ML23156A021

PR-060 - 51FR22288 - Disposal of High-Level Radioactive Wastes in Geologic Repositories, Conforming Amendments

ML23156A021
Person / Time
Issue date:	06/19/1986
From:	Chilk S NRC/SECY
To:
References
PR-060, 51FR22288
Download: ML23156A021 (1)

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KEYWORD: ADAMS Template: SECY-067 06/19/1986 PR-060 - 51 FR22288 - DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES, CONFORMING AMENDMENTS PR-060 51FR22288 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAICING PROPOSED RULE: PR-060 OPEN ITEM (Y/N) N RULE NAME: DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLO GIC REPOSITORIES, CONFORMING AMENDMENTS PROPOSED RULE FED REG CITE: 51FR22288 PROPOSED RULE PUBLICATION DATE: 06/19/86 ORIGINAL DATE FOR COMMENTS: 08/18/86 NUMBER OF COMMENTS: EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE: 19 I I NOTES ON: FINAL ACTION UNDETERMINED PER REGULATORY AGENDA OF 10/89. TITLE AL STATUS SO REFERS TO INCONSISTENCIES BETWEEN NRC REGULATIONS AND EPA STAND OF RULE: ARDS. PR WITHDRAWN (63FR66498, 12/02/98) HISTORY OF THE RULE PART AFFECTED: PR-060 RULE TITLE: PROPOSED RULE DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLO GIC REPOSITORIES, CONFORMING AMENDMENTS PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 86-092 SRM DATE: 05/15/86 SIGNED BY SECRETARY: 06/13/86 FINAL RULE SECY PAPER: FINAL ROLE SRM DATE: I I DATE FINAL RULE SIGNED BY SECRETARY: I I STAFF CONTACTS ON THE RULE CONTACTl: DANIEL J. FEHRINGER CONTACT2: TIM MCCARTIN MAIL STOP: 623-SS MAIL STOP: T-7F3 PHONE: 427-4796 PHONE: 415-6691

DOCKET NO. PR-060 (51FR22288) In the Matter of DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES, CONFORMING AMENDMENTS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 06/16/86 06/13/86 07/25/86 07/23/86 08/08/86 08/05/86 08/14/86 08/11/86 08/15/86 08/14/86 08/18/86 08/14/86 08/15/86 08/18/86 08/18/86 08/19/86 08/15/86 08/19/86 08/12/86 08/20/86 08/15/86 08/21/86 08/15/86 08/22/86 08/15/86 08/22/86 08/22/86 08/25/86 08/22/86 FEDERAL REGISTER NOTICE - PROPOSED RULE COMMENT OF ECOLOGY ALERT (E. NEMETHY, SECRETARY) (

20)

COMMENT OF DISPOSAL SAFETY INCORPORATED (BENJAMIN ROSS) (

2)

COMMENT OF RICHRD S. MCCUTCHEN (

3)

LTR DEPT. OF ENERGY (KNIGHT) REQUESTING EXTENSION OF COMMENT PERIOD COMMENT OF STONE & WEBSTER ENGINEERING CORP (R.B. BRADBURY) (

4)

COMMENT OF UNITED STATES DEPARTMENT OF THE INTERIOR (BRUCE BLANCHARD) (

5)

COMMENT OF EDISON ELECTRIC INSTITUTE (LORING E. MILLS) (

6)

COMMENT OF MISSISSIPPI DEPARTMENT OF ENERGY & TRANSPORTATION (JOHN W. GREEN) (

7)

COMMENT OF MARVIN I. LEWIS (

8)

COMMENT OF WASHINGTON NUCLEAR WASTE BOARD (WARREN A. BISHOP) (

9)

COMMENT OFF. ROBERT COOK (

10)

COMMENT OF DUKE POWER CO (H.B. TUCKER) (

11)

COMMENT OF NRC/DIVISION OF WASTE MANAGEMENT (DANIEL J. FEHRINGER) (

12)

COMMENT OF UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (ALLAN HIRSCH) (

