DC 20555-0001 Commission, Washington, DC 20555 NRC PDR Reference staff by telephone 0001.

at 1-800-397-4209, 301-415-4737, or Dr. Peter S. Lam, Atomic Safety and by e-mail to pdr(4@nrc.gov. Licensing Board Panel, U.S. Nuclear SUPPLEMENTARY INFORMATION:

Regulatory Commission, Washington, I. Introduction Dated at Rockville, Maryland, this 28th day DC 20555-0001 of January 2002. II. Background (Draft Policy Statement)

For the Nuclear Regulatory Commission. Dr. Thomas S. Elleman, Atomic Safety III. Overview of Public Comments and Licensing Board Panel, U.S. IV. Summary of Public Comments and Christopher Gratton, Nuclear Regulatory Commission, Responses to Comments Sr. Project Manager, Section 2, Project Project Washington, DC 20555-0001 A. Comments on the LTR Directorate1,Division of Licensing B. Comments on LTR guidance Management, Office of NuclearReactor All correspondence, documents, and other materials shall be filed with the C. Comments on implementing the LTR Regulation. D. Comments on NRC's process for administrative judges in accordance

[FR Doc. 02-2498 Filed 1-31-02; 8:45 am] prescribing the decommissioning criteria with 10 CFR 2.701.

BILLING CODE 7590 E. Comments on jurisdictional aspects of Issued at Rockville, Maryland, this 28th prescribing the decommissioning criteria day of January 2002. F. Comments on the use of incidental NUCLEAR REGULATORY G. Paul Bollwerk, IR, waste criteria at the West Valley site COMMISSION Chief AdministrativeJudge, Atomic Safety G. Comments related to how the site and LicensingBoardPanel. should be decommissioned

[Docket Nos. 50-327-OLA, 50-328-OLA, & H. Comments on the wording of the draft 50-390-OLA; ASLBP No. 02-796-01-OLA] [FR Doc. 02-2500 Filed 1-31-02; 8:45 am] policy statement BILLING CODE 7590-01-P I. Other comments Tennessee Valley Authority; Sequoyah V. Final Policy Statement SNuclea nits I & 2; Watts Bar I. Introduction Nuclearl4ant, Unit 1; Establishment of NUCLEAR REGULATORY Atomic Safety and Licensing Board COMMISSION This final policy statement is being Pursuant to delegation by the Decommissioning Criteria for the West issued under the authority of the WVDP Commission dated December 29, 1972, Valley Demonstration Project (M-32) at Act, to prescribe decommissioning published in the Federal Register, 37 FR the West Valley Site; Final Policy criteria for the WVDP.

2P - r7 7,

'10)' and sections 2.105, 2.700, Statement II. Background (Draft Policy Statement) 2.T. - ý., 2.714a, 2.717, 2.721, and 2.772(j) of the Commission's AGENCY: Nuclear Regulatory From 1966 to 1972, under an Atomic Regulations, all as amended, an Atomic Commission. Energy Commission (AEC) license, Safety and Licensing Board is being ACTION: Final policy statement. Nuclear Fuel Services (NFS) established to preside over the following

SUMMARY

On December 3, 1999 (64 FR reprocessed 640 metric tons of spent proceeding: fuel at its West Valley, New York, 67952), the Commission issued, for Tennessee Valley Authority, Sequoyah facility-the only commercial spent fuel public comment, a draft policy reprocessing plant in the U.S. The Nuclear Plant, Units I &2, Watts Bar Nuclear statement that would approve the Plant, Unit 1. facility shut down, in 1972, for application of the U.S. Nuclear modifications to increase its seismic This Board is being established Regulatory Commission's (NRC's) as the stability and to expand its capacity. In pursuant to two notices of consideration License Termination Rule (LTR),

1976, without restarting the operation, of issuance of operating license decommissioning criteria for the West Project (WVDP) at NFS withdrew from the reprocessing amendment, proposed no significant Valley Demonstration business and returned control of the hazards consideration determination, the West Valley site. It also held a facilities to the site owner, the New and opportunity for a hearing published public meeting, on January 5, 2000, to York State Energy Research and in the Federal Register (66 FR 65,000

-- , Although the TVA license amendment requests Development Authority (NYSERDA).

and 65,005 (Dec. 17, 200" resulted in proceeding involves petitions for that are the subject of the WPIT and BREDL hearing The reprocessing activities requests that triggered this Licensing Board about 2.3 million liters (600,000 gallons) intervention submitted Jamx-.ý ,

constitution notice were submitted separately, of liquid high-level waste (HLW) stored 2002, by We the People, Inc., Tennessee tinvolve different facilities, and were the subject of ground in tanks, other radioactive both below (WPIT) and the Blue Ridge separate hearing opportunity notices, amendments are challenged by each of the wastes, and residual radioactive Environmental Defense League Under the circumstances, one Licensing contamination.

petitioners.

(BREDL), respectively, challenging Board is being established to consider both requests by the Tennessee Valley contested TVA applications in a consolidated The West Valley site was licensed by Authority (TVA) to amend the operating proceeding. Any objection to this consolidation by AEC, and then NRC, until 1981, when licenses for the Sequoyah Nuclear Plant any of the participants to the proceeding should be the license was suspended to execute raised with the Licensing Board promptly.

Units 1 and 2, and the Watts Bar

_______________ ___________ I I II 5004 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices the 1980 WVDP Act, Pub. L.96-368.1 NRC in its decision on on January 5, 2000. As a result of that The WVDP Act authorized the U.S. decommissioning criteria. The draft EIS meeting, the Commission extended the Department of Energy (DOE), in was published in 1996. Subsequently, comment period to April 1, 2000. This cooperation with NYSERDA, the owner DOE decided to descope this EIS into final policy statement was developed of the site and the holder of the two separate EISs to address: (1) Near after considering the public comments suspended NRC license, to: (1) Carry out term decontamination and waste on the draft. This final policy statement a liquid-HLW management management at the WVDP; and (2) recognizes that a approach to demonstration project; (2) solidify, decommissioning, long-term decommissionings needed both to transport, and dispose of the HLW that monitoring, and stewardship of the ensure that public health and safety and exists at the site; (3) dispose of low-level site. 2 The NRC will not be a Cooperating the environment are protected and to waste (LLW) and transuranic waste Agency on the decontamination and define a practical resolution to the produced by the WVDP, in accordance waste management EIS because the challenges that are presented by the site.

with applicable licensing requirements; Commission is not prescribing criteria In that regard, the Commission has and (4) decontaminate and for decontamination activities decided to prescribe the LTR criteria for decommission facilities used for the considered in this EIS. The NRC will be the WVDP at the West Valley site, WVDP, in accordance with a Cooperating Agency on the EIS for reflecting the fact that the applicable requirements prescribed by NRC. decommissioning under the WVDP Act. decommissioning goal for the entire NYSERDA is responsible for all site The WVDP Act does not address license NRC-licensed site is compliance with facilities and areas outside the scope of termination of the NRC license for the the requirements of the LTR. However, the WVDP Act. Although NRC site, or portions thereof. Any such the Commission recognizes that health suspended the license covering the site license termination will be conducted and safety and cost-benefit until completion of the WVDP, NRC has (if license termination is possible and considerations may justify the certain authorities, under the WVDP pursued) under the Atomic Energy Act evaluation of alternatives that do not Act, that include prescribing (AEA) of 1954, as amended. If fully comply with the LTR criteria. For decommissioning criteria for the tanks NYSERDA pursues either full or partial example, the Commission would and other facilities in which the HLW license termination of the NRC license, consider an allowing higher solidified under the project was stored, NRC will need to conduct an limits for doses-on a ailure of the facilities used in the solidification of environmental review to determine if an institutional control if it can be the waste, and any material and EIS is necessary to support license rigorousl' demonstrated that protection hardware used in connection with the termination. of the public health and safety for future WVDP. It should also be noted that DOE After public review of the draft EIS, generations could be reasonably assured is not an NRC licensee and DOE's the WVDP convened the West Valley through more robust engineered barriers decommissioning activities for the Citizen Task Force (CTF), in early 1997, and/or increased long-term monitoring WVDP at the West Valley site are to obtain stakeholder input on the EIS. and maintenance. The Commission is conducted under the WVDP Act and not The CTF recommendations for the prepared to provide to assure the Atomic Energy Act (AEA). preferred alternative in the EIS were cleanup to the maximum extent The WVDP is currently removing completed in July 1998. In the latter half technically and economically feasible.

