ML20034D497

Requests That Commission Consider & Deny Petition for Rulemaking from States of Wa & or Re Classification of Certain Radwastes at Hanford,Wa & Approve Transmittal of Encl Ltr to DOE on Classification of Hanford Tank Waste

ML20034D497
Person / Time
Issue date:	11/19/1992
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-92-391, NUDOCS 9211250212
Download: ML20034D497 (63)

Text

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POLICY ISSUE November 19, 1992 (Notation Vote)

SEcY-92-391 For:

The Commissioners

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From:

James M. Taylor i

Executive Director for Operations Sub.iect:

DENIAL OF PRM-60 PETITION FOR RULEMAKING FROM THE STATES OF WASHINGTON AND OREGON REGARDING CLASSIFICATION OF RADI0 ACTIVE WASTE AT HANFORD

Purpose:

To request that the Commission: (I) consider and deny the petition for rulemaking (Enclosure 1, Federal Register Notice, Denial of Petition, PRM-60-4) from the States of Washington and Oregon regarding classification of certain radioactive wastes at Hanford, Washington, and (2) approve the transmittal of the enclosed letter to the Department of Energy (Enclosure 2) on the classification of the Hanford radioactive tank waste.

I Summary:

The Nuclear Regulatory Commission (NRC) received petition i

PRM-60-4 from the States of Washington and Oregon, dated July 27,1990. The States requested that the NRC establish a process, outlined by them, for oversight of the processing and disposal of defense wastes presently contained in the double-shell tanks at Hanford, Washington.

The petitioners proposed that the NRC change its definitions of HLW and HLW Tacility in 10 CFR Part 60. This petition presents the issue of whether NRC has responsibility and authority to regulate certain DOE waste processing and disposal activities, including those at Hanford, Washington.

Subsequent to discussions with the DOE, the most recent of which was on July 16, 1992, and assuming implementation of DOE's plans as they have been presented in the course of those discussions, the staff has concluded that the activities in question are expected to result in the 030060 separ,13on or atw for esspos,3 in a geo,ogsc repository, with the residual wastes being " incidental" wastes to be CONTACT:

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TO BE MADE PUBLICLY AVAILABLE Naiem S. Tanious, RES WHEN THE FINAL SRM IS MADE 492-3878 AVAILABLE 1

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disposed of in a concrete grout facility at Hanford. This conclusion reflects the staff's view that residual wastes I

would be classified as " incidental" if they: (1) have been processed (or will be further processed) to remove key radionuclides to the maximum extent that is technically and economically practical; (2) will be incorporated in a solid physical form at a concentration that does not exceed the i

applicable concentration limits for class C low-level waste t

as set out in 10 CFR Part 61; and (3) are to be managed, l

pursuant to the Atomic Energy Act, so that safety r

requirements comparable to the performance objectives set a

out in 10 CFR Part 61 are satisfied. The staff believes that separation of the radionuclides of concern would satisfy the policy set out in Appendix F to 10 CFR Part 50.

Hence, any radioactive material remaining on site would not be high-level radioactive waste and, thus, would not be subject to the NRC's regulatory authority.

Since the i

principles of waste classification are well established and can be applied on a case-by-case basis, the staff recommends i

that this petition be denied.

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The staff also recommends that the enclosed letter (Enclosure 2) be transmitted to DOE. This letter would advise DOE that the classification criteria (as reflected in the preceding paragraph) should be applied in light of current information, including information resulting from DOE's planned reevaluation of its tank waste remediation options.

l Petition Backaround:

On December 17, 1990, the NRC published a notice of receipt i

i of a petition for rulemaking from the States of Washington and Oregon (55 FR 51732, Enclosure 3).

The States of Washington and Oregon, and The Yakima Indian Nation, i

initially submitted the petition for rulemaking on January 2, 1990. On February 7, 1990, the NRC staff conferred with petitioners as contemplated by Paragraph (b) of 10 CFR 2.802. As suggested by the NRC staff, the potition was clarified and resubmitted on July 27, 1990.

The minutes of the February 7,1990, conference are attached as Enclosure 4.

The petition requested that the Commission revise the definitions of HLW and HLW facility and establish a procedural framework and substantive standards.by which the Commission would determine whether reprocessing waste, i'

specifically that waste stored in tanks at Hanford, Washington, is HLW subject to the Commission's regulatory j

authority.

In particular, the petitioners requested that the Commission amend 10 CFR 60.2 "to clarify the definition of HLW and the t

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definition of 'HLW facility.'"

(A copy of the July 27, 1990 Petition submitted to Samuel J. Chilk, Secretary, NRC, is attached as Enclosure 5.) Under the petitioners' proposal, the Commission would:

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Establish a process to evaluate the processing of defense wastes on a tank-by-tank basis such that the largest technically achievable amount of radioactive materials is removed and l

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Require that the heat produced by r.esidual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment technology) will be within temperature limits for long-term stability of low-level waste forms.

The petitioners assert that the proposed rulemaking is essential to provide protection of the future health and safety of the citizens of the Pacific Northwest.

i Discussion:

The fundamental question presented by the petition is whether the NRC has regulatory authority for the processing or disposal of radioactive wastes now stored in tanks at Hanford.

The Energy Reorganization Act of 1974 assigned to NRC the regulatory authority over certain DOE facilities for the l

storage (including disposal) of "high-level radioactive wastes." Aside from spent nuclear. fuel, the Commission has interpreted this term as having the same meaning as in Appendix F of 10 CFR Part 50 - i.e., "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent...."

Thus, the key component for defining high-level waste (HLW) la this context is the source of the waste. When the i

Appendix F definition was promulgated, the Atomic Energy Commission specifically noted that it did not include i

" incidental" waste resulting from processing plant i

operations such as:

ion exchange beds, sludges, contaminated laboratory items, clothing, tools, radioactive hulls, and other irradiated and contaminated fuel structure hardware (34 FR 8712, June 3, 1969; 35 FR 17530, i

November 14,1970).

Hence, incidental wastes generated in conjunction with or after the extraction cycles (e.g.,

decontaminated salts or miscellaneous trash from waste glass processing) would be outside the Appendix F definition of HLW.

In the cases of Savannah River and West Valley wastes, DOE plans to retrieve the wastes from their storage tanks and to e

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separate essentially all of the radioactive materials for eventual disposal in a deep-geologic HLW repository.*

Accordingly, the projected recovery of HLW from the wastes in tank storage at those sites will be sufficiently complete that the decontaminated salts and other residual wastes are classified as " incidental" (i.e, non-HLW).

l At Hanford, DOE plans to process the wastes presently stored in the double-shell tanks in a manner similar to that planned for the wastes at Savannah River and West Valley.

However, the Hanford wastes were generated using older separation technologies, which resulted i'n substantial dilution of those wastes with non-radioactive materials.

In addition, many of the tanks at Hanford contain mixtures of wastes from both reprocessing sources and other sources.

Also, recordkeeping at Hanford was not always thorough enough to allow precise determination of the origins of waste now present in specific tanks at Hanford.

For these reasons, some of the Hanford tank wastes cannot be readily classified as either HLW or incidental wastes using previously acceptE:! definitions and Concepts.

The NRC and DOE staffs held several meetings in 1988-1989 to explore this situation in detail. A principal objective was to ascertain, to the extent practicable, whether some or all of the wastes should be regarded as HLW, as defineo in I

Appendix F.

Several things became clear as a result of these meetings.

First, records were adequate for DOE to determine that some double-shell waste tanks do not contain wastes from reprocessing of reactor fuels. Therefore, these wastes are not HLW within the Appendix F definition.

Second, a DOE " material balance" analysis indicated that the proposed on-site grout disposal of the residual waste from the double-shell tank waste processing would be only a small fraction of the radioactivity originally entering all Hanford tanks.

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'See 52 FR 5992, February 27,1987 (definition of "high-level waste"), n.

1, where the Commission characterizes as " incidental waste," the decontaminated salt with residual activities on the order of 1,500 nCi/g Cs-137, 30 nCi/g Sr-90, 2nci/g Pu, as described in the Department of Energy's FEIS on long-term management of defense HLW at the Sevannah River Plant, DOE /EIS-0023, 1979. Although an EIS has not yet been published for the West Valley Demonstration Project, preliminary estimates indicate the likelihood of an equivalent degree of separation.

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Third, DOE studied possible technologies for additional waste processing, and agreed to remove the largest practical amount of radioactive material from the double-shell tank wastes prior to disposal in on-site grout facilities. This commitment by DOE, coupled with the material-balance study, led the NRC staff to conclude that.the residual waste material after processing af double shell tank wastes should be classified as incidental waste. Specifically, the residual radioactivity would be sufficiently low that such waste should te considered incidental to the process of recovering the high-level radioactive waste from the tanks (within the sense of the Appendix F definition of HLW).

In this regard, if the DOE processing operations go as planned, the activity of the residual or incidental waste would be below concentration limits for class C wastes under the waste classification criteria of 10 CFR Part 61.

Following its review, the NRC staff, by letter from R. M.

1 Bernero to A. J. Rizzo, dated September 25, 1989, endorsed 1

DOE's plans (this letter was approved by the Commission in SECY-89-164, May 30, 1959) to sample and analyze the grout feeds before disposal in an effort to control the final composition of the grout feed. However, the staff indicated i

that, if, in the course of conducting the sampling program, e

DOE were to find that inventories of key radionuclides s

entering the grout facility are significantly higher than previously estimated, DOE should notify the NRC and other affected parties in a timely manner.

It should be noted that the appcopriate classification of some Hanford wastes remains to be determined--specifically, any single-shell tank wastes, and any empty but still contaminated waste tanks DOE might dispose of in-place.

For i

both types of wastes, a case-by-case determination of the appropriate waste classification might be necessary.

The NRC and DOE staffs met on July 16, 1992 at Richland, Washington.

In this meeting, DDE presented some options for processing the waste in the double-shell tanks, along with available information on the characteristics of the wastes within these tanks based on recent analyses.

DOE's current estimate of the total amount of radioactivity proposed for disposal in grout in near-surface vaults is within earlier range estimates but is now believed to be nearer the upper end of the range. DOE Uso clarified its intention to apply criteria comparable to the performance objectives set out in 10 CFR Part 61. DOE also indicated its intention to complete a reassessment of the tank waste processing options by March 1993; such reassessment will include a reexamination of the practicality of achieving higher degrees of separation.

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Issues Presented: The petition for rulemaking presents two issues. The-first is a substantive one, i.e., what criteria or standards

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should be applied to differentiate incidental waste from high-levP waste. The second issue is a procedural one, l

i.e., what process should be employed by the Commission in arriving at a judgment whether or not it has jurisdiction over particular facilities.

The petitioners suggest-that the proper standard, to be

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applied on a tank-by-tank basis, is to consider all processing streams to be high-level waste unless they have been treated, prior to disposal, "to remove the largest technically achievable amount of radioactivity." Adoption of such a criterion would certainly serve the goal, which had been contemplated by the Commission, of removing the hazardous process streams to a geologic repository for j

permanent storage.

It is not the only standard, however, that would suffice for this purpose, particularly when it is viewed in a broader. regulatory context.

j The clearest expression of the overall regulatory objectives is the Atomic Energy Commission's (AEC's) explanatory i

statement when it promulgated Appendix F -- namely, "that j

the public interest requires that a high degree of decontamination capability be included in such facilities and that any residual radioactive contamination after decommissioning be sufficiently low as not to represent a i

hazard to the public health and safety."' 35 FR 17530, November 14, 1970. As the staff reads the AEC's intent, the l

reference to "a high degree of decontamination capability" leaves a substantial degree of discretion.

It certainly does not rule out consideration of economic factors as well i

as technical ones.

It was the AEC's contemporaneous practice to consider financial impacts as, for example, in controlling releases of radioactive materials from licensed facilities to the lowest levels " technically and i

economically practical." AEC Manual Chapter 0511. The 4

staff believes that when the AEC spoke of a "high degree" of decontamination capability, it was guided by similar considerations. The staff suggests that, from a policy standpoint, this makes good sense, for so long as there is adequate protection of public health and safety, it would not be prudent to expend potentially vast sums.without a commensurate expectation of benefit to health and the i

environment.

Achieving a "high degree of decontamination capability" i

implies, then, that the facility should separate for disposal as much of the radioactivity as possible, using processes that are technically and economically practical.

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In addition, however, as the AEC's statement indicates, the residual radioactive contamination should be sufficiently low as not to endanger public health and safety.

l These principles -- high decontamination capability and protection of health and safety -- are the essential i

benchmarks that have influenced the development of NRC's position vis-a-vis DOE on the question of the proper i

classification of the tank wastes and grout at Hanford.

When the question regarding classification of wastes was l

first raised, the NRC staff identified to DOE some

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approaches that might be used in distinguishing HLW from incidental waste. One approach was expressed as e

follows:2 l

As an alternative approach, we suggest that DOE t

attempt an overall material balance for HLW at the Hanford site, using the source-based meaning of HLW.