13)

DOCKET NO. PR-060 (51FR22288) DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/29/86 08/26/86 COMMENT OF COMMONWEALTH EDISON CO (SHELDON TRUBATCH) (

14) 09/08/86 08/29/86 COMMENT OF MINNESOTA GOVERNOR 1S NUCLEAR WASTE COUNCIL (TOM KALITOWSKI) (

15) 09/12/86 09/12/86 COMMENT OF YAKIMA INDIAN NATION (DEAN R. TOUSLEY) (

16) 09/22/86 09/02/86 COMMENT OF NEVADA AGENCY FOR NUCLEAR PROJECTS (ROBERT R. LOUX) (

17) 10/17 /86 10/13/86 COMMENT OF UNIVERSITY OF WISCONSIN, EXTENSION/GNHS

.11/20/86 (THOMAS J. EVANS) (

18) 11/17 /86 COMMENT OF UNITED STATES DEPARTMENT OF ENERGY (BEN C. RUSCHE) (

19) 11/27 /98 11/24/98 FEDERAL REGISTER NOTICE - PROPOSED RULE:

WITHDRAWAL 01/11/99 12/10/98 FEDERAL REGISTER NOTICE - PROPOSED RULE: WITHDRAWAL; CORRECTION

DOCKET NUMBER PROPOSED RULE PR /p O (51F~~~~88) Nuclear Regulatory Commission 10 CFR Part 60 RIN 3150-AC03 7590-0~- ~,ETED US*HC .9CJ JAN 11 P 3 :05 O[-*,- r: I Rl..1 1 L.t Elimination of Inconsistencies Between NRG Regulati~QJUD and EPA High-Level Waste Standards; Correction AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule: Withdrawal; Correction.

SUMMARY

This document corrects a notice appearing in the Federal Register on December 2, 1998 (63 FR 66498), that withdraws a notice of proposed rulemaking that would have eliminated several inconsistencies with the generic Environmental Protection Agency standards to be developed for the disposal of high-level waste in deep geologic repositories. This action is necessary to correct an erroneous telephone number.

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, telephone (301) 415-7162. ()4. pl,:i/t~/95' 4, (,.3rl<ti?9o ~b

SUPPLEMENTARY INFORMATION: On page 66498, in the third column, under the ADDRESSES section, the telephone number, "(202) 512.,2249" is corrected to read "(202) 634-3273." Dated at Rockville, Maryland, this /~-fj, day of December 1998. For the Nuclear Regulatory Commission. David L. Meyer, Chief Rules and Directives Branch Division of Administrative Services Office of Administration

DOCKETED us,rn OFFI r NUCLEAR REGULATORY COMMISSION RLII AOJUL.', 10 CFR Part 60-RI N 3150-AC03 Elimination of Inconsistencies Between NRC Regulations and EPA High-Level Waste Standards AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule: Withdrawal.

SUMMARY

The Nuclear Regulatory Commission (NRC) is withdrawing a notice of proposed rulemaking that would have eliminated several inconsistencies with the generic Environmental Protection Agency (EPA) standards to be developed for the disposal of High-Level Waste (HLW) in deep geologic repositories. Because the NRC is developing site-specific disposal regulations for Yucca Mountain, Nevada, consistent with the Energy Policy Act of 1992 (EnPA), the proposed rule is being withdrawn. ADDRESSES: The Commission paper, the staff requirement memoranda (SAM), and associated documents are available for public inspection, and copying for a fee, at the NRC Public Document Room located at 2120 L Street NW. (Lower Level), Washington, DC 20012-7082, telephone: (202) 512-2249. P~. ~,/)./,/13' af t,3Ff<~l.P'-l<f8