HLW from underground tanks at the of 1997 (during the period that the CTF It should be noted that the subpart E site, vitrifying it, and storing it onsite for was working on its recommendations), of 10 CFR part 20 (LTR) does contain eventual offsite disposal in a Federal NRC's LTR was published (62 FR 39058; provisions for alternate criteria and repository. The vitrification operations July 21, 1997). subpart N of 10 CFR part 20 contains are nearing completion. In addition to The Commission published a draft provisions for potential ,4 the vitrified HLW, the WVDP operations policy statement on decommissioning with both alternatives based on a site have also produced LLW and criteria for the WVDP at the West Valley specific analysis which demonstrates transuranic waste which, under the Act, site, for public comment, and a notice that public health and safety will be must be disposed of in accordance with of a public meeting in the Federal adequately protected with reasonable applicable licensing requirements. Register on December 3, 1999 (64 FR assurance. If the NRC license cannot be Besides the HLW at the site, the spent 67952).3 The public meeting, to solicit terminated in a manner which provides fuel reprocessing and waste disposal public comment on the draft, was held reasonable assurance of adequate operations resulted in a full range of protection of the public health and buried radioactive wastes and structural 2 66 FR 16447 (March 26, 2001). safety, then the appropriate Commission and environmental contamination at the 3 Before issuing the draft policy statement for action may be to require a long term or site. comment, the NRC staff proposed decommissioning criteria for West Valley to the Commission in a even a perpetual license for an In 1989, DOE and NYSERDA began to appropriate portion of the site until, if Commission Paper entitled "Decommissioning develop a joint Environmental Impact Criteria for West Valley," dated October 30, 1998 and when possible, an acceptable Statement (EIS) for project completion (SECY-98-251). On January 12, 1999, the alternative is developed to permit actual and site closure, and to evaluate waste Commission held a public meeting, on SECY-98 license termination.

5 disposal and decommissioning 251, to obtain input from interested parties. Based on the results from this meeting, the Commission alternatives. Because the WVDP Act issued a Staff Requirements Memorandum (SRM), ý -- __ to NRC regulations can be issued to authorizes NRC to prescribe on January 26, 1999, requesting additional NRC licensees if the Commission determines that decommissioning criteria for the project, information on the staff's proposed the is authorized by law and would not NRC and DOE agreed on NRC's decommissioning criteria for West Valley. In result in undue hazard to life or property.

response to the January 26, 1999, SRM, the staff NYSERDA is the licensee for the West Valley site participation as a cooperating agency on provided SECY-99-057, to the Commission, and DOE is acting as a surrogate for NYSERDA until the EIS, with DOE and NYSERDA, to aid entitled "Supplement to SECY-98-251, the NYSERDA license is reinstated at the end of the

'Decommissioning Criteria for West Valley.'" Based WVDP.

' The State of New York licenses a low-level on the contents of SECY-98-251, SECY-99-057, SIf a long term or perpetual license is necessary waste disposal area at the West Valley site. Unless and written and oral comments from interested for any portion of the site, it is the Commission's otherwise indicated, the terms "West Valley site" parties, the Commission issued an SRM on June 3, intent that that portion of the site will be or "site" used in this Policy Statement refers to the 1999, detailing its decisions on the decontaminated in the interim to the extent NRC-licensed portions of the site. decommissioning criteria for West Valley. technically and/or economically feasible, in

Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5005 Based on the public comments separate dose standards for various (E) Comments,

. r -rescribing1Ite

'-%`ctional 7

received, the Commission has revisited sections of the NRC-licensed site.

de-ifimissioning criteria;

- the issue of "incidental waste" at West III. Overview of Public Comments (F) Comments on the use of incidental Valley. The Commission has decided to waste criteria at West Valley; issue incidental waste criteria to clarify Twenty-eight organizations and individuals submitted written (G) Comments related to how the site the status of and classify any residual .

wastes present after cleaning of the comments on the draft policy statement. should be decommissioned Comments also were provided at the disposition, consideration oTffwbys high-level radioactive waste (HLW) tanks at West Valley. Previously, the public meeting held on January 5, 2000. for dose, and contaminant transport);

The commenters represented a variety (H) Comments on the wording of the NRC has provided advice to DOE draft policy statemen -- -_3 word concerning DOE's classification of of interests. Comments were received from Federal and State agencies, citizen "prescribe," paraphrasing th-eIF and certain waste as incidental waste for other statements on West Valley); and, clean-up of HLW storage tanks at both and environmental groups, a native American organization, and individuals. __ :r comments (implications of Hanford and Savannah River. As noted the policy statement regarding native above, NRC intends to apply the LTR The commenters offered over 200 specific comments and represented a Americans, transuranic waste issue)..

decommissioning criteria as the The comments received from the diversity of views. The commenters decommissioning goal for the entire public in writing during the comment NRC-licensed portion of the site. The addressed a wide range of issues concerning the decommissioning and period and verbally during the January Commission has decided that the most 5, 2000, public meeting have been recent advice provided to DOE for the closure of the WVDP and West Valley site. The reaction to the draft policy factored into the Commission's classification of incidental waste at decision-making on this final policy Savannah River, with some additional statement was generally supportive.

modifications, provides the appropriate However, viewpoints were expressed on statement.

criteria which should be applied to the LTR and LTR guidance and how A. Comments on the LTR West Valley. Specifically, the both should be applied at West Valley.

In addition, there were comments on The draft policy statement presented Commission is now providing the the NRC's LTR as the decommissioning following criteria for classification of NRC's process for prescribing decommissioning criteria and other criteria for the WVDP and the West the incidental waste (which will not be Valley site. Although there was general deemed to be HLW) at West Valley: issues specific to West Valley.

support for the use of the LTR as the (1) The waste should be processed (or IV. Summary of Public Comments and decommissioning criteria for both the should be further processed) to remove Responses to Comments WVDP and West Valley site, there were key radionuclides to the maximum The following sections A through I a number of comments on the LTR.

extent that is technically and represent major subject areas and Specifically:

economically practical; and describe the principal public comments A.1 Comment. A number of (2) The waste should be managed, so received on the draft policy statement commenters were concerned that the that safety requirements comparable a to (organized according to the major use of the LTR's restricted release the performance objectives in 10 CFR subject areas) and present NRC concept, which includes the use of part 61 subpart C, are satisfied. responses to those comments. institutional controls, to decommission (A) Commentz nn the LTR (restricted West Valley may not be appropriate Consistent with the overall approach because of the magnitude of the waste in applying the LTR to the WVDP and release; institut..........ols; as low as reasonably achievable (ALARA); currently on-site and the potential for to the entire NRC-licensed site following this waste to provide an unacceptable financial assurance: alternate criteria; conclusion of the WVDP, the resulting dose to members of the public if time line fL- u ulations);

calculated dose from the incidental on LTR guidance controls fail.

