ML20046C624

Proposed Rule 10CFR60, Disposal of Hlrw in Geologic Repositories. Rule Would Clarify That Adequacy of License Applicant Investigations Will Be Judged for Significance to Compliance w/post-closure Performance Objectives

ML20046C624
Person / Time
Issue date:	07/02/1993
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML20046C616	List: ML20046C615 ML20046C621 ML20046C624
References
FRN-58FR36902, RULE-PR-60 PR-930702, NUDOCS 9308110238
Download: ML20046C624 (20)

Text

-

i t

i

[7590-01-P]

NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 RIN 3150-AE40 t

Disposal of High-Level Radioactive Wastes in Geologic' Repositories; Investigation and Evaluation of Potentially Adverse Conditions AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

i

SUMMARY

The Commission proposes to clarify its regulations with respect to the consideration of certain defined geologic and' l

other conditions that, if present, are potentially adverse to the ability of a geologic repository to meet.the prescribed performance objectives with respect: to isolation of high-level

.j i

radioactive waste.

The proposed revisions attempt to make clear l

l that the adequacy of a license applicant's investigations and l

evaluations will be judged in terms of their significance to compliance with post-closure performance objectives. ~In addition, provisions that deal with information presentation'in the. license application would be completely separated'from the technical criteria and moved to the'section that cefines the recu1 red contents

)

of the license application.

'l 9308110238 930702 PDR PR 60 MISC-PDR.

~

~

l I

l 2

DATES:

Comments must be submitted on or before [ Insert date 90

-:ays after date of publication in the FEDERAL REGISTER.]

Co aments received af ter this date will be con"'dered if it is practical to do so, but the Commission is i.i assure consideration only for comments received on

. cefore this date.

ADDRESSES:

Send comments to:

Secretary, U.S.

Nuclear Regulatory i

Commission, Washington, DC 20555.

Attn:

Docketing and Service j

Branch.

i 4

FOR FURTHER INFORMATION CONTACT:

Mark S.

Delligatti, Division of High-Level Waste Management, Office of Nuclear Material Safety and Safeguards,.U.S. Nuclear Regulatory Commission, Rockville, Maryland 20852, telephone (301) 504-2430.

SUPPLEMENTARY INFORMATION:

As reflected in the Nuclear Waste Policy Act of 1982, as amended, the Nuclear Regulatory Commission l

exercises licensing and related regulatory authority with respect i

to geologic repositories that are to be constructed and operated by the U.S. Department of Energy (DOE) for the disposal of high-level radioactive waste.

The Commission's regulations pertaining to such geologic repositories appear at 10 CFR Part 60.

The 1

Commission has lately been engaged, with the assistance of its federally-funded research and development center (the Center for j

i Nuclear Waste Regulatory Analyses, or "CNWRA"), in a review of s-v

4 3

the requirements of Part 60, with particular attention to any matters that may be ambiguous or inconsistent with other expressions of its regulatory policy.

The results of CNWRA's review were reported in CNWRA 90-003, " Identification and Evaluation of Regulatory and Institutional Uncertainties in 10 CFR Part 60."

The proposal that is presented by this notice r

deals with a matter that was brought to light by this review.

Background

To place the issue at hand in context, it would be useful to

)

describe generally the principal features of Part 60.

1.

Before construction of the repository, DOE is required to obtain a " construction authorization" from NRC (10 CFR I

60.3(b)).

l 2.

DOE's license application, which is to be submitted i

when it seeks construction authorization, must contain the I

information described in a detailed section on " Content of j

application" (10 CFR 60.21).

j l

~

3.

Upon consideration of DOE's application,_the Commission may authorize construction, considering whether required information has been submitted and whether the site and design l

comply with the Technical Criteria (10 CFR 60.31(a)).

i

. ~. - -.

i i

t t

4

+

4.

The " Technical Criteria" in 10 CFR Part 60, Subpart E i

include, among other things, certain performance objectives (10' CFR 60.111-50.113) as well as siting criteria (10 CFR 50.122) and design criteria (10 CFR 60.130-134).

5 i

r The issues to be addressed concern: (1) the meaning of two provisions of the siting criteria, particularly as they-may relate to the performance objectives; (2) the way individual i

potentially adverse conditions must be considered; and (3) the appropriateness of moving, from the siting criteria to the content of application section, those requirements that deal with

]

information to be provided by DOE, including the provisions of_

l i

the siting criteria described above.

j The siting criteria include a listing (in 10 CFR 60.122(b))

I of certain " favorable conditions" and also (in 10 CFR 60.122(c))

of certain "potentially adverse conditions."