FOR FURTHER INFORMATION CONTACT: Tim McCartin, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6681, e-mail tjm3@nrc.gov. SUPPLEMENTARY INFORMATION: On June 19, 1986 (51 FR 22288), the NRG published a notice of proposed rulemaking in the Federal Register that would have eliminated several inconsistencies with the EPA standards to be developed for the disposal of HLW in deep geologic repositories. The Nuclear Waste Policy Act of 1982 (NWPA) directs NRG to issue criteria for the licensing of HLW geologic repositories. Section 121(c) of this Act states that the criteria for the licensing of HLW geologic repositories must be consistent with these standards. The proposed rule was necessary to eliminate several inconsistencies with the EPA standards, thus fulfilling the statutory requirement. However, since then, Congress passed the EnPA, which requires EPA to issue radiation standards for the proposed geologic repository at Yucca Mountain, based on and consistent with the findings and recommendations of the National Academy of Sciences (NAS). Under EnPA, NRG is also required to develop site-specific disposal regulations that would apply solely to the proposed geologic repository at Yucca Mountain. NAS published its findings and recommendations in 1995. The NRG staff has considered and is implementing a strategy for developing site-specific disposal regulations that would apply solely to the proposed geologic repository at Yucca Mountain, and is deferring the updating of 1 O CFR Part 60 generic requirements to a later date. These site-specific regulations will be issued consistent with EnPA, which also requires the Environmental Protection Agency to issue radiation standards for a geologic 2

repository at Yucca Mountain, based on and consistent with the 1995 findings and recommendations of the NAS. The NRG staff's strategy for developing the site-specific disposal regulations for Yucca Mountain can be found in a Commission paper, designated SECY-97-300, dated December 24, 1997. This strategy was approved by the SAM dated March 6, 1998. Because the NRG is developing site-specific disposal regulations for Yucca Mountain, Nevada, the proposed rulemaking is being withdrawn. ~ Dated at Rockville, Maryland, this cl Cf - day of November, 1998. For the Nuclear Regulatory Commission. Jo Se o e ommission. 3

='**t>R-fd; ( 51 F£.L,t,£, 'P. Department of Energy Washington, DC 20585 NOV 1 7 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission Attention: Docketing and Services Branch Washington, D.C. 20555

Dear Sir:

(jj) DOtKElff' )MkC "86 NOV 20 A1 l :38 On June 19, 1986, the Commission issued for comment a proposed rule, 10 CFR Part 60, Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments (51 FR 22288), which is intended to conform 10 CFR Part 60 with standards for the management and disposal of high-level radioactive wastes promulgated by the Environmental Protection Agency. We have reviewed the proposed amendment and believe that several modifi-cations are necessary. Included among those are:

1.

Post-closure monitoring requirements are incorporated as part of the performance confirmation program. This results in monitoring requirements which are much more ambitious than those required by EPA and appears to extend the design period for retrievability. The requirements for post-closure monitoring should be separated from the performance confirmation program.

2.

The NRC standard of "reasonable assurance" is equated to, and substituted for, EPA's standard of "reasonable expectation." The NRC staff's attempts to modify the concept of reasonable assurance are confusing and inconsistent with previous statements. EPA purposefully decided to apply a standard differing from reasonable assurance. The reasonable expectation standard should be retained.

3.

The term "undisturbed performance," as used by EPA, is equated with NRC's "absence of unanticipated processes and events." These terms are not equivalent. The EPA term "undisturbed performancell should be retained.

4.

The proposed rule could be read to imply that retrieval of waste is required after permanent closure. NRC should explicitly reiterate its position that retrievability is not required after permanent closure. DEC - 9 1986 ~ by Clrd.** **. * *********cs**

".S. NUCLEAR PFr.l ~ ATORY COMMISSta) DOCK...,,,. -, - C"~iTION C y Potlm Copi Add'I r a,.c1a1 C,i N

2 -

5.

The current performance objective of 1000 years for groundwater travel time to the accessible environment is based on an assumed distance of 10 kilometers from the disturbed zone to the accessible environment. Since the maximum distance to the accessible environment has been reduced to five kilometers by the EPA standard, NRC should reevaluate, and consider reducing, its groundwater travel time objective. Our detailed comments are enclosed. We appreciate the opportunity to comment on these important issues. 1~::.L~-~R~u's-c~he, Direc rck_ Office of Civilian Radioactive Waste Management

Enclosure:

Comments on Proposed Amendments to 10 CFR Part 60

Comments on Proposed Amendments to 10 CFR Part 60 Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments General Comments

1.