waste is to be integrated with all the (B) Comments (critical group, engineered barriers, cost/ A. 2 Response. The LTR criteria other calculated doses from the residual consider doses to members of the public radioactive material at the NRC-licensed benefit analysis);

(C) Comments on implementing the from the loss of institutional controls.

site to ensure that the LTR criteria are The loss of institutional controls will met. This is appropriate because the LTR (continued Federal or State onsite presence, perpetual license); need to be considered in the DOE/

Commission does not intend to establish NYSERDA EIS. 8 Absent an (D) Comments on NRC's process for prescribing the decommissioning from the LTR provision in 1W0CFRpiart addition, ifa long-term or perpetual license is 20, a site, or part thereof, that cannot determined to be appropriate, the NRC takes no criteria (when to prescribe the criteria; position on which entity should be the long-term use of the LTR "Generic Environmental meet the restricted release provisions of licensee as that decision, as well as decisions Impact Statement" (GEIS) to support the the LTR, must remain under an NRC regarding long term financial contributions, should use of the LTR at West Valley; NRC's license. The Commission will consider be made pursuant to negotiations involving DOE, New York, and possibly the U.S. Congress. Also, National Environmental Policy Act 8DOE has decided to descope the draft 1996 EIS under the WVDP Act, the NRC is only addressing (NEPA) obligation for prescribing the into two separate EISs. DOE will be the lead agency the public health and safety aspects of West Valley decommissioning criteria); on the EIS that will address WVDP facility decommissioning selected portions of the site. decontamination and management of waste Other potential issues between DOE and NYSERDA currently stored at the site. NRC expects to be kept concerning the West Valley Site are not within 7 Applying the LTR, the total annual dose to an average member of the critical group for the site, informed of progress as required under the DOE/

NRC's authority to resolve. NRC Memorandum of Understanding (MOU). DOE 6 The dose methodology used in 10 CFR part 61 including the resulting does from the incidental waste, should be less than or equal to 25 mrem/yr and NYSERDA will be the lead agencies on the EIS subpart C is different from that used in the newer that will address decommissioning. NRC expects to 10 CFR part 20 subpart E. However, the resulting TEDE. The Commission is not establishing a separate dose standard for the incidental waste such participate as an EIS cooperating agency. Hereafter, allowable doses are comparable and NRC expects this second EIS where NRC will be a cooperating DOE to use the newer methodology in 10 CFR part that the average member of the critical group potentially receive a dose of 25 mremlyr TEDE from agency will either be referred to as the 20 subpart E. Part 61 is based on International decommissioning EIS or the DOE/NYSERDA EIS, Commission on Radiological Protection Publication the rest of the NRC-licensed site and 25 mrem/yr TEDE from the incidental waste. unless otherwise noted.

2 (iCRP 2) and part 20 is based on ICRP 26.

5006 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices granting an _- to the LTR radioactivity at the site. Depending B. Comments on LTR guidance criteria if it determines the is upon the outcome of the EIS review, the A variety of comments were received authorized by law and wouldhbt result Commission may need to consider the in undue hazard to life or property. The on NRC's LTR guidance as it relates to need for environmental mitigation. West Valley. Since the time that NRC's Commission intends to involve the A. 7 Comment. Some commenters LTR became final in 1997, the NRC staff public in the processing of any were concerned about the possible request consistent with the has been developing guidance to

-* application of alternate criteria, as "public participation" provision in 10 support it. In September 2000, the NRC allowed under the LTR, to West Valley, released guidance for decommissioning, CFR 20.1405, and will involve the Environmental Protection Agency (EPA) or that the policy statement should at in the form of a standard review plan if the request involves least clearly identify the dose limit cap (SRP) ("NMSS Decommissioning criteria greater than the dose criteria of under alternate criteria. Standard Review Plan," NUREC-1727).

10 CFR 20.1402, 20.1403(b), or A. 8 Response. In addition to the B. I Comment. A number of 20.1403(d)(1)(i)(A). Such an unrestricted release limit of 25 mrem/yr commenters expressed concern with request will also require the approval of TEDE, the LTR also contains alternate how the critical group would be defined the Commission consistent with 10 CFR criteria for restricted release, which for dose assessment purposes.

20.1404(b). allows for a dose limit of up to 100 B. 2 Response. For the LTR, the A. 3 Comment. Some commenters mrem/yr TEDE, with restrictions in critical group means the group of also were concerned about the adequacy place, and caps the public dose limit at individuals reasonably expected to of the LTR's financial assurance 100 or 500 mrem/yr TEDE if the receive the greatest exposure to residual requirements for maintaining restrictions fail. Applying alternate radioactivity for any applicable set of institutional controls for restricted criteria to a specific site requires circumstances (10 CFR 20.1003). The release at West Valley, especially if the opportunities for public involvement, "Statement of Considerations" for the financial assurance relies on future coordination with the EPA, and direct LTR notes that the critical group would Government appropriations that are not approval of the Commission. The be the group of individuals reasonably guaranteed. alternate criteria in the LTR were expected to be the most highly exposed, A. 4 Response. In general, it is developed for difficult sites to minimize considering all reasonable potential assumed that when a Government future uses of the site, based on the need to consider exemptions to the agency certifies that it will seek prudently conservative exposure LTR, although exemptions also may be appropriations, to maintain institutional assumptions and parameter values controls for the purposes of protecting considered. Under appropriate circumstances and based on a site within modeling calculations. NRC's public health and safety, the SRP for decommissioning addresses two appropriations will be authorized. The specific analysis, the Commission generic critical group scenarios-the Commission believes that it is considers the application of alternate "resident farmer" and the "building reasonable to expect Federal and State criteria protective of public health and occupancy" scenarios. The SRP also agencies to meet their commitments to safety. Absent a detailed site-specific presents approaches for establishing obtain funding for institutional controls analysis, it is premature for the site-specific critical groups based on to provide for the protection of the Commission to make any judgments, at specific land use, site restrictions, and/

public health and safety. this time, on the acceptability or non or site-specific physical conditions.

A. 5 Comment. A number of acceptability of applying alternate DOE/NYSERDA derivation of the commenters were also concerned that criteria or to the WVDP or critical groups for West Valley will need the time line specified for dose any portion of the NRC-licensed site. In to be addressed in the EIS documents.

calculations in the LTR (1000 years) is any event, neither the alternate criteria In addition to NRC review and too short for difficult sites like West in the LTR nor ". will be comment, the EIS documents will be Valley. approved by theTLo-mmission without available for public review and A. 6 Response. In the development full prior public participation, comment.

of the LTR, the Commission considered involvement of the EPA, and a comments seeking a time period for B. 3 Comment. There were also Commission determination that there is dose analysis longer than 1000 years. several comments relating concerns that reasonable assurance that there would Section long-term stewardship costs and 2 F.7 in the LTR "Statement of not be undue hazard to life and

-'-'tions,"62 FR 39058 (July 21, impacts on special populations will not property.

mrj--.e Commission concluded that be properly factored into the cost/

A. 9 Comment. There were also benefit analysis, or that there should be for the types of facilities and source comments about the use of the ALARA better guidance provided on what terms considered, it was reasonable to process in the LTR at West Valley. Some should be considered in the cost/benefit use a 1000-year period. However, the believed that the ALARA process might analysis.