The significance of these conditions is that they may affect the performance of the i

repository in isolating any emplaced waste -- i.e.,

inhibiting i

the transport of radioactive materials from emplaced waste so amounts and concentrations entering the environment will be kept within prescribed limits.

I CNWRA's review of the regulation did not identify any a

i regulatory uncertainty with respect to the treatment of favorable conditions.

The treatment of potentially adverse conditions was t

3 I

/iewed, however, as being unclear.

The regulation appropriately notes that if any of the potentially adverse conditions is I

present, it may compromise the ability of he geologic repository to meet the performance objectives relating to isolation of the l

waste.'

It then goes on to specify wayr in which it can be demonstrated.that such a condition does not so compromise the performance of the repository.

For the demonstration to meet the requirements of the rule, the ootentially adverse condition must have been " adequately investigated" and its effect must have been i

" adequately evaluated."

Each of these *.erms gives rise to a regulatory uncertainty.

Specifically, the issue concerns the. standard by which the

" adequacy" of the investigation and evaluation is to be measured:

Is the proper star.dard that which is relevant and material to judging whether the performance objectives relating to isolation i

l i

l

}

1 See Staff Position 60-002, "The Meaning of the Phrase

' Perf ormance Objectives Relating to Isolation of the Waste, '" where it was concluded, on the basis of the rulemaking record for 10 CFR -Part 60, that the subject phrase (in 10 CFR 60.122) refers'to the a

performance objectives set out in 10 CFR 60.112, "Overall Performance Objective for the Geologic Repository after Permanent Closure," and 10 CFR 60.113, " Performance of Particular Barriers after Permanent Closure," but does not refer to the performance objectives set out in 10 CFR 60.111, " Performance of the Geologic Repository Operations Area through Permanent Closure."

Availability of this staff position was noted at 55 FR 33565; August 16, 1990.

1

~ -

6 of the waste have been met, or is it some other standard, (and if so,.inat standard) ?2 In addition, the CNWRA interpreted l

10 CFR 60.122 (a) (2) to require analyses of the effect of each l

i potentially adverse condition on performance and therefore, b

t

- The full text of the pertinent re.gulation, 10 CFR 60.122 (a),

reads as follows:

(a) (1)

A geologic setting shall exhibit an.

apprcpriate combination of the conditions specified in paragraph (b) of this section so that, together with the-l engineered barriers [ sic] [ barrier] system, the f avorable

~

conditions present are sufficient to provide reasonable assurance that the performance objectives relating to isolation of the waste will be met.

(2) If any of the potentially adverse conditions specified in paragraph (c) of this section is present, it may compromise the ability of the geologic repository. to i

meet the performance objectives relating to isolation of the waste.

In order to show that a potentially adverse condition does not so compromise the performance of the geologic repository the following must be demonstrated:

(i)

"he potentially adverse human activity.or natural condition has been adeauatelv investicated, including the extent to which the condition may be present.and still be undetected taking into. account the degree of resolution achieved by the investigations; and l

(ii) The effect of the potentially adverse human l

activity or natural condition has been adecuately i

evaluated using analyses which are sensitive to the

~

potentially human activity. or natural condition and assumptions which are not likely to underestimate its effect; and (iii) ( A) The potentially adverse human activity or natural condition is shown by analysis pursuant. to paragraph (a) (2) (ii) of this section not to affect q

significantly the ability of the geologic repository to a

meet the performance objectives relating to -isolation of the waste, or (B) The effect of. the potentially adverse human activity or natural condition 'is compensated. by the presence of a

combination of the favorable characteristics so that the performance objectives I

relating to isolation of the waste are met, or (C)

The potentially adverse -human activity or 1

natural condition can be remedied. (Emphasis added.)

4 7

10 CFR 60.122(a)(2) constitutes a separate regulatory requirement independent of the performance objectives in 10 CFR 60.112 and 10 CFR 60.113.

The CNWRA concluded that even if compliance was demonstrated with 10 CFR 60.112 and 10 CFR'60.113, additional j

demonstration of compliance would be necessary to address the j

i potentially adverse conditions listed in 10 CFR 60.122(c).

l Discussion i

I The Commission believes that its intention has been consistent and manifest throughout the rulemaking process.

The

)

Commission has endeavored to establish a set of regulations that

]

would facilitate a judgment, in accordance with the Atomic Energy Act, of whether the proposed disposal of high-level waste in'a geologic repository would create any unreasonable risk to the

)

health and safety of the public.

Although certain requirements may be stated in unqualified terms, we have noted that we do not i

expect that complete assurance that they will be met can be presented.