Post-Closure Monitoring (Background) The proposed amendment would require post-closure monitoring as part of the performance confirmation program. Proposed section 60.2l(c) (9) requires that the license application contain "a general description of the program for post-permanent closure monitoring of the geol ogic repository." Proposed section 60.Sl(a) (1) specifies more detailed requirements for a description of post-permanent closure monitori ng in the application to amend the license for permanent closure. Proposed section 60.52(c) (3) states that: (c) a license shall be terminated only when the Commission finds with respect to the geologic repository:. (3) That the results available from the post-permanent closure monitoring program confirm the expectation that the repository will comply with the performance objectives set out at 60.112 and 60.113..** Proposed section 60.144 requires that: A program of monitoring shall be conducted after payment (si c) closure to monitor all repository characteristics which can reasonably be expected to provide material confirmatory information regarding long-term repository performance, provi ded that the means of conducting such monitoring will not degrade repository performance. This program shall be continued until termination of the license. These requirements will be difficult to comply with, will create inconsistencies within 10 CFR Part 60, and will provide little if any assistance in protecting public health and safety. A. Performance Confirmation Inappropriate The proposed amendment requires post-closure monitoring as part of the performance confirmation program of Subpart F. section 60.144 requires a program to"* ** monitor all repository characteristics whi ch can reasonably be expected to provide material confirmatory information regarding long-term repository performance **.* " (emphasis added). Proposed section 60.52 (c) (3) adds confi rmator y results from the post-closure monitoring program as a condition for license termination. This section as proposed would provide that "A license shall be terminated only when.** the results available from the post-permanent closure moni toring program confirm the

2 - expectation that the repository will comply with the performance objectives set out at 60.112 and 60.113 *** " (emphasis added) The requirement that post-closure monitoring provide performance confirmation would place a substantial and unnecessary burden on the repository program. It is not apparent that there would be any significant increase in public health and safety. Confirma-tory data could be difficult or impossible to obtain within the limitation that such monitoring will not degrade repository performance. It is unlikely that any post-closure monitoring program could provide data to confirm compliance with the engineered barrier requirements of 10 CFR 60.113(a) (ii) (A) and (B) as the proposed 60.52(c) (3) would require. The EPA standard does not require that the post-closure monitoring program be part of the performance confirmation program. It does not appear to be EPA's intent that the monitoring assurance requirement extend the performance confirmation program or the license duration. EPA requires only that "disposal systems shall be monitored after disposal to detect substantial and detrimental deviations from expected performance" 40 CFR 191.14(b). There are no requirements related to specific results of the monitoring program, in contrast to NRC's requirement of confirmation of compliance with the performance objectives. EPA states, at 50 FR 38072, that the objective of the monitoring assurance requirement is to "reduce the chances that unexpectedly poor performance of a disposal system would go unnoticed." EPA's objective in this regard is to detect poor performance, not to predict performance. In the preamble to the existing 10 CFR Part 60, 48 FR 28194 (June 21, 1983), the Commission discussed why it found long-term post-closure monitoring undesirable. The Commission considered

• • • such measures unnecessary and unlikely to provide useful information on the performance of a geologic repository **.* [t]he feasibility of obtaining reliable data on subsurface conditions over a period of centuries is questionable, and the practicability of taking remedial action after sealing of the shafts is doubtful.

Moreover, the emplacement of remote subsurface monitoring instruments and the provision of data transmission capabilities could provide additional pathways for release that would make it more difficult to achieve isolation.

48 FR 28205 The rationale presented therein has been neither retracted nor refuted. Thus, the Commission's reason for now proposing a signifi-cantly more stringent monitoring program than that envisioned in EPA's assurance requirements is not apparent.