West Valley site presents some unique be used to justify dose limits higher B. 4 Response. DOE and NYSERDA challenges in that significant quantities than those allowed by the LTR. will determine the extent to which these of mobile, long-lived radionuclides are present on site. Because under NEPA an A. 10 Response. As stated issues are covered in the DOE/

evaluation of reasonably foreseeable previously, the LTR does allow for NYSERDA EIS. In addition, NRC will impacts is required, the Commission releases with different dose limits. review and comment on any cost/

believes that an analysis of impacts Generally, ALARA is used to reduce benefit analysis in the EIS. The cost/

beyond 1000 years should be provided doses below authorized limits. Under benefit analysis that DOE/NYSERDA in the DOE/NYSERDA EIS. Thus, the LTR, the ALARA process is not used develop for West Valley will need to be information will need to be evaluated to to permit doses above the 25 mrem/yr part of the EIS documents available for determine if peak doses might occur TEDE limit without restrictions, the 100 public review and comment.

after 1000 years and to define dose mrem/yr TEDE limit with restrictions, B. 5 Comment. Some commenters consequences and impacts on potential or the 500 mrem/yr TEDE cap if suggested that there should be criteria long-term management of residual restrictions fail. for what are allowable engineered

Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5007 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5007 barriers and whether or not they are C. Comments on Implementing the LTR D.1.3, and D.1.5 below, that NRC withhold assigning the LTR as the considered institutional controls. C. 1 Comment. There were some decommissioning criteria until NRC B. 6 Response. Because of the wide comments identifying who should be does a site-specific analysis of the range of residual radioactive the long-term steward of the site if long environmental effects of contamination encountered at term stewardship is required as part of decommissioning West Valley.

decommissioning sites licensed by NRC, site closure. Some commenters also D.1.1 Comment. The LTR GEIS the LTR and NRC's decommissioning provided suggestions on how site long (NUREG-1496) does not support the use guidance are not prescriptive as to the term stewardship should be maintained of the LTR at a complex site like West criteria for, or acceptability of, site at West Valley if it is needed (onsite Valley; therefore, a specific EIS for this specific institutional controls and staff, perpetual license). action needs to be completed by NRC to engineered barriers. The "Statement of C. 2 Response. NRC expects that finalize the criteria.

Considerations" for the LTR might be these site-specific issues will be covered EIS and D.1.2 Response. Although the LTR read to conclude that engineered in the DOE/NYSERDA GEIS did not specifically address the barriers are included within addressed in the preferred alternative.

The identification of a long-term decommissioning of a spent fuel institutional controls. However, neither reprocessing site, it did evaluate the term is defined. In the Commission's custodian is not an NRC responsibility but will be determined from decommissioning of a range of reference view, "engineered barriers" referred to facilities (e.g., fuel cycle facilities and in the "Statement of Considerations" for negotiations involving DOE and reactors). In promulgating the LTR, the the LTR are distinct and separate from NYSERDA and possibly the U.S.

Congress. From the NRC perspective, Commission stated in Section VI of the institutional controls. Used in the "Statement of Considerations" that it general sense, an engineered barrier both DOE and NYSERDA represent and either would will conduct an environmental review could be one of a broad range of barriers governmental entities custodian. to "determine if the generic analysis with varying degrees of durability, be acceptable as a long-term C. 3 Comment. One commenter encompasses the range of environmental robustness, and isolation capability. impacts at the particular site." The Thus, NRC guidance in Appendix I of requested consideration of how the LTR would be implemented on the Commission further stated that it "will the SRP on the LTR distinguishes conduct an independent environmental institutional controls from physical decommissioned portions of the site if of the site that could review for each site-specific controls and engineered barriers. there were areas not meet the LTR. decommissioning decision where land Institutional controls are used to limit use restrictions or institutional controls intruder access to, and/or use of, the site C. 4 Response. Although the LTR are relied upon by the licensee or where to ensure that the exposure from the does not specifically address differing alternative criteria are proposed" as it residual radioactivity does not exceed release standards on a single site, NRC recognizes that the approach to recognized that the environmental the established criteria. Institutional impacts for these cases cannot be controls include administrative decommissioning at West Valley may include portions of the site being analyzed on a generic basis. Thus, the mechanisms (e.g., land use restrictions) environmental impacts from the and may include, but not be limited to, released for unrestricted use, and portions of the site being released for application of the criteria to the WVDP physical controls (e.g., signs, markers, will need to be evaluated for the various landscaping, and fences) to control restricted use, as well as portions of the approaches being considered access to the site and minimize site remaining under license, because of alternative a failure to meet the LTR. In the in the process before NRC decides disturbances to engineered barriers. whether to accept the preferred There must be sufficient financial Commission's view, the LTR is alternative for meeting the criteria assurance to ensure adequate control sufficiently flexible to allow for such In particular, the permitted by the LTR. NRC expects to and maintenance of the site and circumstances.

Commission believes that for those be able to rely on the DOE/NYSERDA institutional controls must be legally EIS for this purpose. NRC does not enforceable and the entity charged with portions of the site that are unable to demonstrate compliance with the LTR's anticipate the need to prepare its own their enforcement must have the duplicative EIS as NRC can consider the capability, authority, and willingness to restricted release requirements, the dose environmental impacts described in the enforce the controls. Generally, limits should be viewed as goals in DOE/NYSERDA EIS in approving the engineered barriers are passive man order to ensure that cleanup continues to the maximum extent that is particular decommissioning criteria for made structures or devices intended to the WVDP under the LTR. As an EIS improve a facility's ability to meet a technically and economically feasible.

The Commission also believes that after cooperative agency, NRC may adopt all site's performance objectives. or parts of the lead EIS agency's NEPA Institutional controls are designed to cleanup to the maximum extent Under this arrangement, if restrict access, whereas engineered technically and economically feasible is documents.

accomplished, alternatives to release NRC is satisfied with the final DOE/

barriers are usually designed to inhibit under the LTR criteria may need to be NYSERDA EIS, then NRC will adopt it water from contacting waste, limit to fulfill its NEPA responsibilities under releases, or mitigate doses contemplated. Specific examples of alternatives are a perpetual license the W`VDP Act. If NRC is not satisfied The isolation capability, duranility, and these with the final DOE/NYSERDA EIS, then robustness of a specific barrier will need for some parts of the site or it will adopt as much of it as possible to be evaluated in the DOE/NYSERDA from the LTR. The NRC expect-sthat these issues will be fully addressed in and modify or supplement it as EIS. The ability of a barrier to inhibit necessary. In such a situation, NRC access of the inadvertent intruder is a the DOE/NYSERDA EIS.

would publish its own draft EIS separate issue from whether a barrier is D. Comments on NRC's Processfor document for public review and an institutional control. The dose Prescribingthe Decommissioning comment before finalizing it. Once analyses for a site with engineered Criteria finalized, NRC's West Valley NEPA barriers will need to consider the responsibilities would be fulfilled under reasonableness of a breach by an D.1. DOE recommended, for the reasons described in comments D.1.1, the WVDP Act.

inadvertent intruder.

LIE 5008 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices The WVDP Act does not address D.1.6 Response. The Commission prescribe the dose limits in EPA's license termination for the site. The does not believe that prescribing the decommissioning guidance to West actual license termination for the site, if LTR criteria for the WVDP at the West Valley, because they are more protective and when pursued, will be conducted Valley site as the applicable and could be applied to the site after under the Atomic Energy Act (AEA) of decommissioning goal for the entire NRC regulatory authority ceases.