It is hoped that this approach might provide a more efficient means of identifying those wastes subject to licensing by NRC under terms of the 1974 Energy Reorganization Act. Under this approach, if DOE could demonstrate that the largest practical amount of the total site activity attributable to "first-cycle solvent extraction" wastes has been segregated for disposal as HLW, then NRC would view the residual as a non-HLW. We would anticipate that at least 90 percent of the activity would have been separated in this way.

Thus, if it can be shown that DOE has processed the waste with the intent to dispose of the HLW in a repository or other appropriate licensed facility, leaving behind only a small fraction of only moderately radioactive material, then the goals stated in 10 CFR Part 50 Appendix F and incorporated in the Energy Reorganization Act would have been satisfied; and the disposal of the residual would accordingly not be subject to NRC licensing.

l In response, DOE considered the practicality of various waste processing alternatives and presented the results of t

' Letter from Michael J. Bell, Chief, Regulatory Branch, Division of low-Level Waste Management and Decommissioning, Office of Nuclear Material Safety i

and Safeguards, NRC, to Ronald E. Gerton, Director, Waste Management Division, j

Richland Operations Office, DOE, November 29, 1988. The letter included some

" suggested criteria" involving a " good faith" effort to achieve isolation of HLW from nonradioactive salts, such an effort to be judged, as a practical matter, by considering (among other things) alternative separation processes.

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its study by letter dated March 6,1989.'

The results i

were also presented at a meeting among interested parties, including the petitioners, held on August 4,1989.

(Minutes t

of the meeting are available for public inspection in the NRC Public Document Room) DOE's " baseline" disposal plans would have recovered all but about 12-13 million curies of i

cesium-137, together with lesser activities of strontium-90, transuranics, and other radionuclides.'

DOE's study indicated the practicality of removing an additional 6 million curies of cesium-137 for repository disposal.

DOE proposed to remove this additional 6 million curies of cesium-137. DOE also identified addition'al treatment i

alternatives, with their associated costs, which it viewed as not being economically practical.

DOE's material balance t

showed that, after the residue from the double-shell tank wastes is grouted, 2 to 3 percent of the key radionuclides which originally entered all Hanforij tanks would be riisposed of as LLW in near-surface vaults. The concentrations of radionuclides in the grout would be comparable to Class C for cesium and transuranic wastes, and to Class A or B for j

the remainder.5 DOE also noted certain engineering and institutional factors that might compensate, especially as to potential intrusion hazards, for the possibility that the total amount of waste that would be grouted would be greater than the amount of Class C waste that might be contained in a typical commercial burial ground.

Based on its review of DOE's March 6, 1989 submission, the NRC staff concluded that DOE's proposed processing would remove the largest practical amount of total site activity, attributable to HLW, for disposal in a deep geologic repository. This finding was based on (1) past and planned treatment of the tank wastes; (2) radionuclide concentration and material balance; and (3) cost-effectiveness of additional radionuclide removal. These conclusions reflected DOE's undertakings both to achieve a high degree l

' Letter from A. J. Rizzo, Assistant P aager for Operations, Richland Operations Office, DOE, to Robert M. Bernero, Director, Office of Nuclear Materials Safety and Safeguards, NRC, March 6, 1989.

' DOE noted in the March 6, 1989 letter from Rizzo to Bernero that, based on limited available analytical data, the total cesium-137 could be as much as 20 million curies versus the 12-13 million estimate.

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'NRC understood this statement to connote that cesium-137 and transuranic radionuclides in the residual waste would be less than the concentration j

limits for Class C low-level waste, as defined in NRC's requirements in 10 CFR I

Part 61, and that the concentration of other radionuclides would be less than the concentration li' nits for Class A or B low-level waste.

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of separation and to provide protection of public health and safety. As a result, the staff concluded that the expected residual waste would not be high-level waste and would thus not be subject to NRC licensing authority. The staff thereupon advised DOE that NRC agreed that the criteria used by DOE for classification of the grout feed are appropriate and that the grout facility for the disposal of the double-shell tank waste would not be subject to NRC licensing authority.'

At a meeting in Richland, Washington on July 16,19?2, DOE I

staff presented more detailed double-shell tank waste processing options and, based on recent analyses, summarized available information on the characteristics of waste within the tanks. DOE's current estimate of the total amount of radioactivity proposed for disposal in grout in near-surface vaults is within earlier range estimates but is now believed to be nearer the upper end of the range. DOE also clarified its intention to apply criteria comparable to the Performance Objectives set out in 10 CFR Part 61. Among other things, these performance objectives include numerical radiation exposure limits for protection of the general population from releases of radioactivity and requires a design to achieve long-term stability of the disposal site.

1 DOE intends to complete a reassessment of the tank waste processing options by March 1993. This reassessment, the NRC staff understands, will include a reexamination of the practicality of achieving higher degrees of separation, particularly with respect to those tanks that contain substantial quantities of key radionuclides.

Assuming implementation of DOE's plans as described above, the staff believes that any radioactive material from the double shell tanks that is deposited in the grout facility would not be high-level radioactive waste subject to NRC's licensing jurisdiction. The responsibility for safely managing those wastes rests with the Department of Energy.

The basis for the staff's position is that the reprocessing wastes disposed of in the grout facility would be j

" incidental" wastes because they: (1) have been processed (or will be further processed) to remove key radionuclides to the maximum extent that is technically and economically l

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' Letter from Robert 14. Bernero, Director, Office of Nuclear fiaterial

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f Safety and Safeguards, NRC, to A. J. Rizzo, Assistant Manager for Operations, Richland Operations Office, DOE, September 25, 1989. The letter also called upon DDE to advise NRC periodically of the analytical results of samples of key radionuclides entering the grout facility, so that the classification of the waste might be reconsidered if the inventories were significantly higher than DOE had estimated.

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The Cem?.issioners 10 practical; (2) will be incorporated in a solid physical form at a concentration that does not exceed the applicable concentration limits for Class C low-level waste as set out in 10 CFR Part 61; and (3) are to be managed, pursuant to the Atomic Energy Act, so that safety requirements comparable to the performance objectives set out in 10 CFR Part 61 are satisfied.

The petitioners also requested that the Commission exercise oversight to assure that the grout meets temperature requirements for low-level waste forms. They acknowledge that DOE's vault design is protective of human health and the environment if heat produced by residual radioactivity, together with heat generated from reactions during the grout process, is kept within defined limits. They present no technical data to suggest that achievement of these temperature controls presents any unusual engineering challenge.

In any event, if the Commission concludes that the grout produced in accordance with DOE's plans is not high-level waste, it would not have the authority to carry out this oversight function.

As to the procedural issue, the staff believes that this matter should be addressed case-by-case rather than by rulemaking.

Rulemaking is desirable where an agency establishes a general principle having prospective effect, to be applied in a wide variety of factual contexts - but not, as here, where the matter involves the application of law to a specific, and unique, existing factual situation.

A full discussion of the procedural issues is included in the Federal Register Notice (Enclosure 1).

Public Comment s:

The NRC received letters from 12 commenters.

Two letters were from other Federal agencies (DOE and EPA), two were from public interest groups, one was from a nuclear industry corporation (Westinghouse), and seven were from private individuals. Most comments were opposed to the petition.

A full discussion of the comments and the staff response tc them is included in the Federal Register Notice (Enclosure 1).

Letter to DOE:

In view of the new information received during the July 16, 1992 meeting with DOE, the staff is recommending transmittal of the enclosed letter.

The letter advises DOE that the classification criteria described above should 'be applied in light of current information, including information resulting from DOE's planned reevaluation of its tank waste remediation options.

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The Commissioners 11 Pecem,endation:

For the reasons discussed above, the staff recommends that the petition be denied.

Specifically the staf f recommends that the Commission:

(1)

Approve for publication in the Federal Recister the notice of denial of petition for rulemaking (Enclosure 1).

(2)

Approve for transmittal to DOE the enclosed letter (Enclosure 2).

(3)

Note:

(a)

That the appropriate Congressional committees will be informed of this action (Enclosure 6).

(b)

That the States of Washington and Oregon, and the Yakima Indian Nation will be informed of this action (Enclosure 7).

(c)

That a public announcement will be issued by the Office of Public Affairs when the notice of derial is filed with the Office of the Federal Register (Enclosure 8).

Coordination:

The Office of the General Counsel has reviewed this paper and has no legal objection.

/

darsM. Taylor Executive Director for Operations

Enclosures:

1.

Federal Register Notice 2.

Proposed Letter to DOE 3.

N;tice nf Receipt of Petition 4.

Min. of mig NRC/ State of Washington 5.

The States' Petition to Samuel J.

Chilk, Secretary, NRC 6.

Congressional Letters 7.

Ltrs to the States of Washington i

& Oregon, 5 the Yakima Indian Nation 8.

Draft Public Announcement i

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Commissioners' comments or consent should'be provided directly' to the Office of the Secretary by COB Friday, December 4, 1992..

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Commission Staff Office comments, if any, should be submitted f

to the Commissioners NLT Friday, November 27, 1992, with an i'

information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional review and comment, the~ Commissioners and the Secretariat should be

. j apprised of when~ comments may be expected.

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NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 f

Docket No. PRM-60-4 States of Washington and Oregon: Denial of Petition for Rulemakivig l

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Denial of petition for rulemaking.

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SUMMARY

The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-60-4), submitted by the States of Washington and Oregon,'which deals with the process and criteria for classifying radioactive waste-

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materials at defense facilities as high-level radioactive waste (HLW) or as non-HLW.

(As noted in the petition, certain facilities for the storage of HLW are subject to NRC licensing authority.) The petition is being denied because the NRC concludes that the principles for waste classification are well i

established and can be applied on a case-by-case basis without revision to the i

regulations.

ADDRESSES:

Copies of the petition for rulemaking, the public comments received, and the NRC's letter to the petitioner are available fo,r public inspection or copying in the NRC Public Document Room, 2120 L Street, NW.

(Lower Level), Washington, DC.

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t FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC l

20555, telephone (301) 492-3878.

SUPPLEMENTARY INFORMATION:

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The Petition q

The States of Washington and Oregon, and the Yakima Indian' Nation,

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initially submitted a petition for rulemaking on this subject on January 2, i

1990. On February 7, 1990, the NRC staff conferred with the petitioners as j

contemplated by Paragraph (b).of 10 CFR 2.802.

In response to suggestions by the NRC staff, the petition was clarified and resubmitted (by the States of Washington and Oregon) on July 27, 1990.

On December 17, 1990, the Nuclear Regulstory Commission published a j

notice of receipt of the petition for rulemaking (55 FR 51732). The petition requested that the Commission revise the definition of "high-level radioactive 5

waste" (HLW) so as to establish a procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U.S. Department of l

Energy's (DOE) site at.Hanford, Washington, is HLW and, therefore, subject to l

j the Commission's licensing authority, The petitioners request _that the Commission amend 10 CFR 60.2 to clarify _

j the definition of HLW.and the definition of "HLW facility." The petitioners f

5 specifically request that the Commission:

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1.

Establish a process to evaluate the treatment of defense reprocessing wastes in tanks so that such wastes will not be considered HLW if, prior to disposal, each tank is treated to remove the largest technically achievable amount of radioactivity; and 2.

Require that the heat produced by residual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment technology), will be within limits established to ensure that grout meets temperature requirements for long-term stability for low-level waste forms.

The petitioners state that the petition for rulemaking is based, in part, on Section 202 of the Energy Reorganization Act of 1974 (ERA), which provides for the Commission to exercise licensing and related regulatory authority over " facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive wastes generated by [ DOE) which are not used for, or are part of, research and development activities."

According to the petitioners, the legislative history of the ERA reveals that Congress intended the Commission to license defense reprocessing tank wastes at the point of long-term storage or disposal. The petitioners note that " low-fraction wastes" resulting from pretreatment of tank wastes are scheduled to be grouted and disposed of in land-based grout vaults on the Hanford site in accordance with regulations developed under the Resource Conservation and Recovery Act (RCRA). The petitioners believe that if these wastes are HLW, they clearly fall under the Commission's licensing jurisdiction under Section 202(4) of the Energy Reorganization Act of 1974 (42 USC 5842(4)).

The petitioners acknowledge that the present definition of HLW in the Commission's regulations is based upon the source of the waste, and that 3

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" incidental waste" generated in the course of reprocessing is not HLW.

(The latter point is evident from the proposal to amend 10 CFR 60.2 to provide that 1

a residual fraction would be " considered an incidental waste and, therefore, not HLW.") The petitioners claim, however, that wastes stored in tanks at l

Hanford cannot practicably be classified as incidental waste (as opposed to i

HLW) because the tanks contain a mixture of wastes from a number of sources,

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including reprocessing of reactor fuel. Moreover, the petitioners state that radionuclide inventories are estimates subject to substantial uncertainty, owing to lack of accurate records.

Further, the petitioners assert that neither DOE, the Commission, nor the petitioners have adequate information regarding the source and composition of the tank waste. Hence, the j

petitioners believe that the Commission needs to establish both a procedure and a standard for making an evaluation as to whether wastes are HLW on a i

tank-by-tank basis.

I The petitioners assert that the proposed amendment is essential to l}

provide protection of the future health and safety of the citizens of the i

i Pacific Northwest.

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Classification of DOE Reprocessing Wastes 5

i At Hanford and other sites, questions have arisen regarding the l

classification of reprocessing wastes for which DOE must provide disposal.