3 - DOE recommends that, in the final rule, long-term post-closure monitoring be limited to the more realistically achievable EPA requirement. The proposed section 60.52(c) (3) should be changed to read: (3) that the results available from the post-permanent closure monitoring program do not indicate a sub-stantial and detrimental deviation from expected performance. The requirement to conduct a post-closure monitoring program should be moved from Subpart F to section 60.74, "Tests," or to some other appropriate section and be rewritten so that it does not require confirmatory testing but is consistent with EPA's requirement. B. Effect on Retrievability Requirement The proposed regulations appear to require that the waste be retrievable until after the completion of the post-closure monitoring period. The period of retrievability appears to be extended because the commission's regulations concerning retrievability of the waste connect the design period for retrievability with the completion of the performance confirma-tion program, the results of which are to be used as one of the bases on which the Commission will decide to allow permanent closure of the repository: The geologic repository operations area shall be designed to preserve the option of waste retrieval throughout the period during which wastes are being emplaced and, thereafter, until the completion of a performance confirmation program and Commission review of the information obtained from such a program. 10 CFR 60.lll(b) (1). The proposed regulations extend the performance confirmation period from the time of repository closure until license termination because the post-closure monitoring is made part of performance confirmation. Such extended retrievability would be extremely difficult and costly if not unachievable. We hope it is not in fact intended to be a requirement by the Commission. The appearance of requiring extended retrievability should be corrected by removing post-closure monitoring from the performance confirmation program as i n comment l.A above. In any event, the Commission should explicitly state that such extended retrievability is not required.

4 -

c.

Timing of Program Description The current regulation appears 1 to require a post-closure monitoring program which is to be first described in the application to amend the license for permanent closure. Section 60.5l(a) (1) requires that the application to amend the license for permanent closure shall include "(l) a description of the program for post-permanent closure monitoring of the geologic repository." 10 CFR 60.5l(a) (1). The proposed amendment advances the time at which the post-closure monitoring program is to be described by about 40 years from amendment for closure to the initial license application. The monitoring program would have to be devised before the repository is constructed instead of before it is closed. This is unnecessary and inadvisable. A description of this program at the time of license application would have to be very general and would not be very informative. Following decades of performance confirmation testing and scientific development of monitoring methods, the DOE will have a fuller understanding of what should be monitored and of what the then up-to-date techniques for monitoring are. Deferring the design of the monitoring program until near the end of repository operations will result in a far better post-closure monitoring program. We find nothing in the construction of the repository which would preclude subsequent decisions regarding the design of this monitoring program. The proposed section 60.2l(c) (9) should be deleted, or, the supplementary information to the final amendment should emphasize the general nature of the information to be provided and clarify that specifics of the post-closure monitoring program are not required at this stage of licensing. 1 However, the supplementary information to the proposed amendment states that "Part 60 does not now require monitoring after repository closure because of the likelihood that post-closure monitoring of the underground facility would degrade repository performance." (51 FR 22293). Also, extensive rationale in the supplementary information to the final technical rule, at 48 FR 28205, explaining why post-closure monitoring is undesirable, casts doubt on an interpretation of 60.Sl(a) (1) to require monitoring.

5 -

2.

Reasonable Expectation/Reasonable Assurance NRC has previously applied the reasonable assurance standard only to its own requirements. It now proposes to apply this standard to EPA's more stringent numerical containment, individual protection, and groundwater protection requirements. This standard, which may be appropriate for NRC's requirements, is not appropriate for application to EPA's requirements. 10 CFR Part 60 was promulgated in June of 1983. The EPA standard was promulgated in September of 1985; more than two years later. EPA had full knowledge of the content of, and rationale for, 10 CFR Part 60 when it promulgated its standard. 10 CFR Part 60 contains a detailed description of the rationale for and the meaning of the term "reasonable assurance."

See, 48 FR 28204.