1954, as amended. At the time of NRC NRC-licensed site will limit DOE from Likewise, a comment was made that the license termination under the AEA (if developing acceptable closure options decommissioning criteria issue between license termination is pursued), NRC for the NDA or any other part of the NRC and EPA should be resolved before will need to conduct an environmental NRC-licensed site. Prescribing the LTR the criteria are prescribed.

review to determine if an EIS is now is warranted because NYSERDA, as E.4 Response. The Commission necessary to support license a licensee of the Commission, is subject believes that the LTR dose limits plus termination. to the LTR after NYSERDA's NRC ALARA requirements provide D.1.3 Comment. The NRC's license is reactivated at the conclusion protection comparable to dose limits prescription of decommissioning of the WVDP. It follows that DOE preferred by EPA in its guidance criteria is not being coordinated with should also be subject to the LTR as it documents. The Commission notes that the current NEPA process as suggested is the surrogate for NYSERDA in the LTR was promulgated by the by the DOE/NRC Memorandum of decommissioning facilities used for the Commission in 1997 pursuant to an Understanding (MOU) on West Valley. project. Therefore, it is appropriate to Administrative Procedure Act D.1.4 Response. The process prescribe the LTR now for the WVDP, rulemaking accompanied by a generic described in the DOE/NRC MOU with the site-specific decommissioning EIS and voluminous regulatory analysis, (Section B (4)), for consulting on a site issues resolved through the process including consideration of numerous specific analysis of decommissioning described in Response D.1.4 above. public comments. EPA's guidance requirements was developed to allow Applying the LTR to the WVDP will documents have gone through no such DOE and NRC to evaluate a range of provide an opportunity to DOE, as public process. The Commission approaches to specifically address the would be given to any licensee, to believes that decommissioning the site decommissioning of the WVDP. consider a range of approaches to to the LTR criteria ensures that public Thereafter, NRC was to prescribe the achieve acceptable decommissioning, health and safety and the environment decommissioning criteria. At the time consistent with public dose limits. If will be protected. Although there is a the MOU was signed, no comprehensive parts of the NRC-licensed site cannot lack of agreement between NRC's rule general criteria existed for meet the LTR, the Commission will and EPA's guidance documents on the decommissioning NRC-licensed sites. consider alternatives to the criteria in appropriate upper bounds on Decommissioning criteria were the LTR if it can be demonstrated that decommissioning criteria, the NRC determined on a case-by-case basis. public health and safety will be practice of applying ALARA principles However, through the rulemaking protected. The NRC expects that these to NRC dose limits will most likely process completed in 1997, which issues will be fully addressed in the result in an NRC approved promulgated the LTR, there was an DOE/NYSERDA EIS, decommissioned site that satisfies the evaluation of various regulatory EPA criteria as well. In fact, EPA has approaches for decommissioning NRC E. Comments on JurisdictionalAspects indicated that it believes that the 25 licensed sites and the selection of a of Prescribingthe Decommissioning mrem/yr TEDE cleanup dose limit in the range of regulatory approaches with Criteria LTR will be "protective at this site." See criteria, in the final rule. E.1 Comment. Many commenters Letter from Paul Giardina, EPA to John Except as provided in 10 CFR suggested that, because the State Greeves, NRC (July 23, 2001). Because 20.1401, the LTR applies to all NRC's licensed Disposal Area (SDA) is the LTR requirements do ensure licensed sites. The Commission immediately adjacent to the WVDP and adequate protection of the public health recognized, as noted in the "Statement part of the West Valley site, the and the environment, and, as indicated of Considerations" for the LTR, that allowable dose from the closure and/or in the preceding paragraph, EPA agrees there would be sites with complex decommissioning of it should be with this conclusion for West Valley, decommissioning issues that would be considered comprehensively with the the Commission believes that it is not resolved by site-specific environmental allowable dose from the NRC regulated necessary to wait for a formal resolution reviews which considered various part of the site. of the differences between NRC and alternative methods for E.2 Response. NRC's authority only EPA on generic decommissioning decommissioning and application of the extends to the NRC-licensed portion of standards before proceeding with LTR. In the Commission's view, the use the site. It also should be noted that the prescribing site-specific of the two-step prescribing process LTR recognizes that people can be decommissioning criteria for the WVDP.

first, the decision to use the LTR, and exposed to up to four sources of As stated previously, EPA will be second, to use the DOE/NYSERDA EIS, radiation and still meet the nationally involved in any proposal to use to consider the impacts of the different and internationally accepted public alternate criteria in the LTR or approaches for decommissioning, before dose limit of 100 mrem/yr TEDE in part from 10 CFR part 20, if so deciding whether to accept the 20. In considering the environmental requested_

particular approach that DOE intends to .' the entire site, the DOE/

use to meet the LTR-is consistent with -NYSERDA EIS will need to consider the F. Comments on the Use of incidental the intent of the MOU that various number of sources to which the critical Waste Criteriaat West Valley Site approaches be analyzed in developing group may be exposed. However, NRC F.1 Comment. Many comments were the WVDP decommissioning criteria. continues to dialogue with State received concerning the use of the D.1.5 Comment. Finalizing the LTR representatives to exchange information incidental waste criteria at West Valley.

now as the decommissioning criteria for on issues of mutual interest regarding Most commenters did not want NRC to the WVDP at the West Valley site limits potential sources of public exposure. allow for the "reclassification" of any the options for closure of the NRC E.3 Comment. A few comments were HLW at this site to waste incidental to licensed Disposal Area (NDA). made indicating that NRC ought to reprocessing. If it were allowed, it

Federal Rep-ister/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5009 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5009 should be done in a way that provides incidental waste determination need not site activities. In this regard, the impacts for public participation. One commenter be revisited. of identifying waste as incidental to In light of these considerations, the reprocessing and not HLW should be agreed that it will have to be done, but Commission is now providing the considered in the DOE's environmental that the Commission should prescribe following criteria for incidental waste reviews.

the criteria that are necessary and appropriate for the incidental waste determinations. G. Comments Related to How the Site determination. One other commenter (1) The waste should be processed (or Should Be Decommissioned believes that use of DOE's Order 435.1 should be further processed) to remove key radionuclides to the maximum G.1 Comment. There were many is the appropriate process for comments and suggestions that all the reclassifying residual HLW as extent that is technically and economically practical; and waste at this site should be perhaps incidental. temporarily stabilized, or packaged and (2) The waste should be managed so F.2 Response. Section 6 (4) of the perhaps temporarily stored, but that safety requirements comparable to WVDP Act defines HLW as including ultimately removed from the site. There are the performance objectives in 10 CFR both (1) liquid wastes which part 61 subpart C, are satisfied. were also some comments on what are produced directly in reprocessing, dry The resulting calculated dose from the the important pathways for, and man solid material derived from such liquid incidental waste is to be integrated with made barriers to control, contaminant waste and (2) such other material as the all the other calculated doses from the transport at the site.