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i the long-standing view of the Commission, these questions must be resolved by examining the source of the wastes in question The reason for this is that when Congress assigned to NRC the licensing authority over certain DOE facilities for "high-level radioactive wastes," the Congress was referring to l

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i those materials encompassed within the meaning of the term "high-level l

radioactive waste" in Appendix F of 10 CFR Part 50.

(For a full statement of l

this position, see the discussion presented in the Commission's advance notice of proposed rulemaking, " Definition of High-Level Radioactive Waste" (52 FR 5993, February 27, 1987)..) Accordingly, any facility to be used for the I

disposal of "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent.." as HLW is defined in Appendix F to Part 50, must be licensed by the NRC. Most of the waste storage i

tanks at Savannah River (South Carolina), West Valley (New York), and Hanford contain wastes that meet this definition, and the facilities to be used for disposal of these wastes are, therefore, potentially subject to NRC licensing l

jurisdiction.

However, when the Appendix F definition was promulgated, the Atomic Energy Commission specifically noted that the term HLW did not include

" incidental" waste resulting from reprocessing plant operations, such as ion exchange beds, sludges, and contaminated laboratory items, such as clothing, l

tools, and equipment.

Neither were radioactive hulls and other irradiated and i

contaminated fuel structural hardware encompassed by the Appendix F definition.

Under the same reasoning, as the Commission has previously indicated, incidental wastes generated in further treatment of HLW (e.g., salt residues or miscellaneous trash from waste glass processing) would be outside j

1 the Appendix F definition.

In the cases of Savannah River and West Valley wastes, DOE plans to retrieve the wastes from their storage tanks and to separate essentially all of the radioactive materials for eventual disposal in a deep-geologic HLW i

5

repository. ' Accordingly, the projected recovery of HLW from the wastes in tank storage at those sites will be sufficiently complete that the.

i decontaminated salts and other residual wastes are classified as " incidental" (i.e., non-HLW). The NRC will have no regulatory authority, under Section 202 of the Energy Reorganization Act, over DOE's facilities to be used for processing and disposal of the incidental waste.

At Hanford, DOE plans to process the wastes presently stored in double-shell tanks in a manner similar to that planned for the wastes at-Savannah River and West Valley.

Such processing would separate most of the radioactive constituents of the wastes for eventual deep-geologic repository.

disposal and, the residual salts would be disposed of onsite in a shallow, near-surface concrete-like grout facility.

(Plans for processing of single-

.shell tank wastes have been deferred.) However, classification of the Hanford double-shell tank wastes has proven more difficult than classification of Savannah River and West Valley wastes. At Hanford, many of the primary reprocessing wastes were generated using older separation technologies, which resulted in substantial dilution of those wastes with nonradioactive materials.

In addition, many of the tanks at Hanford contain mixtures of t

wastes from both reprocessing sources and other sources.

Finally, recordkeeping at Hanford was not always thorough enough to allow precise determinations of the origins of the wastes now present in specific tanks at 4

See 52 FR 5992, February 27, 1987 (definition of "high-level waste"),

i 2

n. 1, where the Commission characterizes as " incidental waste," the decontaminated salt with residual activities on the order of 1,500 nCi/g l'

Cs-137,.30 nCi/g Sr-90, 2nci/g Pu, as described in the Department of Energy's FEIS on long-term management of defense HLW at the Savannah River Plant, DOE /flS-0023, 1979. Although an EIS has not yet been published for the West i

Valley Demonstration Project, preliminary estimates indicate the likelihood of q

i an equivalent degree of separation.

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Hanford.

For these~ reasons, some of the Hanford tank wastes cannot be readily f

classified as either HLW or incidental wastes using only the definitions and f

concepts discussed above.

Taking into account these uncertainties and their implications with respect to NRC jurisdiction, the NRC and DOE staff held several meetings to 1

explore the situation in detail. A principal objective of these meetings was to ascertain, to the extent practicable, whether some or all of the wastes should be regarded as HLW and whether, on the other hand, some or all of the j

wastes should be classified as non-HLW.

Several things became clear as a result of these meetings.

First, management records were adequate for DOE to determine that two s

double-shell waste tanks do not contain wastes from reprocessing of reactor fuels.

Therefore, these wastes clearly do not contain HLW within the i

Appendix F definition. The NRC agreed with DOE that any disposal facility intended exclusively for these wastes would not be subject to NRC licensing j

authority.

Second, DOE has carried out a " material balance" analysis of waste management activities at Hanford. This analysis estimated the total amount of "first cycle reprocessing wastes" generated at Hanford and, to the extent l

practical, the current location of those wastes. The DOE proposed onsite i

grout disposal of the residual waste from the double-shell tank waste o

processing would be only a small fraction of the reprocessing wastes l

originally generated at the site.

Finally, DOE studied possible technologies for additional waste processing, and agreed to remove the largest practical amount of radioactive material from double-shell tank wastes prior to disposal in onsite grout 7

n. -

l facilities. This commitment by DOE, coupled with the material-balance study '

indicating that most of the originally-generated radioactive material would be recovered, led the liRC staff to conclude that the residual waste material I

should be classified as incidental waste, since they are wastes incidental to the process of recovering HLW. With this classification, DOE could proceed with onsite disposal of such incidental wastes in a grout facility without licensing by the 14RC.

It should be noted that if the DOE processing operations go as planned, the residual activity of these incidental wastes would be below the concentration limits for Class C wastes under the waste classification criteria of 10 CFR Part 61.

Following its review, the f1RC staff, by letter dated September 25, 1989, from R. M. Bernero, Director, Office of fiuclear Material Safety and Safeguards, NRC, to A. J. Rizzo, Assistant Manager for Operations, Richland Operations Office, DOE, endorsed DOE's plans to sample and analyze the grout j

feeds before disposal in an effort to control the final composition of the grout feed.

However, the staff indicated that if DOE were to find, in the l

course of conducting the sampling program, that the inventories of key radionuclides entering the grout facility are significantly higher than previously estimated, DOE should notify the f4RC and other affected parties in i

a timely manner.

It should be noted that the appropriate classification of some Hanford wastes remains to be determined -- specifically, any single-shell tank wastes, and any empty but still contaminated waste tanks DOE might dispose of l

in-place.

For both types of wastes, a case-by-case determination of the l

i appropriate waste classification might be necessary.

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l 111. Discussion i

The petition for rulemaking presents two basic issues.

The question is not whether "high-level waste" should be interpreted by reference to the

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source-based concepts derived from Appendix F to 10 CFR Part 50. The petitioners agree that this is proper. Nor is there any fundamental challenge to the concept that " incidental wastes" are excluded from the definition of "high-level waste." The issues are much narrower ones. The first issue is a substantive one -- the criteria to be applied in differentiating incidental waste from high-level waste. The second issue is a procedural one -- the process that should be employed by the Commission in arriving at a judgment whether or not it has jurisdiction over particular facilities. These will be addressed in turn.

I A. The Standard for Classification We first address the standard that should be employed in distinguishing high-level waste from incidental waste.

In doing so, we strive to apply the policies that underlie the adoption of Appendix F to 10 CFR Part 50 (and, i

hence, Section 202 of the Energy Reorganization Act).

The petitioners suggest that the proper standard, to be applied on a tank-by-tank basis, is to consider all processing streams to be high-level waste unless they have been treated, prior to disposal, "to remove the largest technically achievable amount of radioactivity." Adoption of such a criterion would certainly serve the goal, which had been contemplated by the Commission, of removing the bazardous process streams to a geologic repository for 9

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t permanent storage.

It is not the only standard, however, that would suffice for this purpose, particularly when it is viewed in a broader regulatory context.

The clearest expression of the overall regulatory objectives is the Atomic Energy Commission's (AEC's) explanatory statement when it promulgated Appendix F -- namely, "that the public interest requires that a high degree of decontamination capability be included in such facilities and that any-residual radioactive contamination after decommissioning be.sufficiently low I

as not to represent a hazard to the public health and safety." 35 FR 17530, November 14, 1970. As we read the AEC's intent,.the reference to "a high degree of decontamination capability" leaves a substantial degree of 1

1 discretion.

It certainly does not rule out consideration of economic factors as well as technical ones.

It was the AEC's contemporaneous practice to i

consider financial impacts as, for example, in controlling releases of l

radioactive materials from licensed facilities to the lowest levels t

" technically and economically practical." AEC Manual Chapter 0511. When the i

AEC spoke of a "high degree" of decortamination capability, we believe that it j

was guided by similar considerations. Moreover, from a policy standpoint, this makes good sense, for so long as there is adequate protection of public health and safety, it would not be prudent to expend 'potentially vast sums without a commensurate expectation of benefit to health and the environment.

^

Achieving a "high degree of decontamination capability" implies, then, that the facility should separate for disposal as much of the radioactivity as possible, using processes that are technically and economically practical.

In addition, however, as the AEC's statement indicates, the residual radioactive d

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contamination should be sufficiently low as not to endanger public health and safety.

These principles -- high decontamination capability and protection of health and safety -- are the essential benchmarks that have influenced the development of NRC's position vis-a-vis DOE on the question of the proper classification of the tank wastes and grout at Hanford.

When the question regarding classification of wastes was first raised, the NRC staff identified to DOE some approaches that might be used in distinguishing HLW from incidental waste.

One approach was expressed as follows:'

As an alternative approach, we suggest that DOE attempt an overall i

material balance for HLW at the Hanford site, using the source-based meaning of HLW.

It is hoped that this approach might provide a more efficient means of identifying those wastes subject to licensing by NRC under terms of the 1974 Energy Reorganization Act, Under this approach, if DOE could demonstrate that the largest practical amount of the total site activity attributable to "first-cycle solvent extraction" wastes has been segregated for disposal as HLW, then NRC would view the residual as a non-HLW. We would anticipate that at least 90 percent of the activity would have been separated in this way.

Thus, if it can be shown that DOE has processed the waste with the intent to dispose of the HLW in a repository or other appropriate licensed facility, leaving

' Letter from Michael J. Bell, Chief, Regulatory Brant.h, Division of Low-Level Waste Management and Decommissioning, Office of Nuclear Material Safety and Safeguards, NRC, to Ronald E. Gerton, Director, Waste Management Division, Richland Operations Office, DOE, November 29, 1988.

The letter included some

" suggested criteria" involving a " good faith" effort to achieve isolation of HLW from nonradioactive salts, such an effort to be judged, as a practical t

matter, by considering (among other things) alternative separation processes.

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behind only a small fraction of only moderately radioactive material, then the goals stated in 10 CFR Part 50 Appendix F and incorporated in the Energy Reorganization Act would have been satisfied; and the disposal of the residual would accordingly not be subject to NRC licensing.

In response, DOE considered the practicality of various waste processing alternatives and presented the results of its study by letter dated March 6, 1989.'

The results were also presented at a meeting among interested i

parties, including the petitioners, held on August 4, 1989.

(Minutes of the meeting are available for public impection in the NRC Public Document Room)

DOE's " baseline" disposal plans would have recovered all but about 12-13 million curies of cesium-137, together with lesser activities of strontium-90, transuranics, and other radionuclides.'

DOE's study indicated the practicality of removing an additional 6 million curies of cesium-137 for i

repository disposal.

DOE proposed to remove this additional 6 million curies of cesium-137.

DOE also identified additional treatment alternatives, with their associated costs, which it viewed as not being economically practical.

DOE's material balance showed that, after the residue from the double-shell tank wastes is grouted, 2 to 3 percent of the key radionuclides which I

originally entered all Hanford tanks would be disposed of as LLW in near-surface vaults.

The concentrations of radionuclides in the grout would be Letter from A. J. Rizzo, Assistant Manager for Operations, Richland Operations Office, DOE, to Robert M. Bernero, Director, Office of Nuclear Materials Safety and Safeguards, NRC, March 6,1989.

' DOE noted in the March 6,1989 letter from Rizzo to Bernero that, based on limited available analytical data, the total cesium-137 could be as much as 20 million curies versus the 12-13 million estimate.

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1 comparable to Class C for cesium and transuranic wastes, and to Class A or B for the remainder.'

00E also noted certain engineering and institutional-factors that might compensate, especially as.to potential intrusion hazards, for the possibility that the total amount of waste that would be grouted would be greater than the amount of Class C waste that might be contained in a typical commercial burial ground.

i Based on its review of DOE's March 6, 1989 submission, the NRC staff concluded that DOE's proposed processing would remove the largest practical amount of total site activity, attributable to HLW, for disposal in a deep 3

geologic repository. This finding was based on (1) past and planned treatment i

I of the tank wastes; (2) radionuclide concentration and material balance; and (3) cost-effectiveness of additional radionuclide removal. These conclusions reflected DOE's undertakings both to achieve a high degree of separation and -

to provide protection of public health and safety. As a result, the staff concluded that the expected residual waste would not be high-level waste and would thus not be subject to NRC licensing authority.

The staff thereupon j

advised DOE that NRC agreed that the criteria used by DOE for classification of the grout feed are appropriate and that the grout facility for the disposal i

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'NRC understood this statement to connote that cesium-137 and transuranic radionuclides in the residual waste would be less than the concentration' limits for Class C low-level waste, as defined in NRC's requirements in 10 CFR Part 61, and that the concentration of other radionuclides would be less than

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the concentration limits for Class A or B low-level waste.