Prior to issuance of the EPA standard NRC tried, and failed, to convince EPA to use the term "reasonable assurance." The proposed amendment to 10 CFR Part 60 presents no information concerning the definition of "reasonable assurance" which was not already known to EPA. With a full understanding of the term "reasonable assurance" the EPA deemed it unsuitable for application to their quantitative requirements and used instead a new term - "reasonable expectation." The containment requirements call for a "reasonable expectation" that their various quantitative tests be met. . *

• A similar qualitative test, that of "reasonable assurance," has been used with NRC regulations for many years.

Although the Agency's intent is similar, the NRC phrase has not been used in 40 CFR Part 191 because "reasonable assurance" has come to be associated with a level of confidence that may not be appropriate for the very long term analytical projections that are called for by 191.13. The use of a different test of judgment is meant to acknowledge the unique considerations likely to be encountered upon implementation of these disposal standards. 50 FR 38071. There is no reason to presume that, being cognizant of the detailed description in 10 CFR Part 60, and, after years of dialog within a close working relationship with the NRC staff, the EPA failed to understand NRC's concept of reasonable assurance. Yet, that is precisely what NRC now implies. The NRC does not assert that it is now changing 10 CFR Part 60 1s previous usage of the term, but that it is clarifying that usage.

6 - Thus, NRC ignores EPA's conscious and reasoned decision to promulgate a standard of assurance differing from NRC's. This is not in accord with the announced purpose and intent of this amendment which is to conform NRC's regulations with the standards promulgated by EPA. One point which NRC infers that EPA fails to understand correctly is whether or not the standard of reasonable assurance is the same for a repository as for a nuclear reactor. This point is not relevant to NRC's use of the reasonable expectation standard because the concept and application of reasonable assurance were described in the 10 CFR Part 60 rule independently of reactor usage. However, we find the narrative in this proposed amendment on this point to be confusing. The wording of the Statement of Considerations for the proposed amendment suggests the standard of "reasonable assurance" means something different for HLW disposal than it does for reactor licensing. 51 FR 22289. This appears to represent a change from the position the Commission took on the subject of reasonable assurance at the time it promulgated the final technical criteria. 48 FR 28204. In the discussion at 48 FR 28204 the Commission plainly stated that it was adopting the existing reasonable assurance standard: The reasonable assurance standard is derived from findings the Commission is required to make under the Atomic Energy Act.*. ; the standard has been approved by the Supreme Court.... This standard, in addition to being commonly used and accepted in the Commission's licensing activities, allows the flexibility necessary for the Commission to make judgmental distinctions with respect to quantitative data which may have large uncertainties (in the mathematical sense) associated with i t. The Commission went on to state that it had not modified the language [of reasonable assurance], but had explained how the concept was to be applied. 48 FR 28204. The application was keyed to the uncertainties that would have to be considered in making a finding of reasonable assurance. While describing the application of reasonable assurance almost identically at 51 FR 22289, the Commission stated its belief that: ... [I]ts concept of reasonable assurance, although somewhat different from previous usage in reactor licensing, is appropriate for evaluations of repository performance where long-term issues and substantial uncertainties are inherent in projections of repository performance. 51 FR 22289.

7 - This assertion is perhaps misleading: similar uncertainties have been dealt with successfully in reactor licensing; e.g., concern-ing East Coast seismicity. When looked at in this manner, the similarities of treatment rather than the differences emerge.

Thus, it is possible to look to the reactor licensing experience for guidance in the resolution of highly complex technical issues marked by uncertainty. It would be useful if the Commission could clarify its position concerning reasonable assurance along these lines.