Commission designates as HLW for the remaining material at the entire NRC G.2 Response. The Commission purposes of protecting the public health licensed site to ensure that the LTR appreciates the public's identification and safety. Since 1969, the Commission criteria are met. This is appropriate of, and input on, these issues. The has recognized the concept of waste because the Commission does not decisions related to alternative incidental to reprocessing, concluding intend to establish separate dose approaches to decommissioning the that certain material that otherwise standards for various sections of the West Valley site will be evaluated in the would be classified as HLW need not be NRC-licensed site. DOE/NYSERDA EIS, and reviewed by disposed of as HLW and sent to a Previously the NRC has provided NRC for their ability to protect public geologic repository because the residual advice to DOE concerning DOE's health and safety and the environment.

radioactive contamination after classification of certain waste as The EIS will also be available for public decommissioning is sufficiently low as incidental waste for clean-up of HLW comment before being finalized.

not to represent a hazard to the public storage tanks at both Hanford and H. Comments on the Wording of the health and safety. Consequently, Savannah River. As noted above, NRC Draft Policy Statement incidental waste is not considered HLW. intends to apply the LTR criteria for the See, Proposed Rule-Siting of H.1 Comment. Several comments WVDP at the West Valley site, reflecting were made about the last part of a Commercial Fuel Reprocessing Plants the fact that the applicable and Related Waste Management sentence in the Draft Policy Statement decommissioning goal for the entire under the section entitled

' Facilities (34 FR 8712; June 3, 1969), NRC-licensed site is in compliance with Final Rule-Siting of Commercial Fuel "Decommissioning Criteria for the the requirements of the LTR. The Reprocessing Plants and Related Waste WVDP." It states that "* *

• following Commission has decided that the most the completion of DOE/NYSERDA's EIS Management Facilities (35 FR 17530; recent advice provided to DOE for the November 14, 1970), Advance Notice of classification of incidental waste at the and selection of its preferred alternative, Proposed Rule-making to Define HLW the NRC will verify that the specific Savannah River site, 9 with some criteria identified by DOE is within the (52 FR 5992, 5993; February 27, 1987), additional modifications, as the Proposed Rule-Disposal of Radioactive appropriate criteria that should be LTR and will prescribe the use of Waste (53 FR 17709; May 18, 1988), specific criteria for the WVDP." Many applicable to West Valley. These criteria Final Rule-Disposal of Radioactive suggested that prescribing the use of the are risk-informed and performance Waste (54 FR 22578; May 25, 1989), and based in that the criteria allow DOE the specific criteria after the selection of the Denial of Petition for Rulemaking: States flexibility to develop innovative preferred alternative in the EIS is of Washington and Oregon, (58 FR confusing, not what is meant by the approaches to meeting the performance WVDP Act, and would allow adjustment 12342; March 3, 1993). objectives in part 61. In effect, DOE The Commission believes that of the criteria after the EIS is completed.

should undertake cleanup to the H.2 Response. As addressed above practical considerations mandate early maximum extent that is technically and resolution of the criteria that should in response to the various comments, economically practical and should the Commission's intent is to prescribe guide the incidental waste achieve performance objectives determination. Vitrification of the high the generally applicable requirements of consistent with those we demand for the the LTR now, before the completion of level wastes at West Valley is nearing disposal of low-level waste. If satisfied, completion, at which point DOE intends these criteria should serve to provide the site-specific EIS. After completion of to close down the vitrification facility. the site-specific DOE/NYSERDA EIS, protection of the public health and NRC will evaluate the compliance status To delay providing the Commission's safety and the environment and the view for incidental waste could of the preferred alternative with respect resulting calculated dose would be to the LTR, as described in the adversely impact the DOE, as it may integrated with the resulting calculated prove extraordinarily expensive after Commission's final policy statement.

doses for all other remaining material at This is a two-step process. The first step the vitrification facility is shut down to the NRC-licensed site. It is the provide vitrification capacity for any is prescribing the LTR, a set of criteria Commission's expectation that it will that allows for unrestricted releases, additional waste that must be shipped apply this criteria at the WVDP at the elsewhere for disposal. Indeed, in light restricted releases, and alternative site following the completion of DOE's releases, that applies to all NRC of the fact that the site will ultimately revert to control by NYSERDA under an licensees. Prescribing decommissioning 9See NRC Staff Requirements Memorandum NRC license, both NYSERDA and NRC "SECY-99-0284--Classification of Savannah River criteria now for the WVDP allows DOE have an interest in ensuring that the Residual Tank Waste as Incidental," May 30, 2000. to develop alternative approaches for

5010 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices meeting those criteria and consider their 1.2 Response. NRC staff has V. Final Policy Statement impacts in its site-specific EIS. examined the draft policy on The second step is for NRC to Statement of Policy decommissioning criteria for the WVDP evaluate on a site-specific basis the and has not identified any implications Decommissioning Criteria for the West approach for meeting the LTR. This will in relation to the Commission's Valley Demonstration Project (WVDP) be done after the DOE/NYSERDA EIS is guidance regarding Native Americans.

completed and NRC adopts it or Under the authority of the WVDP Act, The Commission has directed the NRC the Commission is prescribing NRC's otherwise produces its own NEPA staff to implement the spirit and letter evaluation of the site-specific criteria License Termination Rule (LTR) (10 of President Clinton's April 29, 1994, CFR part 20, subpart E) as the developed in the DOE/NYSERDA EIS.

NRC will be evaluating DOE's and Executive Memorandum to ensure that decommissioning criteria for the WVDP, NYSERDA's preferred alternative for the rights of sovereign Tribal reflecting the fact that the applicable meeting the LTR and other alternatives governments are fully respected and to decommissioning goal for the entire presented in the DOE/NYSERDA EIS. operate within a government-to NRC-licensed site is in compliance with government relationship with Federally the requirements of the LTR. The This process is in accordance with the "Statement of Considerations" for the recognized Native American Tribes. In criteria of the LTR shall apply to the addition, the staff has been directed to decommissioning of: (1) The High Level LTR, which describes the relationship address Native American issues on a Waste (HLW) tanks and other facilities between the GEIS for the LTR and site specific decommissioning actions. A case-by-case basis, operating with Tribal in which HLW, solidified under the Governments on a government-to project, was stored; (2) the facilities site-specific EIS is prepared in cases where the range of environmental government basis. In response to the used in the solidification of the waste; impacts of the alternatives at a specific interest expressed by the Seneca Nation and (3) any material and hardware used site may not be within those considered of Indians in NRC activities at WVDP, in connection with the WVDP, Also in the GEIS for the LTR. This is similar under authority of the WVDP Act, the the NRC staff has added the Seneca Commission is issuing criteria for the to the approach that NYSERDA, as an Nation to its service list which will NRC licensee, would need to meet if the classification of reprocessing wastes that provide the Seneca Nation with copies will likely remain in tanks at the site license were not being held in abeyance. of documents and meeting notices after the HLW is vitrified, subsequently The Commission is satisfied that this related to NRC's activities at West referred to as "incidental waste."

approach is within the intent of the Valley that the NRC may publically The resulting calculated dose from the WVDP Act for the prescription of release. The NRC staff will address WVDP at the West Valley site is to be decommissioning requirements by NRC. issues raised by the Seneca Nation of integrated with all other calculated The WVDP Act does not address Indians in accordance with the doses to the average member of the license termination for the site. The Commission's guidance. critical group from the remaining actual license termination for the site, if material at the entire NRC-licensed site and when possible, will be conducted 1.3 Comment. One commenter claims that NRC is required by law to to determine whether the LTR criteria under the AEA, as amended. At the time are met. This is appropriate because the of NRC license termination under the define "transuranic waste" for West Valley and determine the disposition of Commission does not intend to establish AEA (if license termination is pursued), separate dose standards for various NRC will need to conduct an that waste.