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i of the double-shell tank waste would not be subject to NRC licensing l

authority.'

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At a meeting in Richland. Washington on July 16, 1992, DOE staff I

presented more detailed double-shell tank waste processing options and, based on recent analyses, summarized available information on the characteristics of j

waste within the tanks. DOE's current estimate of the total amount of radioactivity proposed for disposal in grout in near-surface vaults is within earlier range estimates but is now believed to be nearer the upper end of the range.

DOE also clarified its intention to apply criteria comparable to the r

Performance Objectives set out in 10 CFR Part 61. Among other things, these performance objectives include numerical radiation exposure limits for I

protection of the general population from releases of radioactivity and requires a design to achieve long-term stability of the disposal site.

DOE intends to complete a reassessment of the tank waste processing options by March 1993.

This reassessment, the NRC staff understands, will include a reexamination of the practicality of achieving higher degrees of separation, particularly with respect to those tanks that contain substantial s

quantities of key radionuclides.

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Assuming implementation of DOE's plans as described above, the Commission concludes that any radioactive material from the double shell tanks i

that is deposited in the grout facility would not be high-level radioactive waste subject to NRC's licensing jurisdiction.

The responsibility for safely

' Letter from Robert M. Bernero, Director, Office of Nuclear Material Safety and Safeguards, NRC, to A. J. Rizzo, Assistant Manager for Operations, Richland Operations Office, DOE, September 25, 1989.

The letter 'also called i

upon DOE to advise NRC periodically of the analytical results of samples of i

key radionuclides entering the grout facility, so that the classification of i

the waste might be reconsidered if the inventories were significantly higher i

than DOE had estimated.

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I managing those wastes rests with the Department of Energy. The basis for the

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Commission's position is that the reprocessing wastes disposed of in the grout facility would be " incidental" wastes because they: (1) have been processed (or will be further processed) to remove key radionuclides to the maximum t

extent that is technically and economically practical; (2) will be incorporated in a solid physical form at a concentration that does not exceed the applicable concentration limits for Class C low-level waste as set out in i

10 CFR Part 61; and (3) are to be managed, pursuant to the Atomic Energy Act, i

so that safety requirements comparable to the performance objectives set out in 10 CFR Part 61 are satisfied.

The petitioners also requested that the Commi:.sion exercise oversight to assure that the grout meets temperature requirements for low-level waste forms.

They acknowledge that DOE's vault design is protective of human health e

and the environment if heat produced by residual radioactivity, together with heat generated from reactions during the grout process, is kept within defined i

limits.

They present no technical data to suggest that achievement of these temperature controls presents any unusual engineering challenge.

In any event, inasmuch as the Commission does not consider the grout produced in i

accordance with DOE's plans to be high-level waste, it does not have the authority to carry out this oversight function.

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i B. Procedural Issues 1.

Whether Rulemakino Is Necessary and Desirable The petitioners urge that the Commission initiate rulemaking procedures i

that would result in the establishment of substantive criteria for determining whether particular radioactive wastes either are or are not high-level waste.

Generally, a decision whether to proceed by rulemaking (as requested) or to make determinations in individual, ad hoc litigation lies within the informed i

discretion of the cognizant administrative agency.

Rulemaking is most appropriate where an agency seeks to establish a general principle, having prospective effect, to be applied in a wide variety of factual contexts.

Where the issue before an agency involves the application of law to a very specific existing fact situation, especially where that situation is not representative of other matters that may need to be decided by the agency, then it is clearly more efficient and more to the point to decide by a process l

1 of adjudication (i.e., on a case-by-case basis).

i Applying these principles to the petition at hand, the Commission has i

little difficulty in concluding that rulemaking is neither necessary nor i

a desirable.

Reprocessing wastes are located at only four principal locations in the United States.

The Commission has previously determined that the residual contamination anticipated from proposed operations at Savannah River l

should be characterized as incidental waste and not high-level waste (see 52 FR 5993, Feb. 27, 1987, cited above, at footnote 1.) Wastes generated at the Idaho Chemical Processing Plant are markedly different from those at s

Hanford and Savannah.

Therefore, if questions about classification of the 16 i

_4

Idaho wastes should arise, precedents established at Savannah River and Hanfor:: might be difficult to apply. Any wastes at the Western New York Nuclear Service Center will require treatment in accordance with the applicable provisions of the West Valley Demonstration Project Act.

The limited practical effect of the decision -- i.e., restricted to the Hanford tanks -- is reason enough to proceed by way of adjudication instead of rulemaking. The Commission is persuaded further by the need to avoid making premature decisions with respect to the wastes stored at Hanford in single-l shell tanks that are not the subject of pending treatment plans.

If the Commission were-to establish rules to apply to the wastes remaining in those tanks, our inquiry would have to be greatly broadened; and it might become necessary to consider a wide range of situations that might or might not ever come to pass in the future.

2.

Whether the Commission is Adecuately Informed Petitioners suggest that their proposed procedures, which include detailed tank-by-tank assessments, are necessary to ensure confidence in the treatment process employed by DOE and to build confidence that the treatment _

I standard is being met.

The issue to be decided by the Commission is a much narrower one:

it is merely to determine whether the activities being undertaken by the Department of Energy f all within the NRC's statutory jurisdiction.

As in the case of other persons whose activities may fall within. our regulatory sphere, the l

Commission may from time to time demand information so as to be able to determine whether or not to initiate an enforcement action.

The NRC staff has 17

acted in this manner in its inquiries to DOE.

It has obtained and evaluated information that is relevant and material to a determination whether or not the proposed activities of the DOE are subject to NRC licensing jurisdiction.

All the information obtained and evaluated has been made available contemporaneously to the public.

Moreover, as a practical matter, the NRC has requested the DOE to periodically submit summaries of the analytical results of all samples of the grout feeds for disposal as incidental wastes.

NRC recognized the l

uncertainties associated with the projected radionuclide inventories in the tank wastes and endorsed DOE plans for sampling and analyzing the grout feeds -

before disposal. The objective of these efforts is to control the final I

composition of the grout wastes.

If DOE finds that inventories of key radionuclides entering the grout facility are significantly higher than DOE estimated in 1989, DOE should notify NRC so that the Commission could I

reconsider its classification of the waste.

NRC has also requested DOE to provide the summaries of the analytical data to other affected parties, j

If a standard of " largest technically achievable amount.... will be j

isolated" were to be applied, then the facts submitted by DOE might not be j

sufficient to conclude that NRC lacked jurisdiction.

However, the proper i

standard includes considerations of economical practicality as well. As indicated in an earlier part of this decision, the Commission has obtained information that is sufficient for this purpose.

i 3.

Future Ad.iudications I

The petitioners contemplate that if a rule were to be adopted in 18

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accordance with their proposal, particular determinations of how specific wastes would be characterized would be "left to individual adjudicative proceedings." The NRC infers that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of the Atomic Energy Act, as amended, 42 USC 2239. Adjudications in this type of

(

proceeding are in some cases to be conducted in,tecordance with the hearing j

provisions of Subpart L of 10 CFR Part 2.

L These procedures are often appropriate with respect.to activities that l

are subject to NRC regulatory and licensing authority. However, the NRC is reluctant to employ them in the context that is proposed -- to determine whether n' has jurisdiction in the first place. To do so would entail the l

conduct of an adjudicatory proceeding in order to see whether another adjudicatory licensing proceeding must be held. More importantly, the Commission considers that the existing record contains all the factual information needed for a decision and that no unresolved material factual issues remain that would require further proceedings, i

4.

Other C?nsiderations While both NRC and DOE have focused their attention upon it.e meaning of the statutory term "high-level waste" and its application to the materials it, storage at Hanford, other considerations might come into play in determining whether or not DOE activities are subject to licensing.

In pa' icular, it f

should be recalled that NRC exercises licensing authority unt Section 202(4) s only as to "f acilities authorized for the express purpose of subsequent long-term storage of [ DOE-generated] high-level waste." The content of individual

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waste tanks is by no means dispositive of the question whether the facilities

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for storage of the treated waste are subject to licensing. A number of other factors may be relevant and material as well:

(1) what are the limits, I

geographically and functionally, of " facilities"; (2) have those facilities been " authorized" (and by whom is such authorization required); and (3) have 4

those facilities been authorized "for the express purpose of subsequent long-term storage of high-level waste" where those who may authorize the facility make no express mention of high-level waste?

It is not necessary for the Commission to address these questions at length in order to dispose of the pending petition.

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IV.

Public Comments on the Petition j

The NRC received letters from 12 commenters. Two letters were from other Federal agencies, two were from public interest groups, one was from a l

nuclear industry corporation, and seven were from private individuals.

Most comments were opposed to the petition.

1 A.

Process and Standards Proposed in Petition l

5 Several comments expressed concern that granting the petition would have an adverse effect on the timely disposal of radioactive waste at Hanford.

This was a concern because many of the Hanford waste tanks were seen as nearing or exceeding their design life. The provisions of the ru,lemaking j

proposed in the petition were viewed as limiting DOE's flexibility in 1

selecting the most effective processes for waste treatment and disposal. The I

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petitioner's request that "best available technology" be used in removing HLW ll material from the tank wastes was seen as ignoring costs of disposal, j

exposures to workers, and environmental impacts.

Some comments disputed the petitioner's claim that the rulemaking proposed in the petition would offer a better process for_ classification and disposal of the Hanford tank wastes.

These commenters did not see any j

advantage in the proposed process over the process for classification and disposal currently in use.

One comment suggested that the Commission's i

rulemaking requiring disposal of Greater-than-Class C waste in a geologic l

repository or Commission-approved alternative (53 FR 17710, May 19,1989) might force DOE to allocate resources to handle the hazards, rather than to waste further time fruitlessly searching for ways to remove more and more l

activity from one part of the waste.

The action proposed by the petitioners was viewed as not increasing the safety of disposal of the waste.

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The Commission believes that adherence to the standard of technical and economic practicality generally reflects agreement with these comments.

B.

Creation of a Risk-Based Classification System I,

Several comments, while noting that the rulemaking proposed by the petition would not do so, favored creation of a risk-based system of f

f radioactive waste classification.

i The Commission has previously addressed the costs and benefits of creating a new system of radioactive waste classification.

Its rationale for not doing so is outlined in the statement of considerations to the proposed Part 61 rulemaking on disposal of Greater-than Class C waste (53 FR 17709,_

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v May 18, 1988).

Further consideration of these issues is beyond the scope of j

this proposed rulemaking action.

i C.

NRC Licensing Authority t

i Some comments focused on the licensing authority of NRC over the Hanford tank wastes. DOE stated that the rulemaking suggested in the petitica would involve NRC in regulation of DOE's predisposal waste treatment and hrocessing

^

activities, which would be inconsistent with NRC authority to license specific j

DOE facilities under the Energy Reorganization Act of 1974. Another commer.ter i

stated that the proposed rulemaking was inconsistent with the statutory responsibilities of DOE and NRC.

These arguments have already been discussed, l

and require no further response.

It may be emphasized, however, that even if the Commission were found to have jurisdiction over the disposal facilities,-

l it would not regulate either the tanks themselves or the facilities being used i

to process the wastes in these tanks; and there is reason for concern that implementation of the petitioner's proposal might draw the Commission l

improperly into regulation of those facilities, j

A commenter concluded that DOE was currently in violation of 10 CFR Part 30 requirements for a license because various near-surface waste disposal facilities at Hanford are being used for "long-term storage" of high-level radioactive waste. The issue is not pertinent to the subject. matter of f

the petition.

However, in any case, the comment does not take into r

consideration the judicial inteipretation of the term in Natural Resources Defense Council. Inc. v. U.S. Nuclear Reculatory Commission, 606 F.2d 1261 (D.C. Cir., 1979).

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D.

Public Input A number of comments stressed the importance of adequate public input into decision making regarding disposal of the Hanford tank wastes.

Some i

called for public hearings on this subject to be held in the Pacific

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Northwest. One commenter noted that the EIS which was done for Hanford provided the opportunity for public comment. Another commenter believed that the Commi'.sion's rulemaking procedures did not offer the public a better opportunity for input than does the current licensing procedure.

As indicated in the Discussion above, the NRC's review of the situation with respect to the double-walled tanks has been carried out publicly from the start.

Meetings with DOE have been open, and at least one of the petitioners I

(the State of Washington) has been provided advance notice and an opportunity to attend.

Documents have been placed in the Public Document Room and have

[

been made available for public inspection.

It appears to the Commission that the essence of the issue concerns the appropriate standard for evaluating whether certain wastes should be regarded as high-level waste or not.

Sufficient factual information is available to carry out these evaluations.

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Also, the petition for rulemaking has afforded an opportunity for views to be expressed with respect to the appropriateness of the standard.

A decision that NRC lacks licensing jurisdiction does not mean that opportunities for public input will be denied.

As DOE undertakes its waste management activities, it will affcrd opportunitics for public participation to the extent required by its own enabling statutes, regulations,'and orders.

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f E.