In arguing for applying its reasonable assurance standard to EPA's requirements, NRC states that "[I]nasmuch as the findings to be made by the Commission must be made with "reasonable assurance" there is no need to use the term "reasonable expectation" in the specific standards." 51 FR 22296. Apparently NRC believes that the Atomic Energy Act requires the standard of reasonable assurance for the overall repository licensing findings. If this is the case, surely the Commission is not at liberty to redefine the meaning of the term "reasonable assurance" for use in repository licensing. The statement quoted above is also flawed in assuming that all of the detailed objectives and criteria must necessarily be satisfied with the same degree of confidence as that required for the overall findings. DOE may allocate performance goals among subsystems and components, placing more reliance on certain subsystems than on others. For systems on which little reliance is placed, less confidence in performance could be required. The repository is required to consist of multiple barriers. It is not a system which is no stronger than i ts weakest component. Hence there could be lesser assurance in meeting some specific criteria or standard than in achieving the required overall licensing findings. In responding to this comment, NRC should clarify whether or not the standard of reasonable assurance (not the application) in 10 CFR Part 60 is the same standard as used in reactor licensing. The final amendment should then adopt the EPA standard of "reasonable expectation" in place of the "reasonable assurance" standard in the Subpart E technical criteria. At the least, to be consistent with the EPA standard, the final amendment must adopt the "reasonable expectation" standard used by EPA for the require-ments in section 60.112.

3.

Undisturbed Performance/Unanticipated Processes The proposed amendments to 10 CFR Part 60 would substitute the phrase "in the absence of unanticipated processes and events" for the phase "undisturbed performance" in 40 CFR Part 191. The Commission reasoned as follows:

8 - The Commission considers the concepts of undisturbed performance and the absence of unanticipated processes and events to be identical..** since human intrusion and unl i kely natural processes and events are precisely the types of "unanticipated processes and events" defined in 60.2, the two concepts are the same. 51 FR 22289. While the effect of the concepts may be similar for this application, the concepts are not identical. There could be, and probably would be, "undisturbed performance" in the presence of most unanticipated processes and events. Thus the concepts are not congruent. One concerns the behavior of the system while the other concerns the presence or absence of processes or events which may or may not have a particular effect on the system. DOE is concerned that unwarranted conclusions may be drawn from NRC's assertion; that is, a conclusion that an unanticipated process or event must necessarily result in disruption. The final rule should retract the assertion that these concepts are "identical," affirm that unanticipated processes and events do not necessarily disrupt the repository, and either retain the EPA terminology or provide an accurate rationale and justification for different termi nology.

4.

Postclosure Waste Retrieval The proposed amendments include definition of "active instituti onal controls." This definition would include "performing maintenance operations or remedial actions at a site." 51 FR 22297. The i nclu-sion of the words "or remedial actions" in the definition of "active institutional controls" could be read to imply waste retrieval after permanent closure, and as such, would be a significant departure from past positions on retrieval developed by both DOE and NRC. Repository design has proceeded with the understanding that once closed, the repository should remain undisturbed by man in perpetuity. The implication that the NRC contemplates circumstances under which the DOE might wish to retrieve the waste after permanent closure could result in a requirement that DOE design the repositor y to accommodate post-closure retrieval. If post-closure remedial action must be ta~en into account, this could lead to requiri ng changes in seal design, and locating remedial action access shafts. Moreover, the repository EIS may need to analyze various design alternatives, performance assessments, accident scenarios, re-mining strategies and procedures, new construction, disposal alternatives, and concomitant environmental impacts. NRC should reiterate its previous position on retrieval after closure as stated in the preamble to the current 10 CFR Part 60: "* ** the practicality of taking remedial action after sealing the shafts is doubtful *** Rather the Commission has adopted an approach where the retrievability option

9 - is maintained until a performance confirmation program *.. allow[s] the Commission to decide, with reasonable assurance, that permanent closure *** with no further active human intervention.** will not cause an unreasonable risk to public health and safety." 48 FR 28205. In addition, the intent stated in the preamble to 40 CFR 191 that any current concept for a mined geologic repository meets the post-closure retrieval requirements without any additional procedures or design features should be reiterated by NRC in the preamble to the final rule.

5.

Controlled Area and Groundwater Travel Time The proposed definition states, "'Controlled area' means: (1) A surface location, to be identified by passive institutional controls, that encompasses no more than 100 square kilometers and extends horizontally no more than five kilometers in any direction form (sic} the outer boundary of the underground facility, and (2) the subsurface underlying such a surface location." 51 FR 22297 (emphasis added). The current definition in 10 CFR Part 60 states that the controlled area would extend "*** horizontally no more than 10 kilometers in any direction from the outer boundary of the underground facility.... " 10 CFR 60.2. The proposed amended definition would reduce the size of the controlled area by a factor of four with a concomitant reduction in the volume of rock beneath the controlled area.