A reasonable assurance, on the basis of the record P

before the Commission, that the objectives and criteria will be met, is the general standard that is required.

In particular, proof of the future performance of engineered barrier systems and.

the geologic setting over time periods of many hundreds or many-thousands of years is not to be had, in the ordinary sense of the word.

What is required is reasonable (not complete)' assurance that the outcome will be in conformance with those objectives and criteria.

The Commission has stated that demonstration of l

l

~.

~

J w

\\

)

8 compliance will rely on data from accelerated tests and predictive models that are supported by such measures as field and laboratory tests, nonitoring data, and natural analog i

studies.

10 CFR 60.101(a)(2) l Reasonable assurance that the outcome will be in conformance l

with the stated objectives and criteria represents a judgment.

)

that the overall performance of the geologic repository, and the I

performance of particular subsystems, would achieve specified levels of radionuclide containment and isolation, coupled.with an expectation that certain design and quality assurance features would be incorporated so as to enhance confidence that such performance would be achieved.

Concern with potentially adverse conditions was spelled out clearly: it was to assure that they would be "... assessed in order to assure that they will not compromise the ability of the oeolooic repository to meet the performance obiectives [ relating to isolation of the waste)."

~

(Emphasis added.)

48 FR 28194, 28201, June 21, 1983-(final rulemaking).

l

}

It was our inclusion in the technical criteria of provisions i

that relate not to the performance of the repository, but to.

methodology for demonstrating that performance that gave rise to-the regulatory uncertainty identified by CNWRA.

Such matters are ordinarily dealt with in procedural sections of the regulations, and in particular those sections that: define the requirements for I

b r

-,--~,+s.

-. +

a

uA

>+4..

p y

..,.,=

J i

9 the content _of license applications, and should have been treated i

in like manner in 10 CFR Part 60.

Had this been done, there

'ould be no uncertainty.

The rule would then have been a f

-straightforward reflection of the Commission's intent.

DOE would f

need to demonstrate that the performance objectives would be met, taking into account the presence of potentially adverse i

conditions.

DOE would not have to demonstrate, as well, that there had been an "adequal 4nvestigation" or " adequate i

evaluation" above and ceyond what might be needed to show, with reasonable assurance, that the performance objectives related to isolation of the waste would be met.

We do, in fact, anticipate j

that quite thorough investigations will be undertaken and that very sophisticated evaluations will be needed, but the measure to be applied is only that which is relevant and material to a finding that the performance objectives have been satisfied.

It is also appropriate to clarify our expectation that the evaluation of potentially adverse conditions should take into account the interaction of such conditions.

Indeed, it would be inappropriate to attempt to evaluate a condition such as evidence of dissolutioning (60.122(c)(10)) without considering, as well, the potential for changes in hydrologic conditions resulting from reasonably foreseeable climatic changes ( 60.12 2 (c) ( 6) ).

The very reason for requiring consideration of potentially. adverse conditions is to ensure that the performance objectives will be l

net and this cannot be acconplished if combined effects are not

10 taker into account.

While the regulation does refer to eval;ating the significance of each of the potentially adverse conditions, this was intended to mean that the evaluation must dencnstrate how the potentially adverse condition is taken into I

acccunt in meeting the performance objectives (i.e.,

the application would need to describe the presence of the condition and :onsider that condition in the evaluation of performance).

1 The rule does not and was never intended to exclude the cons;deration of other conditions, whether favorable er potentially adverse, that would have a bearing upon performance and the sensitivity of such performance to the potentially adverse condition in question.

That is exactly what is called I

f or ny 10 CFR 60. 21(c) (1) (ii) (B), which requires the applicant's Safety Analysis Report to include an assessment that, among other things, analyzes "... the extent to which it contributes or detracts from isolation."

Although we acknowledge that the wording of the existing rule could be read to call for a more corpartmentalized approach to the analysis of potentially adverse i

conditions, we view that construction as inappropriate.

I i

The first change that is proposed, therefore, is to remove frcr the technical criteria that portion of the text that deals witr methodology, as contrasted with the physical characteristics of :ne site.

Section 60,122 will still include a list of fav rable conditions and potentially adverse conditions.

Section 60.12 2 ( a ) (1) will continue to require that the geologic setting

1 11 exhibit an appropriate combination of favorable conditions to provide reasonable assurance that the performance objectives relating to isolation of the waste (clarified by incorporating specific reference to 10 CFR 60.112 and 10 CFR 60.113) will be met.

However, the treatment of potentially adverse conditions would be modified.

Instead of setting out a methodology for demonstrating that a potentially adverse condition does not compromise the geologic repository's ability to meet the performance objectives relating to isolation of the waste, this portion of the rule would simply dec1cre that the presence of l

potentially adverse conditions must not so compromise repository performance.