Other Comments e

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One commenter took exception to the petitioner's claim that the i

radioactive inventory of the Hanford tank wastes was inadequately known. The j

commenter believed that the contents of the tanks can be bounded well enough l

to judge the relative safety of various disposal options.

l The Commission considers the available information to be sufficiently bounded to enable it to conclude that DOE's proposed operations (with respect j

to the material stored in the double-shell tanks) can result in the. removal j

i from the Hanford double-shell tanks of as much of the radioactive waste as may j

be technically and economically practical, and that the applicable regulatory objectives have been satisfied. Once these judgments are made,.. is not the j

NRC's role to judge the relative safety of various disposal options, and we f

i decline to do so.

One comment stated that while the petition was aimed solely at the

{

Hanford tank wastes, its provisions could potentially affect all radioactive wastes from reprocessing, including those at Savannah River, West Valley, and the Idaho National Engineering Laboratory. As the waste management programs at these other sites are in different stages of implementation, the impacts of l

the provisions would vary from site to site.

As indicated above, the i

Commission is sensitive to this consideration yet believes that the specific case at hand only needs to be addressed at this time.

Some comments urged the Commission not to change the present definition of HLW. The Commission is not changing the present definition.

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N V.

Conclusion i

for the reasons presented in this document, the petition for rulemaking.

is denied.

i Dated at Rockville, Maryland this day of 1992.

For the Nuclear Regulatory Commission.

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Samuel J. Chilk, Secretary of the Commission.

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l 00C. FILE NAME:

HNFDPET5.WP I

i LONG DISPLAY:

PRM-60 Denial j

CREATED:

AUTHOR:

N. Tanious REVISED:

08/24/92 08/25/92 08/31/92 09/03/92 09/22/92.

TYPIST:

CJones CJ CJ CJ CJ TIME:

3:30 pm 3:00 pm 4:10 pm 1:30 pm 11:28 am 09/25/92 11/4/92 11/4/92 CJ jw jw 1:05 pm 9:00am 2:30 i

EXCERPT:

[7590-01]

l NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 Docket No. PRM-60-4 States of Washington and Oregon: Denial of Petition for Rulemaking AGENCY:

Nuclear Regulatory Commission.

4 ACTION:

Denial of petition for rulemaking.

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SUMMARY

The Nuclear Regulatory Commission (NRC) is denying _ a petition for rulemaking (PRM-60-4), submitted by the States of Washington and Oregon, which 1

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ENCLOSURE 2 t

Proposed Letter to DOE E

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I' N ft 1 UNITED STATES 5 M J'[) !

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NUCLEAR REGULATORY COMMISSION 130 F WASH!NGTON. D.C. 20E46 g.v....f 1

Mr. John Tseng, Director Hanford Program Office i

Office of Waste Management Environmental Restoration and Waste Management U.S. Department of Energy l

Washington, D.C.

20585

Dear Mr. Tseng:

Members of the Nuclear Regulatory Commission staff appreciated the opportunity to meet with the Department of Energy (DOE) staff, DOE contractors, and other j

parties on July 16, 1992, to review new waste characterization data and current DOE plans for management of radioactive tank waste at Hanford.

The i

purpose of this letter is to provide DOE with the staff's assessment of that information as it relates to DOE's program to classify, process and dispose of Hanford tank wastes. We are also taking this opportunity to respond to the related November 4,1992 letter from Leo P. Duffy to Chairman Ivan Selin.

During the meeting, DOE presented revised tank waste inventory estimates based on current characterization data. The information indicated that the double-shell tank activity that would be grouted in near-surface vaults is withis earlier range estimates. However, Cs-137 quantities are now near the upper end of the range, rather than at the lower end as previously believed.

DOE i

indicated that uncertainties associated with the activity estimates remain because of the limited sampling and analysis to date.

In presenting its current plans for waste management, DOE outlined its intention to complete, by March 1993, a broad reevaluation of various l

treatment options for both single and double-shell tanks.

These options include a new facility to be used to separate radionuclides for repository disposal of high-level radioactive waste (HLW).

As you recall, NRC indicated to DOE, in 1989, its agreement that the criteria l

DOE used for classification of grout feed as low-level waste were appropriate.

i I

and, consequently, that the grout facility for disposal of double-shell tank waste would not be subject to our licensing authority (R. Bernero letter to A.

Rizzo, September 25, 1989).

This reflected our understanding that DOE would segregate the largest practical amount of the total site activity attributable to "first-cycle solvent extraction, or equivalent" for disposal as HLW, leaving behind only a small fraction of moderately radioactive material.

The Commission has recently completed its review of a rulemaking petition from the States of Washington and Oregon on the subject of the double-shell tank wastes and has indicated in the enclosed petition denial that it would regard the residual fraction as " incidental" waste provided that the waste: (1) has been processed (or will be further processed) to remove key radionuclides to the maximum extent that is technically and economically practical; (2) will be

.)

f incorporated in a solid physical form at a concentration that does not exceed the applicable concentration limits for Class C low-level wasto as set out in 10 CFR Part 61; and (3) will be managed, pursuant to the Atomic Energy Act, so that safety requirements comparable to the performance objectives set out in 10 CFR Part 61 are satisfied.

It is therefore essential, in the light of this position, that DOE's present reevaluation of waste tank remediation options, and subsequent periodic evaluations as may be conducted, include the application of these principles.

We recognize that there may be significant economic, programmatic, and safety factors affecting the remediation program, but the consideration of such factors as they may relate to the possible jurisdiction of NRC should be made clear.

We request that you keep us informed of the progress of your ongoing

)

reassessment and of relevant technical information including, but not limited l

+

to, your tank waste treatment plans and the analytical results for tank wastes i

that are proposed to be sent to the grout facility.

If it becomes apparent that any wastes may be subject to NRC licensing, it will be necessary to determine what form of pre-licensing interactions, analogous to repository site characterization, would be necessary to determine the appropriate disposition of these wastes.

l I trust that this letter, and the enclosed petition denial, provide the j

information requested in Leo P. Duffy's November 4, 1992, letter.to Chairman Ivan Selin, regarding NRC's intended response to the rulemaking petition by the States of Washington and Oregon.

If you have any further questions, i

please feel free to contact me, at 301-504-3352, or B.J. Youngblood, Director of the Division of High-Level Waste Management, at 301-504-3404.

Sincerely, l

j Robert M. Bernero, Director r

Office of Nuclear Material Safety l

and Safeguards l

}

j

Attachment:

1 As stated cc:

J. Anttonen, DOE J. Bartlett, DOE 3

L. Duffy, DOE I

l D. Duncan, EPA R. Stanley, Washington State J. Franco, Oregon State l

R. Jim, YIN 1

'8

. -,. -. - - - ~

-l p

t i

W ENCLOSURE 3 9

Notice of Receipt of a Petition for Rulemaking from The States of Washington and Oregon (55 FR 51732)

I i

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i 4

51732 tenerat Register / VcL 55. N2. 242 / Monday. December 17. 1990 / Proposeu stut:s for at lezst 3 yeirs. unless a longer Freedom cfInform2 tion and Nuclest Wasta policy Act (NWpA) 42 retention time is required by part 75 of Publications Services.OfLee of U.S.C.10101 (12) gives the Commission l

this chapter.

Administration. U.S. Nuclear Regulatory the authority to define whether wastes (2) Records that must be maintained Commission. Washington, DC 20555.

are " highly radioactive material" or l

pursuant to this part may be the original Fon runrwen aeronesarios cowracT:

" solids derived from [ liquid reprocessing

{

or a reproduced copy or a microform if Michael T.14sar. Chief. Rules Review wastes] that contam fission products in such reproduced copy or microform is Section. Regulatory Publications Branch. sufficient concentretions."

• duly authenticated by authortred Division of Freedom of Information and According to the petitioners.

l personnel and the microform is capable Publications Services. Office of legislative history reveals that Congress e

cf producing a clear and legible copy Administration. U.S. Nuclear Regulatory intended the Commission to license after storage for the period specified by Commission. Washington.DC 20555 defense reprocessing tank wastes at the Commission regulations.He record Telephone:301492-7758 or Toll Free:

point oflong-term storage or disposal.

may also be stored in electronic media 8N De petitioners note that low fraction with the capability for producing, on somet.EssperAny peronssattom:

wastes resulting from pretreatment of demand, legible, accurate, and complete tank wastes are scheduled to be grouted records during the required retention Petitioners Request and disposed ofin land-based grout l

period. Records such as letters.

He petitioners request that the vaults on the Hanford site in accordance dra wings. and specifications must Commission amend to CFR 00.2 to with regulations developed under the i

melude all pertinent information such as clarify the definition of"high-level Resource Conservation and Recovery stamps. Initials, and s'anatures.

radioactive waste"(HLWj and the Act (RCRA). ne petitioners believe that (3) The licensee shab maintam definition of "In.W facility." The if such westes are HLW they clearly fa!!

edequate safeguards against tampering petitiontas request that the under the Commission's licensing i

with and loss of records.

Commission-jurisdiction under section 202 (4) of the Dated at Rockville. Maryland, this tith day

1. Establish a process to evaluate the Energy Reorganization Act of1974.s of December 1990.

treatment of defense reprocessing For the Nuclear Regulatory Commission wastes in tanks so that such wastes will Reasons for Petition samuel J. Chuk.

not be considered HLW if. prior to disposal each tank is treated to remove ne Petitioners point out that the "e"

the largest technically achievable present definition of HLW in the IFR Doc. 9NM37 Filed 12-14-e0: E45 am]

amount of radioactivity; and Commission's regulations is based upon

2. Require that the best produced by the source of the waste. According to residual radionuclides, together with the Petitioners, while HLW may be i

10 CFR Part 60 heat of reaction during grovt processing waste,,ntiated from " incidental diffeir

~

, the legal basis for doing so must (if employed as a treatment technology),

e

[ Docket No. PRLl40.-41 will be within limits established to derive from NWpA. specifically 42 ensure that grout meets temperature U.S C.10101 (12) (A). which refers to a l

Radioactive Waste" requirements for long-term stability for

" sufficient concentrations" criterion for

]

Cennition of the Terrn "High-Level low-level waste forms.:

classification.* The petitioners claim ActNcy: Nuclear Regulatory The petitioners seek clarification that that incidental waste source is Commission.

the disposal of wastes treated to this impossible to ascerta, due to mixing in m

AcTioec Petition for rulemaking.

standard is not disposal ^.n a "HLW defense tanks and the unavailability of facility" as presently defined in to CFR accurate records.They point cut. in j

suvuAny:ne States of Washington 601 ne petitioners state that should particular, that over the last 45 years, j

i and Oregon request that tne the Commission regard to CFR Part 50, mixing of wastes from different sources l

Commission revise the definition of the Appendix F es the controlling regulation has complicated the classification of term "high-level radioactive waste" so to determine whether a waste is HLW.

Hanford tank wastes, including double-es to establish a procedural framework that the Commission also modify that shell tank wastes. Moreover, the j

and substantive vandards by which the definition as proposed in the petition.

petitioners state that radionuclide i

inventories are estimates and subject to l

Commission will determine whether 888I 'th'I* I "

reprocessing waste. including in substantial uncertainty. Variables i

particular certain waste stored at the The petitioners state that this contributing to the uncertainty include U.S. Department of Energy's site at rulemaking is based in part. on section incomplete and inaccurate records, the llanford. Washington, is high-level 202 cf the 1974 Energy Reorganization lack of actual fuel and/or waste radioactive waste and therefore subject Act, which defines Commission analyses, and an incomplete to the Commission's licensing authority.

euthority over retrievable surface understanding of the chemistry and DAtts: Submit comments by March 28.

storage facilities and other facilities 1991. Comments received after this date authorized for the express purpose of

. For.n.r vs or ih. pmn.mn..e.

permamn will be considered if it is practical to do subsequent long-term storage of high-or ush4,vei F dio.cime wesie-' t.dvance nones so. but consideration cannot be given level radioactive waste Fenerated by of proposed niemakins s2 m sine. rebr.ry 27 d'""*"'*****8d"***'"'

except as to comments received on or DOE which are not used for, or are Part

'8878 ""ed."mendmenu to to cn part st. s'3 m (pmpo before this date.

f. research and development activities.

inom my is svea. r.n.1 emendmenis to to cm The petitioners further state that the p.ri st 5. m ::s e. w :s. sss9L r

Acontssts-Submit comments to:

Congressional definition of the term a li shound be nowd howevet thei the Secretary. U.S. Nuclear Regulatory high-level rediosetive we:te" in the comm.m. h.,ur.d cten any ir the f.ohi. m Commission. Washington. DC 20555.

of the e pes de.cribed in.ecima zo:ML r

Attention: Docketing and Service mow ha-aer. the Commemon

• mement a'

' C" ' "

• n"'d " '"" "I

'*"h'*

s2 ra seas. Febru.ry 27. 29st. ih.i ct...ibc non Branch For a copy of the petition, write:

m. ten."l. and hquid w.sie th.'i.ets p.s a ochd under the cHed pron. son *would be irrelew nt in Rules Review Section. Regulatory m.

and i. e for...ie ri..non.ad determinma -hether.uch *.s'e mu.' te disposed Publications Branch. Division of immob42 non.

or m hwn.ed d po

f. cane.-

i

Federal Reldstar / Vol. 55, No. 242 / Monday. December 17. 1993 / Proposed Rrrlee 51733

"?

pathwsys in seprocesing cnd waste

2. A new Appendix-A is added to contemphte that p rticular treatment processes.The petitioners part 60 to read as follows:

determinations of how specific wastes l

assert that neither DOF. the wiH be e.W ander these

@rdia A-hocedum forDerennimire Commission, por the petitioners have Lgert TedmidWiemMe Treatment general standards can be left to adequate idormation regarding the individual adsdicative proceedinga.

l r2dioactive portion of the double-shell

',','l,"'d' *,',

,"g "

ne petitioners beheve that the-i i

tink waste.The petit oners believe that waste camponents is truered. pretreated or amendments suggested by their petition I

the Commission needs to establish both blended pnar la permanen* disposal DOE would protect human health and the a procedure and a standard for making shall submit the fattowing to the Cormidon environment. would facilitata an evaluation as to whether waste are, and the nGecwd state and puhash ta the meatti:gful C-W involvement in HLW on a tank-by-tank basis.