sections of the NRC-licensed site. The environmental review to determine if an 1.4 Response. Section 6(5) of the LTR does not apply a single public dose EIS is necessary to support actual WVDP Act defines transuranic waste for criterion. Rather, it provides for a range license termination. The language from the WVDP in terms of radioisotopes and of criteria. Briefly stated, for the draft policy statement was changed the lower limit of concentration of those unrestricted release, the LTR specifies a in the final policy statement to reflect isotopes. It also states that NRC has the dose criterion of 25 mrem/yr total the process described above. authority to prescribe a different effective dose equivalent (TEDE) to the H.3 Comment. The policy statement concentration limit to protect public average member of the critical group should not paraphrase the LTR and health and safety. NRC's position on plus as low as reasonably achievable others' statements on West Valley. this issue is detailed in a letter from M. (ALARA) considerations (10 CFR H.4 Response. The Commission was Knapp, NRC, to W. Bixby, DOE, dated 20.1402). For restricted release, the LTR attempting to provide context to the specifies an individual dose criterion of August 18, 1987. This letter states that, draft policy statement by paraphrasing 25 mrem/year TEDE plus ALARA the LTR or others' statements on West to demonstrate protection of public health and safety, the transuranic considerations using legally enforceable Valley. To avoid confusion or institutional controls established after a misinterpretation in the Final Policy concentration of project wastes acceptable for on-site disposal will be public participatory process (10 CFR Statement, it will contain a disclaimer 20.1403). Even if institutional controls to the effect that notwithstanding any such that, by analysis, safety requirements comparable to the fail, individual doses should not exceed paraphrasing of the LTR in the Policy 100 mrem/yr TEDE . If it is Statement, the language of the LTR itself performance objectives in 10 CFR part demonstrated that the 100 mrem/yr is controlling in determining how it is 61 subpart C are satisfied. The resulting TEDE criterion in the event of failure of to be applied at West Valley. The calculated dose from the transuranic institutional controls is technically not paraphrasing of others' statements will waste is to be integrated with all the achievable or prohibitively expensive, be avoided. other calculated doses from the the individual dose criterion in the remaining material at the NRC-licensed event of failure of institutional controls L Other Comments site to ensure that the LTR criteria are may be as high as 500 mrem/yr TEDE.

1.1 Comment. What are the met, As with incidental waste, the However, in circumstances where implications of the policy statement Commission is not establishing a restricted release is required, if the 100 regarding NRC's policies regarding separate dose standard that applies mrem/yr TEDE criterion is exceeded, Native Americans. solely to the transuranic waste. and/or the use of alternate criteria has

Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices 5011 been determined, the area would be Impact Statement (EIS) 1 and selection of the site covered by the WVDP Act, it rechecked by a responsible government of the preferred alternative, NRC will is NRC's intent to authorize that any

'--- entity no less frequently than every 5 verify that the approach proposed by I or alternate criteria years and resources would have to be DOE is appropriate. The WVDP Act autfloied for DOE to meet the set aside to provide for any necessary does not address license termination of provisions of the WVDP Act will also control and maintenance of the the NRC license for the site, or portions apply to NYSERDA at the time of site institutional controls. Finally, the LTR thereof, which will be conducted (if license termination, if license permits alternate individual dose license termination is possible and termination is possible. The NRC site criteria of up to 100 mrem/yr TEDE plus pursued) under the Atomic Energy Act license termination is not addressed in ALARA considerations for restricted (AEA) of 1954, as amended. If full or the WVDP Act. Therefore the NRC site release, with institutional controls partial license termination of the NRC license termination is subject to the established after a public participatory license is pursued, at that time NRC will provisions of the Atomic Energy Act of process (10 CFR 20.1404). The need to conduct an environmental 1954 as amended.

Commission itself must approve use of review to determine if an EIS is necessary to support license Use of Incidental Waste Criteria at West the alternative criteria, after Valley coordination with the U.S. termination.

Environmental Protection Agency (EPA) Decommissioning Criteria for the NRC Section 6 (4) of the WVDP Act defines and after consideration of the NRC HLW as including both (1) liquid wastes Licensed Disposal Area (NDA) and which are produced directly in staff's recommendations and all public State-Licensed Disposal Area (SDA) comments.10 reprocessing, dry solid material derived NRC will apply the criteria in the LTR from such liquid waste and (2) such The Commission also recognizes that to the NDA within the West Valley site, other material as the Commission decommissioning of the West Valley site because the NDA is under NRC designates as HLW for the purposes of will present unique challenges, which jurisdiction. However, the NDA presents protecting the public health and safety.

may require

• _ . As a some unique challenges in that some of The Commission believes that practical result, the final end-state may involve a this material contains significant considerations mandate early resolution long-term or even a perpetual license or quantities of mobile, long-lived of the criteria that will guide the other for some radionuclides'which could potentially classification of incidental waste. The parts of the site where clean up to the remain in this facility. It is recognized vitrification of the wastes at West Valley LTR requirements are prohibitively that because of the nature of is nearing completion, at which point expensive or technically impractical. It radioactivity at West Valley, reasonably DOE intends to close down the is important that all parts of the site be foreseeable impacts might occur after vitrification facility. To delay defining decommissioned to the extent 1000 years, under certain scenarios. classification criteria for incidental technically and economically feasible. Under NEPA, an evaluation of the waste -could adversely impact the DOE

. Therefore, in addition, the Commission reasonably foreseeable impacts is as it may prove extraordinarily expects decontamination to the required. Therefore, the Commission expensive after the vitrification facility maximum extent technically and/or believes that an analysis of impacts is shut down to provide vitrification economically feasible for any portion of beyond 1000 years should be provided capacity for any additional waste that the site remaining under a long term or in the DOE/NYSERDA EIS which will must be shipped elsewhere for disposal.

perpetual license or for which an be subject to public comment. Indeed, in light of the fact that the site

, _ Lfrom the LTR is sought. In NRC does not have regulatory will ultimately revert to control by sum, tfheCommission believes that for authority to apply the LTR criteria to the NYSERDA under an NRC license, both those portions of the site that are unable SDA adjacent to the WVDP site NYSERDA and NRC have an interest in to demonstrate compliance with the boundary, because the SDA is regulated ensuring that the incidental waste LTR's restricted release requirements, by the State of New York. However, determination need not be revisited.

the dose limits should be viewed as NRC recognizes that a cooperative In light of these considerations, the goals, in order to ensure that cleanup approach with the State to the extent Commission is now providing the continues to the maximum extent that is practical should be utilized to apply the following criteria that should be applied technically and economically feasible. If LTR criteria in a coordinated manner to to incidental waste determinations.

complying with the LTR's restricted the NRC-licensed site and the SDA. (1) The waste should be processed (or release requirements is technically Decommissioning Criteria for License should be further processed) to remove impractical or prohibitively expensive, CSF-1 (NRC Site License) key radionuclides to the maximum then an Lfrom the LTR may be extent that is technically and appropriate, provided that protection of The criteria in the LTR will also apply to the termination of NYSERDA's NRC economically practical; and the public and the environment can be (2) The waste should be managed so maintained. license on the West Valley site after that that safety requirements comparable to license is reactivated. For those portions The Commission's application of the the performance objectives in 10 CFR LTR to the WVDP is a two-step process: 11DOE has decided to descope the draft 1996 EIS part 61 subpart C, are satisfied.12 (1) NRC is now prescribing the into two separate EISs. DOE will be the lead agency Consistent with the overall approach application of the LTR; and (2) after the on the EIS that will address WVDP facility in applying the LTR to the WVDP and decontamination and management of waste to the entire NRC-licensed site following completion of the site-specific currently stored at the site. NRC expects to be kept Department of Energy (DOE)/New York informed of progress as required under the DOE/ 2 State Energy Research and Development NRC Memorandum of Understanding (MOU). DOE 1 The dose methodology used in 10 CFR part 61 and NYSERDA will be the lead agencies on the EIS subpart C is different from that used in the newer Authority (NYSERDA) Environmental 10 CFR part 20 subpart E. However, the resulting that will address decommissioning. NRC expects to participate as an EIS cooperating agency. allowable doses are comparable and NRC expects 10The material set out in the text is a brief Hereinafter, this second EIS where NRC will be a DOE to use the newer methodology in 10 CFR part summary of the LTR. Notwithstanding the words cooperating agency will either be referred to as the 20 subpart E. part 61 is based on International used in the text, the language of the LTR governs decommissioning EIS or the DOE/NYSERDA EIS. Commission on Radiological Protection Publication this matter. unless otherwise noted. 2 [ICRP 2] and part 20 is based on ICRP 26.