Under S 60.21(c) (1) (ii) (B), the applicant would still be required to carry out the investigations needed to determine whether or not a potentially adverse condition may be

.I i

present.

t t

Although the means for evaluating the significance of potentially adverse conditions would no longer appear in-the technical criteria, they would still be an integral part of the f

regulation as a whole.

This can be demonstrated readily, as follows:

i 1

Currently, 10 CFR 60.122 (a) (2) requires that the potentially adverse human activity or natural condition be adecuately i

investicated, including the extent to which the condition may be present and still be undetected taking into account i

l i

-, _ ~.

4- -

i

^

+

12 the degree of resolution achieved by the investigations.

The proposed rule would accomplish exactly the same thing by' l

4 amending 10 CFR 60.21(c) (1) (ii) (B), which deals with a site

[

assessment that must be included in the Safety Analysis Report, to specify that "for each potentially adverse condition, the analysis shall demonstrate either its absence

{

or the extent to which its presence may have been underestimated or undetected, taking into account the degree of resolution achieved by the investigations."

The phrase

" adequately investigated," which was found to be a source of regulatory uncertainty, is to be removed from the 1

regulation.

liote that the description of the investigation has been refined to reflect possible underestimation of, as well as nondetection of, potentially adverse conditions.

Currently, 10 CFR 60.122(a)(2) requires-that the effect of the potentially adverse human activity or natural condition on the site be adeauately evaluated'using analyses which are-sensitive to the potentially adverse human activity or natural condition and assumptions which are not likely to underestimate its effect.

Again, the proposed rule serves the same purpose, by amending the " Content of Application,"

5 60.21(c) (1) (ii) (c), to incorporate-the same level of detail.

The amended language requires evaluations of performance that "shall consider all of the potentially.

-I adverse conditions and favorable conditions enumerated'in S 60.122 that have not been determined to be absent," and "in 4-J w

e e

,,,-- --~~ -

--.+--~r-<w-, -.

-r

i l

\\

l 13 considering any such potentially adverse condition, i

assumptions should be used that are not likely to underestimate its effects."

The phrase " adequately evaluated" is eliminated, but the standard for adequacy of evaluation is made explicit by stating that: "The evaluations must demonstrate that, considering the 6

potentially adverse conditions in combination with other.

characteristics of the site and design, the performance

.j objectives relating to the isolation of the waste as set out in sections 60.112 and 60.113 of this part will be met."

t i

The proposed rule would differ in two other respects from f

the existing rule.

The new rule clearly indicates that the require 1 evaluations are to be undertaken in combination.

This means that the effect of a particular potentially adverse conditior. would not be studied in isolation but in the context of other characteristics of the site and design as well.

This is accomplished by requiring the evaluation of the potentially adverse conditions "...in combination with other characteristics of the site and design."

The second difference relates to the elimination of three clauses currently contained in S 60.122 (a) (2) (iii) that set out alternative ways how the applicant can deal with the presence of potentially adverse conditions - by showing that they are not significant, that they i

are compensated for by the presence of favorable conditions, or I

that they can be remedied.

What is required is clear:

i c

14 reasonable assurance that the performance objectives relating to i

i isolation of the waste will be satisfied.

For the reasons indicated above, the three clauses currently appearing as S l

60.122(a)(2)(1)(ii) and (iii) that indicate how the requirement might be satisfied are unnecessary.

Thus, even though the l

alternative ways of dealing with the presence of potentially adverse conditions are not listed, the applicant may continue to empicy any of them in demonstrating that the pertinent l

performance objectives have been satisfied.

j Submission of Comments in Electronic Format Commenters are encouraged to submit, in addition to the a

original paper copy, a copy of the letter in electronic format on a DOS-formatted (IBM compatible) 5.25 or 3.5 inch computer diskette.

Text files should be provided Wordperfect format or unformatted ASCII code.

The format and version should be identified on the diskette's external label.

Environmental Impact The NRC has determined that this proposed regulation is the type of action described in 10 CFR Sl.22(d), pertaining to the i

promulgation of technical requirements'and criteria that the

ommission will apply in approving or disapproving applications,

)

i I

l i

15 under Part 60.

Therefore neither an environmental impact statement nor an environmental assessment has been prepared for i

this proposed regulation.

Paperwork Reduction Act Statement I

i i

i This proposed rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et sec.).

Existing f

requirements were approved by the Office of Management and i

Budget approval number 3150-0127.

l J

Regulatory Analysis

' i l

J l

The commission has prepared a draft regulatory analysis on

]

this proposed regulation.