Teded Ragatar.

the ultimata disposal and/or long-terin l

ne petitioners assert that the -

1. Data on physical characteristics of the storage of Hanford double-sheH tank proposed amendment is essential to

• • ste. includina density and percent solida.

waste, and would support implementation of the Hanford Federal provide protection of the futun health ch m

r rgy a

ysis, and safety of the crtizens of the Pacific notal alpha, total betak Facility Agreement and Consent Order.

Northwest.

2. Volumetric data on untreated wasta.on Request for Comments volume changes expected as a result of m ars. N [ d treatment. pretreatment or blen6ng activities Commenters are invited to address,

%2 petitioners suggest that the and the expected volume of the final wasta amortg other things, the desirability and definitions of"Hightevel Radioactive imn (gmut.sehente or ntnned weetek appropriateness of(1)The proposed Waste" and "HLW Tacihty"in 10 CFR

3. A desenpoon of the treatment processe*-

substantive standard (" remove the indu&ng an ennated mass Wee for each largest technically achievable amount of C0.2 be revised and a new appendix A be added to to CFR part 00. The specific 7,p' N"on.

radioactrvity on a tank-by-tank basis"),

co or language suggested by the petitioners wate co'uponents before and after (2) the proposed procedure for applymg re:ds as follows:

treatmeuc that standard. and (3) an amendment to

1. In 100.2. the de initions of "High 4.The proposed smut or salacrete 10 CFR part 60 (in view of the scope 8

I.evel Radioactive Waste" and "HLW formniation, together with heen trewfer defined in to CR 00.1) vis-a.vis the calculatin for the waste fornc and adoption of a new Part or amendment to l

Facility" are revised to read as follows:

5. To the degree possible treatment system some other existing Part of NRC 1

fm2 Definitions.

models similar te the attached gmut system regulations' l

mode! shouldbe used to preser i data and describe processes.

Dated at Rockville. Maryland this nth day High-levelrodioactire weste or HLW At least six morrths before a tank of of December u90.

means:(1) Irradiated reactor fuel. [2]

defense reprocessing tank westes containmg For the Nudear Regulatory Commission.

Liquid wastes resulting from the high-level waste components is pretreated.

Samuel ). CMIC operation of the first cycle solvent treated or blended pnor to pennanent Secretary of the Commission.

extraction tystetA or equivalent, and the disposal to near-surface or deep geologic i

concentrated wastes from subsequent lackhties. the Commission shall require a

[F'R Doc.90-29438 nled 12-14-ca. EL45 aml i

I extraction cycles. or equivalent, in a heense undersection 20441 of the Energy suaso coot nema facility for reprocessing irradiated Reorgaruzation Act. 42 USC. 5642 (4) unless the Commissu on a tanMy-tank bus reactor fuel, and (3) Sohds into which DEPARThlENT OF COMMERCE such liquid wastes have been converted; DO has 1 trated ht the provided that if, prior to dirposal, largest technicany achieveble armount of ForelgrwTrade Zones Board defense reprocessing tank wastes are activity from the tank will be isoleted for trested to remove the largest technically vitnncation pnor to permanent disposah and 15 CFR Part 400 l

achievable amount of radioactivity on a

2. nat use of permanem shallow land l

tank-by-tank basis (as provided in daposal for the tank weste will be lirruted to

! Docket No. 21222-0262) l appendix A ). the treated residual the incidental waste portion. which is the fraction shall be considered an actmty nmaming a ter the larFMs RIN 0625-AA04 tednicaDy adumW amount of actmty hu incidental waste and therefore not been removed; and Foreigr> Trade Zones b the United HLW.

3. net the treatment pretreatment and States HLWfocill y means a facility subject blendmg processes descnbed in the DOE to the licensing and related regulatory submittal will achieve the stated separation Actucn ForeigrLTrade Zones Board, authority of the Commission pursuant to and/or recovery eff ciencier. and InternationalTrade Administration, sections 202[3] and 202(4) of the Energy

4. That the treatment. pretreatment and Commerce.

Reorganization Act of 1974 [a8 Stat blen&ng processes destnbed in the DOE 1244).s submittal are pmven. cost effective. state-of.

ACTIOR; Notice of proposed rulemaking; l

the art prowsses, which are capable of extension of cornment period.

I removmg the largest technically schrevable

$tJMMARE In response to requests from i

smount of setmty.

interested parties. the period for public i

s ne, are Dot -f.cil,i.e. u.ed pnm. ray for en.

Petitioners

• Conclusions comment on the further amendments to receipt and storage of hgMewel radioective ma.ic.

re aris trwn acimne tum.ee sneer..a Ac' The petitioners state that rulemaking the proposed revisions to the regulations I

aINn procedures are necessery to determine of the Foreign-Trade Zones Board are ac e

the nature of the incidental, lesser regarding foreign-trade tones m tf the espwee povo.e of notmequent long-tem siorne of h,ueeet r.o.o.cuve..etc.,,ner,ied radioactive fraction of wastes and that United States published in the Federal l

t;y (DOrl. whid are not imed for. or are pan of.

rulemaking is appropriate to establish a Register on November 20.1990 (55 FR i

Ni or$.pIIIe f[ '

procedural framework and substantive 48446) is extended to February 1,19n.

o I

wwe. resuhms Irw. twaarnent or oefen..

standards by which particular wastes Daits: Comments must be received on l

rep'ocessmg wastes are not Hl.W facibhe, will be assessed. The petitioners or before February 1,1991.

d 1

e

l t

i i

h n

ENCLOSURE 4 i

i Minutes of Meeting Between NRC Staff and Representatives of the State of Washington I

f[

o UNITED STATES g

NUCLEAR REGULATORY COMMISSION y

T g

,s c

wAssincrou o.c.20sss

~ 11 5

g N%....J MEMORANDUM FOR:

The Record FROM:

Michael T. Lesar, Chief Rules Review Section Regulatory Publications Branch Division of Freedom of Information and Publications Services Office of Administration

SUBJECT:

FEBRUARY 7, 1990 MEETING CONCERNING THE STATE OF WASHINGTON'S PETITION FOR RULEMAKING DATED JANUARY 2, 1990 On February 7, 1990, members of NRC's technical, legal, and administrative staff met with representatives of the State of I

Washington to discuss the petition for rulemaking submitted by the State of Washington on January 2, 1990, concerning the classification of high-level radioactive waste at the U.S.

l Department of Energy's Hanford site.

(See Enclosure A for a list of attendees.)

The purpose of this meeting was to resolve the issues raised by the NRC concerning this petition in its letter to the petitioner dated January 24, 1990.

The NRC explained its inability to docket the petition because it could not make the determination that the petition contained a

" general solution to the problem."

The difficulty in maki"g this determination was a result of the petition's failure to identify clearly the specific problem which is to be addressed.

As a result, the NRC could not determine that the petition presents a general solution to the problem.

The NRC requested that the petitioner either submit an amendment to the petition or resubmit a new petition in lieu of the petition that responded to our concerns.

In addition, the NRC suggested that the petitioner's request should be made in terms of an amendment to Part 60 rather than to Appendix F to Part 50.

The NRC also suggested that the petitioner provide the specific proposed text the petitioner believes necessary to solve the identified problem.

The petitioner explained that it is concerned over the lack of effective oversight concerning Department of Energy (DOE) decisions concerning the extent and type of pretreatment that is to be given to the storage tanks at Hanford.

The petitioner believes that the pretreatment process would result in what is essentially a new waste stream, incidental waste, and that i

O

~%

e l

1 The Record 2

characterization of that waste stream should occur through a j

process that ensures public review.

Furthermore, the petitioner believes that some form of NRC approval of proposed DOE action is i

necessary on a tank-by-tank basis to ensure that the proposed l

pretreatment for that tank is appropriate considering its contents.

The petitioner indicated its desire that NRC review and approval occur prior any final decision so that the opportunity for meaningful intervention on a timely basis exists.

t The NRC indicated that it may not have the jurisdiction, under i

statute, to respond to the petitioner's concerns.

NRC involvement, even though the agency may be sympathetic to the i

State's goals, must reflect the responsibilities and authority that have been given the agency by law.

The NRC requested that l

the petitioner address the jurisdictional question in its i

resubmitted petition to indicate why the petitioner believes NRC has the legal and jurisdictional authority to respond favorably to the petitioner's request.

The NRC indicated that it was comfortable with the percentage of key radionuclides that would be disposed of as low-level waste l

when the tanks were grouted under DOE's proposal.

However, the NRC did request additional information from DOE so that it would have the additional data necessary to validate the earlier decision.

NRC also indicated that DOE outlined its pretreatment strategy in the EIS and that it was subject to public scrutiny at that time.

The petitioner believes that the information provided by DOE in j

the EIS is too general and potentially misleading.

The l

petitioner believes that as more specific information concerning the composition and characteristics of the wastes becomes available, the process should be subject to review and public

' rutiny on a tank-by-tank basis.

The petitioner is concerned

.nat various influences may pressurize DOE into maximizing the amount going to grout.

The petitioner believes that DOE

)

information dissemination, which it characterized as a yearly status report, would not be meaningful or effective.

The NRC discussed rulemaking as an effective approach to solving this situation.

As explained by the NRC, rulemaking is not generally used in making the types of case-by-case determinations envisioned by the petitioner.

Individual case or site decisions are usually made through a more adjudicatory manner and result in a licensing type of action.

Rulemaking examines a class of future situations for which some generic solutions provide a framework for a particular course of action.

The NRC suggested that the petitioner consider making its revised proposal in a manner that would address a broader universe.

For example, rather than focusing on the waste tanks at Hanford, the

'\\

b 3

The Record I

petitioner should present its case in terms of seeking a generic definition and solution to the problem of characterizing and regulating " incidental waste" regardless of the site or activity.

The State of Washington agreed to resubmit a new petition for rulemaking in place of the petition for rulemaking dated January

[

The petitioner indicated its willingness to address the 2,

1990.

concerns expressed by the NRC and that it would attempt to clarify the statement of the problem and would present more specific language to indicate its proposed solution.

This completes and closes action on the petition for rulemaking 1990.

submitted by the State of Washington dated January 2,

/

Michael T.

Lesar, Chief Rules review Section l

Regulatory Publications Branch i

Division of Freedom of Information and Publications Services i

Office of Administration

Enclosure:

As stated i

i 4

I I,

I 4

MEETING BETWEEN THE NRC AND THE STATE OF WASHINGTON FEBRUARY 7, 1990 List of Attendees Michael T.

Lesar NRC/ADM (301) 492-7758 James R. Wolf NRC/OGC (301) 492-1641 Chad Glenn NRC/NMSS (301) 492-0567 Dan Fehringer NRC/NMSS (301) 492-0426 i

Richard Bangart NRC/NMSS (301) 492-3340 John Greeves NRC/NMSS (301) 492-3344 Rosetta Virgilio NRC/GPA (301) 492-0325 Roger Stanley Washington State (206) 438-7020 Dept. of Ecology Don Provost Washington State (206) 459-6718 Dept. of Ecology Jeffrey S. Myers Washington State (206) 459-6134 office of Attorney General

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e

4 ENCLOSURE 5 The States' Petition to Samuel J. Chilk, Secretary, U.S. Nuclear Regulatory Commission-d

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DOCKETED usunc

'~

STATE OF WASHiNCTON

'90 JJL 31 P3:05 DEPARTMENT OF ECOLOGY cos) as9sm ontrr>a. wasngton 9asowss sua stop ev-1s r_.

July 27, 1990 Mr. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 ATTENTION:

Chief, Docketing and Service Branch

Dear Mr. Chilk:

Enclosed for your consideration and for action by the Commission is a petition for rulemaking (under 10 CFR, part 60.2) regarding the classification of high-Note that level radioactive vastes at U S. Department of Energy facilities.

this petition constitutes a resubmittal by the parties following discussions Please also refer to our initial submittal dated January 2, with NRC staff.

1990, and to my November 17, 1989, notice of intent which was addressed to Chairman Kenneth M. Carr of the Commission.