5012 Federal Register/Vol. 67, No. 22/Friday, February 1, 2002/Notices conclusion of the WVDP, the resulting For NEPA purposes, DOE is SECY-98-251; (4) SECY-99-057, calculated dose from the incidental considered the lead Federal agency. "Supplement to SECY-98-251, waste is to be integrated A _.... NRC, in view of its responsibilities 'Decommissioning Criteria for West other calculated doses from material under the WVDP Act, is considered a Valley;'" (5) the Commission's vote remaining material at the entire NRC cooperating agency for this EIS and is sheets on SECY-98-251 and SECY-99 licensed site. participating in the development of the 057; (6) the Commission's SRM of June Previous Burials Authorized Under 10 DOE/NYSERDA EIS. NRC does not 3, 1999, on SECY-98-251 and SECY CFR Part 20 anticipate the need to prepare its own 99-057; (7) the draft policy statement duplicative EIS, since it can consider issued December 3, 1999; (8) the The "Statement of Considerations" for the environmental impacts described in transcript of the public meeting held the LTR, Section C.3, Other Exemptions the DOE/NYSERDA EIS in approving January 5, 2000; and (9) the public (62 FR 39074) provided that in regard to the particular decommissioning criteria comments on the draft policy statement past burials the Commission " *

• for the WVDP under the LTR. Under can be obtained electronically on NRC's would continue to require an analysis of this arrangement, if NRC is satisfied home page at the Commission's site-specific overall impacts and costs in with the DOE/NYSERDA EIS, this EIS Activities link (http://www.nrc.govl deciding whether or not exhumation of will fulfill the NEPA responsibilities for NRC/COMMISSION/activities.htmJ).

previous buried waste is necessary for NRC under the WVDP Act. If NRC is not satisfied with the final DOE/NYSERDA Dated at Rockville, Maryland, this 25th day specific sites. In addition, the general of January, 2002.

exemption provisions of 10 CFR part 20 EIS, then NRC will adopt as much of it as possible and modify or supplement it For the Nuclear Regulatory Commission.

are available to consider unique past burials on a case-by-case basis." The as necessary. In such a situation, NRC Annette Vietti-Cook, NDA contains significant amounts of would publish its own draft EIS Secretary of the Commission.

buried radioactive material that was document for public review and [FR Doc. 02-2373 Filed 1-31-02; 8:45 am]

previously authorized under older comment before finalizing it. Once BILLING C, provisions of part 20. This material will finalized, NRC's West Valley NEPA require appropriate evaluation as part of responsibilities would be fulfilled under site license termination. the WVDP Act. NUCLEAD 0=`_ 11 The WVDP Act does not address COMM ISaTuw---

Environmental Analysis license termination for the site. License [Docket Nos. 50-250 and 50-251]

An EIS is not needed at this step of termination of the NRC license for the the process of prescribing the LTR site, or portions thereof, is conducted (if Florida Power and Light Company because the Commission is not license termination is possible) under Turkey Point Plant, Units 3 and 4 establishing a new requirement for the the AEA. If NYSERDA pursues either Notice of Availability of the Final site. This site is licensed to NYSERDA full or partial license termination of the Supplement 5 to the Generic and, therefore, is already subject to the NRC license, at that time NRC will need Environmental Impact Statement LTR by operation of the Commission's to conduct an environmental review to Regarding License Renewal for the regulations. DOE in essence is acting as determine if an EIS is necessary to Turkey Point Plant, Units 3 and 4 support license termination.

a surrogate for NYSERDA. The Notice is hereby given that the U. S.

environmental impacts of applying the Availability of Documents Nuclear Regulatory Commission (NRC)

LTR to NRC licensees were evaluated in NRC's final policy statement on has published a final plant, the Generic Environmental Impact decommissioning criteria for West Supplement 5 to the Generic Statement (GEIS), NUREG-1496, that Valley is also available at NRC's Public Environmental Impact Statement (GEIS),

supported the LTR. In promulgating the Electronic Reading Room link (http:// NUREG-1437, regarding the renewal of LTR, the Commission stated, in Section www.nrc.gov/NRC/ADAMS/ index.htm]) operating licenses DPR-31 and DPR-41 VI of the "Statement for Considerations" on NRC's home page (http:/! for the Turkey Point Plant, Units 3 and that it will conduct an environmental www.nrc.gov). Copies of documents 4, for an additional 20 years of review to "determine if the generic cited in this section are available for operation. The Turkey Point Plant units analysis encompasses the range of inspection and/or reproduction for a fee are operated by Florida Power and Light environmental impacts at the particular in the NRC Public Document Room, Company (FPL). Turkey Point Plant is site." The Commission further stated 11555 Rockville Pike, Room O-1F21, located in Dade County, Florida.

that it "will conduct an independent Rockville, MD 20852. The NRC Public Possible alternatives to the. nroposed environmental review for each site Document Room is open from 7:45 a.m. action (license ren( ..-. _ de no specific decommissioning decision to 4:15 p.m., Monday through Friday, action and reasonable alternative where land use restrictions or except on Federal holidays. Reference methods of power generation.

institutional controls are relied upon by service and access to documents may In Section 9.3 of the report:

the licensee or where alternative criteria also be requested by telephone (301 are proposed" as it recognized that the The staff recommends that the Commission 415-4737 or 800-397-4209), between determine that the adverse environmental environmental impacts for these cases 8:30 a.m. and 4:15 p.m.; or by e-mail impacts of license renewal for Turkey Point cannot be analyzed on a generic basis. (PDR@nrc.gov); fax (301-415-3548); or a Units 3 and 4 are not so great that preserving The environmental impacts from the letter (NRC Public Document Room, the option of license renewal for energy application of the criteria will need to Mailstop O-1F13, Washington, DC planning decisionmakers would be be evaluated for the various alternative 20555-0001). In addition, copies of: (1) unreasonable. This recommendation is based approaches being considered in the SECY-98-251, "Decommissioning on (1) the analysis and findings in the process before NRC decides whether to Criteria for West Valley;" (2) the Generic Environmental Impact Statement for accept the preferred alternative for License Renewal of Nuclear Power Plants, transcript of the public meeting held NUREG-1437; (2) the ER [Environmental meeting the criteria permitted by the January 12, 1999; (3) the Commission's Report] submitted by FPL; (31 consultation LTR. NRC intends to rely on the DOE/ SRM of January 26, 1999, concerning with other Federal, State, and local agencies; NYSERDA EIS for this purpose. the January 12, 1999, public meeting on (4) the staffs own independent review; and