The analysis examines the costs and benefits of the alternatives considered by the Commission.

The draft analysis is available for inspection in the NRC Public I

Document Room, 2120 L Street NW. (Lower Level), Washington, DC.

j 1

Single copies may be obtained from Mark S.

Delligatti, Division' 1

'I of High-Level Waste Management, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Rockville, Maryland 20852, telephone (301) 504-2430.

The Commission requests public comment on the draft

1 16 l

regulatory analysis.

Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.

[

t k

't f

Regulatory Flexibility Act Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.

605 (b), the Commission certifies that this rule, if l

5 adopted, will not have a significant economic impact upon a I

substantial number of small entities.

The only entity subject to i

regulation under this rule is DOE.

i l

Backfit Analysis i

The NRC has determined that the backfit rule, 10 CFR 50.109, i

does not apply to this proposed rule because affected facilities are not licensed under 10 CFR Part 50, and therefore, a backfit analysis is not required.

This proposed rule affects only those j

facilities that will be used for the disposal of high-level i

waste.

i 1

i List of Subjects in 10 CFR Part 60 l

Criminal penalties, High-level waste,. Nuclear power plants and reactors, Nuclear materials, Reporting requirements, and-j

~

t I

Waste treatment and disposal.

l i

._ u.

=.

1 17 For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C.

553, NRC is proposing to adopt the following amendments to 10 CFR Part 60.

PART 60 - DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES The authority citation for Part 60 continues to read as follow -

Authority:

Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C.

L'71, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233);

secs. 202, 206, 88 Stat. 1244

'46 (42 U.S.C.

5842, 5846); secs. 10 and 14, 2951 (U.S.C. 2021a and 5851); sec. 102, Pub.

L.95-601, 92 m

Pub.

L.91-190, 83 Stat. 853 (42 U.S.C.

4332); secs. 314, 121, Pub.

L.97-425, 96 Stat. 2213g, 2228, as amended (42 U.S.C.

19134, 10141).

4 2.

Section 60.21 is amended by revising paragraphs (c) (1) (ii) ( A), (B), and (C) to read as follows:

' -)lication.

S 60.21 Content I

18 (c)

(1) ***

(ii) The assessment shall contain:

(A) An analysis of the geology, geophysics, hydrogeology, geochemistry, climatology, and meteorology of the site.

(B)

Analyses to determine the degree to which each favorable condition and potentially adverse condition enumerated in 60.122 has been characterized and has been r

found to be present.

For each potentially adverse condition, the analysis shall demonstrate either its absence or the extent to which its presence may have been underestimated or undetected, taking into account the degree of resolution achieved by the investigations.

For these purposes, investigations shall extend fror the surface to a depth sufficient to determine critical pathways for radionuclide migration from the underground facility to the accessible environment.

Potentially adverse conditions shall be investigated outside of the controlled area if they may affect isolation within the controlled area.

(C)

An evaluation of the performance of the proposed

. -. ~

i 19 geologic repository for the period after permanent closure, assuming anticipated processes and events, giving the rates and quantities of releases to the accessible environment as a function of time; and a similar evaluation that also assumes the occurrence of unanticipated processes and events.

The evaluations shall consider all of the potentially adverse t

I conditions and favorable conditions enumerated in S 4

60.122 except those that have been determined to be j

absent.

In considering any such potentially adverse condition, assumptions should be used that are not i

likely to underestimate its effects.

The evaluations P

must demonstrate that, considering the potentially adverse conditions in combination with other l

characteristics of the site and design, the performance i

objectives relating to the isolation of the waste, as set out in 55 60.112 and 60.113, will be met.

J 3.

Section 60,122 is amended by revising paragraph (a) to

'l l

read as follows:

J S 60.122 Siting Criteria (a) (1) A geologic setting shall exhibit an appropriate

,,m..

n

a a:5 aa A

,cmL1 ec41 W

ab A

~

s

+1 a

w

.m 20 combination of ae conditions specified in paragraph (b) of this section so that, together with the engineered barrier i

system, the fav;rable conditions present are sufficient to l

provide reasonable assurance that the performance objectives relating to isolation of the waste, as set out in SS 60.112' f

and 60.113, will be met, j

(2) The presence of pot outially adverse conditions must not compromise the ability of the geologic i'

repository to meet the performance objectives relating to isolation of the waste.

e i

Dated in Rockville, Maryland, this"7-day of July 1993.

I

'r For the Nuclear Regulatory Commission.

O

[

i

~

1

\\s h-i Samuel J.

Ch lk,

+

Secretary of the Commission.

I I

s t

I a

-