Please note that the enclosed petition represents the combined views of both We look forward to working with you and Commission Washington and Oregon.

staff on this very important issue.

Sincerely, uh Te Husseman Assistant Director Waste Management Enclosure Oregon and Washington Congressional Delegation cc:

Dan Silver John Wagoner David Yaden Cecil Sanchey

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS PETITION FOR RULEMAKING Al!D BEOUEST FOR INSTITUTION OF A RULEMAKING PROCEEDING The states of Washington and Oregon

(" Petitioners") hereby respectfully request and petition the Nuclear Regulatory Commission ("the Commission") to exercise its rulemaking of fer adequate opportunity for public comment, and authority, adopt a reculation concerning classification of Hanford high-level Edioactive vastes currently stored in retrievable, surface, storage facilities.

Procedures governing the rulemaking process are found at 5 U.S.C.

Section 533 and 10 C.F.R. Section i

2.800-2.809.

I.

PROPOSED RULES The petitioners ask that the Commission amend 10 C.F.R. part to clarify the definition of "high-level radioactive waste" 60.2

("HLW") and the definition of "HLW facility."

The petitioners request the Commission to:

1. Establish a process to evaluate the treatment of defense reprocessing wastes in tanks so that such vastes will not be considered HLW if, prior to disposal, each tank is treated to remove the largest technically achievable amount of radioactivity.

2. Require that the heat produced by residual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment technology), will be within limits established to ensure that grout meets temperature requirements for long-term stability for low-level waste forms.

The petitioners seek clarification that the disposal of wastes treated to this standard is not disposal in a "HLW f acility" as presently defined in 10 C.F.R. Part 60.2.

The proposed text of this amendment is attached as Appendix 1.

Should the Commission regard 10 C.F.R. Part 5'0, Appendix F 4

as the controlling regulation to determine whether a waste is HLW, the petitioners request that the Commission also modify that definition as proposed herein.

The Commission has, on different occasions, suggested that this petition for rulemaking address

both of the definitions contained in Title 10 of the Code of This petition is intended to address the Federal Regulations.

definition of HLW applicable to the determination of whether a waste should be considered HLW for licensing purposes at the time of disposal or long-term storage.

i II.

GROUNDS AND INTEREST This rulemaking petition is based, in part, on Section 202 Energy Reorganization Act, which defines Commission of the 1974 authority over retrievable surface storage f acilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive vaste generated by the (now Department of Energy) which are not used Administration, This for, or are part of, research and development activities.

petition seeks clarification as to whether certain vastes are defined as high-level radioactive wastes under various regulatory definitions and the Nuclear Waste Policy Act, thereby subjecting such vastes to the Commission's licensing authority.

The grounds and interests of the state are based on the following facts and issues.

1.

HLW was first defined in 1970 by the Atomic Energy Commission ("AEC") in terms of the source of the material rather than by its hazardous characteristics.

The AEC defined HLW as:

i those aqueous wastes resulting from the operation of the first cycle solvent ' extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent in a facility for.~ reprocessing irradiated reactor fuels.

35 Fed. Reg. 17530, 17 5 3 2, Nov. 14, 1970.

10 CFR Part 50, Appendix F.

The present definition utilized by the Commission in 2.

determining whether a vaste to be disposed of in a geologic is found at 10 repository is "high-level radioactive waste" CFR Part 60.2.

This rule provides:

"High-level radioactive waste" or "HLW" means:

(1) Irradiated reactor fuel, (2) liquid wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for 4

s PETITION FOR RULEMAKING - 2 j

reprocessing irradiated reactor fuel, and (3) a been solids into which such liquid wastes have converted.

facility" means a facility subject to the "HLW licensing and related regulatory authority of the and 202(4)

Commission pursuant to Sections 202(3)

(88 Stat of thg Energy Reorganization Act of 1974 1244).

The Congressional definition in the NWPA states:

3.

The term "high-level radioactive waste" means--

(A) the highly radioactive material resulting from

.~

including the reprocessing of spent nuclear fuel, liquid waste produced directly in reprocessing and any solid material derived from such liquid waste i

that contains fission products in sufficient concentrations; and (B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.

42 U.S.C. S 10101(12).

Commission thus has the authority to define whether The wastes are " highly radioactive material" or are " solids that contain derived from (liquid reprocessing wastes) 42 U.S.C.

fission products in sufficient concentrations."

S 10101 (12).

I intended the Legislative history reveals that Congress 4.

Commission to license defense reprocessing tank wastes at the point of long-term storage or disposal.

H.

Rep. No.

785, pt.

1, 97th Cong., 2d Sess., 38, Aug. 20, 1982.

Low fraction wastes resulting from pretreatment of tank wastes are scheduled'to be grouted and disposed of in (RCRA regulated) land-based grout vaults on the Hanford reservation.

If such wastes are HLW, they clearly fall j

These are DOE " facilities used primarily for the receipt resulting from and storage of high-level radioactive wastes activities licensed under such Act (the Atomic Energy Act)" and

" Retrievable Surface Storage Facilities and other facilities i

authorized for the express purpose of subsequent long-term storage of HLW generated by DOE, which are not used for, or are i

part of, research and development activities.

l PETITION FOR RULEMAKING - 3

• l

\\

4 the Commission's licensing jurisdiction under under theof the Energy Reorganization Act of 1974.

6 S 202(4) mixing of wastes from different Over the last 45 years, sources has complicated the classification of Hanford tank 5.

Moreover, including double-shell tank wastes.

radionuclide inventories are estimates, and subject to

wastes, substantial uncertainty.

Variables include incomplete and the lack of actual fuel and/or waste inaccurate records, and incomplete understanding of the chemistry and

analyses, pathways in reprocessing and waste treatment processes.the Commissio Thus, neither USDOE, adequate information regarding the radioactive portion of the double-shell tank waste.

USDOE plans to pretreat the majority of Hanford double-shell I

to partition wastes into a "high-level" 6.

tank waste in orde-portion for vitrification and a low-level or " incidental" at the portion which will subsequently be disposed of Hanford Grout facility (currently under construction).

USDOE estimates that from a minimum of 13,000,000 curies to curies will be disposed of at the Grout more than 21,000,000 facility.

The petitioners have a strong vested interest in the safe, i

There 7.

permanent disposal of Hanford high-level tank wastes.concerning the ability of is great uncertainty at this time, USDGE to demonstrate that the largest technically achievable l

amount of activity from each tank can be or will be isolated for vitrification.

This is evidenced by USDOE's (between 13,000,000 and exceptionally large uncertaintyconcerning residual activity scheduled 21,000,000 curies) for surface disposal via grout.

(Table 1 from Enclosure 1 of a March 6, 1989 letter from Mr. A.J. Rizzo to Mr. Robert J

M. Bernero.)

)

incidental wastes have been deemed appropriate f or 8.

To date, disposal in grout, as provided in the Hanford Federal Consent Order and consistent with Facility Agreement and lower hazard from radioactivity.

Grout vault RCRA, due to if design is protective of human health and the environment heat produced L residual radioactivity, together with heat from reactions during grout process, is kept generated within defined limits which ensure that grout vaults meet temperature standards for long-term stability for low-level forms.

I; s;*

The present definition of HLW in the Commission's 9.

Incidental waste regulations and the NWPA is source based.

source is impossible to ascertain due to mixing in defense tanks and; unavailability of accurate records.

waste from a Radioactive contamination in incidental waste may be 4

"HLW" source, even though the amount of activity is PETITION FOR RULEMAKING - 4 e

comparable to LLW, and human health and the environment 3

Thus, unless the protected adequately by grout disposal.Cor. mission modifies the pr f acility," incidental wastes must be considered HLW because of of their source and would be required to be disposed according to S 8 of NWPA.

42 U.S.C. S 10107.

10.

The petitioners believe,the Commission has the legal authority and obligation to promulgate regulations concerning the classification of defense reprocessing and that Commission staff are uniquely vastes in tanks qualified to evaluate the appropriateness and effectiveness The rule amendment various pretreatment processes.

of suggested above would authorize the Commission to ensure including Hanford double-shell tank

vastes, that such are subjected to safe and appropriate methods of

wastes, pretreatment.

Because the definition of HLW has heretofore been based 11.

solely on the source of waste, the legal basis for finding incidental wastes resulting from the treatment of that must def ense high-level wastes in tanks would not be HLW, derive from 42 U.S.C. 5 10101 (12) ( A), the NWPA definition NWPA definition combines a source-based of HLW.

The definition and a quantitative-based definition for solid wastes derived from liquid reprocessing wastes.

Characterizing incidental waste disposal in grout vaults as is legally supported only if such wastes would not non-HLW be HLW under the NWPA definition.

Thus, if solid, grouted vastes which are derived from defense HLW do not contain

" fission products in sufficient concentrations," they could be considered incidental vastes and not HLW.

The petitioners believe that the Commission needs to establish both a procedure and a standard for making this evaluation on a tank-by-tank basis.

These are provided for in the petitioners' suggested rules.

prevailing have an interest in and a The petitioners 12.

responsibility for the protection of the future health and The rule safety of the citizens of the Pacific Northwest. essential to provide this amendment suggested here is protection.

III.

STATEMENT IN SUPPORT Radioactive Wastes From Defense Reprocessina Operations are A.

Hich-Level Wastes defined in the Energy Reorganization The tern HLW is not The starting point in defining HLW for ERA purposes Act (" ERA").

is found in existing regulations adopted by the Atomic Energy PETITION FOR RULEMAKING - 5

In this regard, Congress can be' presumed to 4

Commission in 1970.the existing regulatory definition when it have been aware of The existing definition used the term HLW in Section 202 of ERA.

in 1970 (10 CFR Section 50, Appendix F),

adopted by the AEC The definition focuses on the process by which HLW is produced.

in 10 CFR Part 60.2 also focuses on the process by which HLW is produced.

It is clear that defense re' processing tank wastes, i,cluding double-shell tank wastes at Hanford, were considered HLW when the ERA reveals The legislative history of the ERA was passed.

at that time to subject defense facilities to Congress' intent NRC oversight.

In fact, the Congress recognized that HLW was leaking from temporary AEC tanks at various facilities and intended to subject such vastes to NRC licensing at the point of application of a permanent waste management solution.

Moreover, the House Committee on Energy and Commerce found that " existing law with respect to atomic energy defense activities is unchanged and facilities for the disposal of waste from by this Act, def ense activities remain subject to licensing by the Nuclear Regulatory Commission."

H. Rep. No. 785, pt.

1, 97th Congress, 2d Sess., 38, August 20, 1982.

This issue was considered in USDOE's Final EIS on defense The Environmental Impact Statement considered wastes at Hanford.

these defense various alternative methods f or dealing with wastes.

USDOE recognized that:

Further, Section 202 of the Energy Reorganization Act requires commission licensing of those DOE facilities authorized for the express purpose of long-term storage of high-level radioactive waste which are not used for, or are not a part of, research and development activities.

Therefore, to the extent that any decision based on this final EIS requires defense high-level waste to be placed in a repository constructed under the Nuclear Waste Policy Act, or a facility subject to licensing under Section 202 of the Energy Reorganization Act such a repository or f acility would be subject to licensing by the Commission.

Final Environmental Impact Statement, Disposal of Hanford Defense High-Level, Transuranic and Tank Wastes, vol.

I, 6.11.

December 1987.

In summary, we, the petitioners, find that under existing including Hanford double-law, d_efense_ reprocessing tank waste,A letter from the Commission cannot shell tank waste, is HLW.

law.

Consequently, change the status of these wastes under the long-tern storage or disposal of such tank waste is currently subject to licensing by the Commission.

However, the rule PETITION FOR RULEMAKING - 6

suggested here would authorize and require appropriate amendment of Hanford double-shell Commission oversight of the management but would allow, under certain circumstances, the tank wastes, avoidance of the admittedly cumbersome licensing process.

Petitioners believe that the rule amendment suggested would would facilitate protect human health and the environment, meaningful Commission involvement in the ultimate disposal and/or and would long-term storage of Hanford double-shell tank waste, implementation of the Hanford Federal Facility Agreement support and Consent Order.

The Commission Has Historically SuoDorted a Tank-by-Tank B.

Analysis to Determine Whether Residual Wastes Are HLW The decision on treatment and disposal of tank wastes at Hanford has been discussed between DOE and the Commission for Through these discussions, the concept of an several years.

" incidental waste" was identified.

Moreover, both DOE and the Commission have attempted to demonstrate how the incidental waste concept would be applied to the tank wastes at Hanford.

Early in DOE and the Commission recognized that the these discussions, heterogeneity of Hanford tank wastes prevented a determination of whether the wastes were from the first cycle solvent extraction DOE and the Commission began an evaluation of process.

In 1988, 28 DST tanks.

DOE and the Commission agreed that two DSTs contained phosphate sulf ate waste (PSW), which does not arise See letter from Hugh f rom reprocessing and is clearly not HLW.

Thompson to Michael J.

Lawrenc,e, 7/11/88.

DOE and the L.commission also agreed that neutralized current acid wastes (NCAW) in two DSTs are HLW.

Id.

Finally, the Commission and DOE agreed to characterize the waste in tank 106AN, containing double shell slurry feed wastes- (DSSF).

See Meeting Minutes, DOE-the Commission meeting, 9/22/88.

The Nmmission recognized that it would be inappropriate to general ze the findings of this In a letter dated specific tank to an entire vaste ca cgory.

November 29, 1988, the Commission stated:

As a more fundamental comment on DOE's proposed approach, the staff had hoped that a determination of the classification of DSSF waste in tank 106AN might apply to the entire DSSF category.

We no lonaer believe that this is practical.

Information provided by DOE in our June 9 meetino indicates that individual.

DSSF tanks contain different suites of wastes.

Therefore, the documentation and. determination of waste classification would need to proceed on a tank'-by-tank basis."

Letter from Michael J.

Bell, NRC, to Ronald E.

Gerton, USDOE, dated Hovember 29,1988.

(Emphasis added).

I PETITION FOR RULEMAXING - 7

l The materials balance approach suggested by the Commission eradicate the problems caused by mixing of and DOE does not in tanks and-poor recordkeeping.

It merely glosses over the classification by attributing some wastes (destined for HWVP) wastes extraction process and attributing others y to the solvent to non-HLW sources. [he petitioners do not (destined for grout) believe that this attribution should be mate without an amendment which formalizes a process to the applicable definition of,HLW, for identifying those wastes which are inappropriate to classify This process must be done in a public manner to ensure as HLW.

confidence in the treatment process fully employed by DOE.

Public scrutiny is essential to building confidence that the treatneut standard suggested by the Commission and the petitioners is being met.

The petitioners' proposed treatment standard closely resembles the alternative approach suggested by the Commission.

See letter from Michael J. Bell to Ronald E. Gerton, 11/29/88.

It refines that approach by applying the concept on a tank-by-the admitted problems associated with tank basis to reflect mixtures of wastes in these tanks and uncertainty caused by poor recordkeeping.

Both the Commission and petitioners share the goal of ensuring that after the proposed treatment of tank wastes the maximum amount of radioactivity possible be routed to HWVP and ultimate geologic disposal.

The Standards to Evaluate Residual Wastes Should C.

be Determined by Rulemakinc Procedures Rulemaking procedures are necessary to determine the nature of the incidental, lesser radioactive fraction of wastes.

Rulemaking is appropriate to establish a procedural framework and substantive standards by which the Commission will determine whether a particular waste is or is not HLW.

Such a determination necessarily will require interpretation of statutory language in the NWPA and the formulation of agency tasks are well suited to rulemaking policy.

Both of these procedures where an agency seeks to approach foreseeable problems of general applicability.

See SEC v.

Cheney Corn., 332 U.S.

194, 202 91947); NLRB v. Wyman-Gordon Co., 394 U.S.

759 (1969); see also NLRB v.

Bell Aerospace Co.,

416 U.S. 267 (1974).

This proposal is particularly appropriate because it establishes a process and general standards by which particular wastes will be assessed.

Particular determinations of how specific wastes will be characterized under these general l

standards can be left to individual adjudicative proceedings.

PETITION FOR RULEMAKING - 8

-l

e Rulemaking procedures are appropriate to provide the maximum and scrutiny to HLW treatment and j

degree of public involvementThe controversial evolution of the defense disposal decisions.

waste program and the equally controversial history of the deep geologic repository program demonstrate a keen public sensitivity and awareness of HLW issues.

The public's interest and concerns should be addressed ina constructive, open fashion, which rulemaking is specifically designed for.

initiation of rulemaking procedures will demonstrate to The the public the regulatory agencies' commitment to accountability.

Decisions regarding how HLW should be handled and disposed of As an have direct impact upon the public and the environment.

the Commission agency charged with upholding the public interest, should avail itself of the opportunity to demonstrate that its are consistent with its statutory mandate, well reasoned actions Rulemaking proceedings are the and benefit the public interest.

optimal vehicle by which the Commission can satisfy the public a'nd disposal of defense HLW in tanks is being that treatment carefully scrutinized in a protective manner.

i PETITIONERS:

For the State of Oregon For the State of Washington

' u R-6 Spy [

David Yaden

/

j Terry Susseman i

Assistant Director

/

Director Oregon Department of Energy Waste Management

/

/

Washington Department Dated:

7/)#/ 9//

of Ecology i

1\\10 90 Dated:

1 PETITION FOR RULIEAKING - 9 a

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APPENDII 1 adoption of the following language to The petitioners suggest resolve the concerns expressed in the foregoing Petition for Rulemaking:

Amended 10 C.F.R. Part 60.2:

"High-level radioactive waste" or "HLW" means: (1)

Irradiated reactor fuel, (2) liquid wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated subsequent extraction cycles, or wastes fromin a f acility for reprocessing irradiated equivalent, reactor fuel, and (3) solids into which such liquid wastes have been converted; provided that if, crior to defense reprocessine tank vastes are treated

disposal, to renove the larcest technically achievable amount of radioactivity on a tank-by-tank basis (as provided in Appendix A), the treated residual fraction shall be considered an incidental vaste and therefore not HLW, "HLW facility" means a facility subject to the the licensing and related regulatory authority of and 202(4) of commission pursuant to Sections 202 (3) of 1974 (88 Stat 1244) gergy Reorganization Act the E i

I These are DOE "f acilities used primarily f or the receipt resulting from and storage of high-level radioactive wastes and

[the Atomic Energy Act]"

activities licensed under such Act Surface Storage Facilities and other facilities i

I

" Retrievable of subsequent long-term authorized for the express purpose storage of high-level radioactive wastes generated by.[ DOE),

which are not used for, or are part of, research and development Facilities for the lono-term storace or disposal of activities."

incidental wastes resultino from treatment of defense reprocessino tank vastes are not HLW facilities.

1 PETITION FOR RULEMAKING - 10

f NEW SECTION APPDIDIX A i

PROCEDURE FOR DETERMINING LARGEST TECHNICALLY ACHIEVABLE TREATMENT I

Part 60 Appendix A, Waste Classification Procedures for 10 C.F.R.

Treated Defense Reprocessing Tank Wastes.

least one year before a tank of defense reprocessing containing high-level waste components is treated, l

At USDOE shall l

vastes pretreated or blended prior to permanent disposal, i

submit the following to the Commission and the affected state and public in the Federal Register:

r Data on physical characteristics of the waste, 1.

including density.and percent solids, inorganic and i

organic constituents, and radiochemistry (e.g., gamma energy analysis, total alpha, total beta);

Volumetric data on untreated waste, on volume changes 2.

treatment, pretreatment or i

expected as a result of blending activities and the expected volume of the final vaste form (grout, salterete or vitrified waste);

including an 3.

A description of the treatment processes, an estimated estimated mass balance for each process, per cent recovery for each separation, and concentrations of major vaste components before and j

after treatment; f

formulation, together The proposed grout or salterete 4.

with heat transfer calculations for the waste form; and i

To the degree possible, treatment system models similar

~

5.

to the attached grout system model should be used to present data and describe processes.

At least six months before a tank of defense reprocessing tank wastes containing high-level waste components is pretreated, treated or blended prior to permanent disposal in near-surface or a license deep geologic facilities, the commission shall require under Section 202(4) of the Energy Reorganization Act, 42 U.S.C.

S 5842(4) unless the Commission, on a tank-by-tank basis, determines the following:

USDOE has demonstrated that the largest That 1.

technically achievable amount of activity from the tank will be isolated for vitrification prior to permanent disposal; and t

i PETITION FOR RULD'JdING - 11 e

2

2.

That use of permanent shallow land disposal for the J

tank waste will be limited to the incidental waste which is the activity remaining after the

portion, largest technically achievable amount of activity has l

been removed; and i

That the treatment, pretreatment and blending processes 3.

achieve the described in the USDOE submittal will stated separation and/or recovery efficiencies; and That the treatment, pretreatment and blending processes 4.

described in the USDOE submittal are proven, cost i

effective, state-of-the-art processes, which are capable of removing the largest technically achievable amount of activity.

i 1

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i PETITION FOR RULEMAKING - 12

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WASHINGTON, D.C. 20555 oN...../

The Honorable Bob Graham, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, DC 20510

Dear Mr. Chairman:

The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U.S.

Department of Energy's site at Hanford, Washington, is high-level waste and, therefore, subject to the Commission's licensing authority.

The petition was published in the Federal Reaister on December 17, 1990, with i

an opportunity for the public to comment.

Twelve comments were received.

The l

majority of the comments opposed the petition.

{

After reviewing the petition and the comments received, the NRC has concluded that the petition should be denied. The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the regulations.

A notice of this denial will be published in the Federal Reaister within the next few days.

We have enclosed a copy of the denial that is being sent to the Federal Reaister.

The States of Washington and Oregon have been notified of this action.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs l

Enclosure:

i As stated f

cc:

Senator Alan K. Simpson

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f WASHINGTON. D.C. 23555

'c, The Honorable Philip R. Sharp, Chairman Subcommittee on Energy and Power Committee on Energy and Commerce United States House of Representatives Washington, DC 20515

Dear Mr. Chairman:

The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington-and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U.S.

Department of Energy's site at Hanford, Washington, is high-level waste and, i

therefore, subject to the Commission's licensing authority.

The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to comment. Twelve comments were received.

The majority of the comments opposed the petition.

After reviewing the petition and the comments received, the NRC has concluded that the petition should be denied.

The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the regulations.

A notice of this denial will be published in the Federal Reaister within the next few days. We have enclosed a copy of the denial that is being sent to the Federal Reaister.

The States of Washington and Oregon have been notified of this action.

Sincerely, l

Dennis K. Rathbun, Director Office of Congressional Affairs i

Enclosure:

As stated cc:

Representative Carlos J. Moorhead j

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The Honorable Peter H. Kostmayer, Chairman Subcommittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, DC 20515

Dear Mr. Chairman:

The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U.S.

Department of Energy's site at Hanford, Washington, is high-level waste and, therefore, subject to the Commission's licensing authority.

The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to comment.

Twelve comments were received. The majority of the comments opposed the petition.

After reviewing the petition and the comments received, the NRC has concluded that the petition should be denied.

The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the i

regulations.

A notice of this denial will be published in the Federal Reaister within the next few days.

We have enclosed a copy of the denial that is being sent to the Federal Reaister. The States of Washington and Oregon have been notified 3

of this action.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs

Enclosure:

As stated cc:

Representative John J. Rhodes

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l ENCLOSURE 7 i

Letters to the States of Washington and Oregon, 1

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%.'... f Mr. Cecil Sanchey, Chairman Radioactive Hazardous Waste Committee Yakima Indian Nation Post Office Box 151, Fort Road Toppenish, Washington 98948

Dear Mr. Sanchey:

The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U.S.

Department of Energy's site at Hanford, Washington, is high-level waste and, therefore, subject to the Commission's licensing authority.

The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to comment. Twelve comments were received. The majority of the comments opposed the petition.

After reviewing the petition and the comments received, the NRC has concluded that the petition should be denied. The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the regulations.

A notice of this denial will be published in the Federal Reaister within the i

next few days.

Sincerely, Donnie Grimsley, Director Division of Freedom of Information and Publications Services Office of Administration cc:

Mr. Russel Jim, Manager Environmental Restoration of Waste Management Program Yakima Indian Nation Post Office Box 151, Fort Road Toppenish, Washington 98948 m

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i Mr. Cecil Sanchey 2

IDENTICAL LETTERS TO:

Mr. Dan Silver Office of the Governor Insurance Building AQ-44 Olympia, Washington 98504 Mr. David Stewart-Smith, Administrator Division of Nuclear Safety & Energy Facilities Oregon Department of Energy 625 Marion Street, NE Salem, Oregon 97310 Mr. Terry Husseman, Assistant Director 2

Waste Management, Department of Ecology State of Washington, Mail Stop PV-Il l

Olympia, Washington 98504-8711 i

Mr. David Yaden, Director Oregon Department of Energy 625 Marion Street, NE.

Salem, Oregon 97310 Distribution: [SANCHEY. PAT) i Subj/ Circ /Chron CKammerer, SP DGrimsley, ADM EBeckjord CHeltemes i

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I NUCLEAR DEGULATORY COMMISSION DENIES PETITION FOR RULEHAKING i

i The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking submitted by the states of Oregon and Washington seeking revisions in the Commission's current definition of high-level radioactive wastes.

In addition, the states asked the Commission to develop new standards which would have permitted the classification of radioactive wastes stored in tanks at the Department of Energy's Hanford (Washington) facility as high-level radioactive wastes (HLW) subject to NRC licensing authority.

l Under the petitioners' proposal, the Commission would have:

1.

Established a process to evaluate the treatment of defense reprocessing wastes in tanks such wastes will not be considered HLW if, prior to disposal, each tank is treated

+.o remove the largest, technically-achievable amount of radioactivity; and 2.

Required that the heat produced by residual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment technology) will be within limits established to ensure that grout meets temperature requirements for long-term stability for low-level waste l

forms.

After reviewing the petition and the comments received, the NRC has j

concluded that the petition should be denied.

The petition is being denied because the NRC concludes that the principles for waste classification are I

well established and can be applied on a case-by-case basis without revision i

to the regulations.

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