Thus, under the proposed definition of controlled area, there will be less rock to insulate the repository from the accessible environment.

NRC states that reducing the size of the controlled area "*** represents no important change." 51 FR 22295. NRC adds that the reduced size of the controlled area will not make it impracti - cable to comply with the performance objective for groundwater travel time. Id. However, NRC does not substantiate either of these statements. According to 10 CFR 60.113(a) (2), the path of groundwater travel must be measured from the disturbed zone to the accessible environ-ment. The accessible environment is defined to be that portion of the lithosphere outside the controlled area; thus, the smaller the controlled area, the shorter the path and time of groundwater travel. NRC requires that groundwater travel time be at least 1,000 years. 10 CFR 60.113(a) (2). In its rationale for 10 CFR 60, NRC stated that the results of some cited tests " *.. provide significant suppor t for the achievability of a minimum groundwater travel time requir e-ment of 1,000 years between the disturbed zone and the accessi ble environment which is located up to 10 kilometers away." NUREG-0804,

p. 517, December, 1983 (emphasis added).

It would seem that the proposed definition of controlled area will make the travel time requirement less achi evable. Groundwater must now complete its travel in the original time period, but can only travel half the original distance. NRC should acknowledge that the proposed definition of controlled area will make its regulation less achievable and more conservative. Since the current groundwater travel time performance objective is based on an assumed 10 kilo-meter distance, and this distance is being halved by the EPA standard, DOE believes that NRC should reevaluate, and consider reducing, its groundwater travel time objective in this or a future rul emaking.

6.

Elimination of Conflicts The NRC states, "The proposed rule would incorporate all the substantive requirements of the environmental standards and make several changes in the wording used by EPA in order to maintain consistency with the current wording of the NRC regulations." 51 FR 22288 (emphasis added). It appears that the purpose of this amendment is to subsume within 10 CFR Part 60 all of the EPA rule with which DOE must demonstrate compliance. To foreclose the possible assertion that 10 CFR Part 60 is not all inclusive or that it differs from 40 CFR 191 and hence DOE must demonstrate compliance with both regulations separately, this amendment should explicitly state this intended purpose. Thus, we suggest that the following (or similar) statement be added to the preamble to the final rule: With this incorporation and these changes, the Commission considers that compliance with 10 CFR Part 60 satisfies all requirements of the standards for manage-ment and disposal of high-level radioactive wastes promulgated by EPA on September 19, 1985. Specific Comments

1.

Supplementary Information at 51 FR 22295, column 2. In the Supplementary Information to the proposed rule (51 FR 22295), the Commission states with respect to the disturbed zone that thermal buoyancy is an effect that could alter groundwater flow over significant distances as a result of waste emplacement. Because of this and because the Commission is proposing to reduce the maximum allowable distance to the accessible environment, the Commission notes that"*.. it is particularly important to emphasize that the Commission did not intend such effects to serve as a basis for defining the extent of the disturbed zone." 51 FR 22295. The DOE agrees that the present definition of "disturbed zone" is ambiguous and is concerned that resolution of what consti-tutes the disturbed zone for a particular geologic repository could prove contentious in a licensing proceeding. DOE notes that the Commission staff has issued a draft Generic Technical Position interpreting the definition of disturbed zone. The validity of that position is currently under review. DOE recommends that a final position be codified through a separate rulemaking.

2.

Supplementary Information at 51 FR 22295, column 2. In the supplementary information to the proposed rule the NRC states that, "The EPA standards contain a definition of the term 'transuranic waste.' The Commission does not use this term in Part 60 and thus has no need to define it there." 51 FR 22295. However, the term "transuranic waste," or its acronym "TRU," indeed, is used in several instances in the proposed regulations. According to proposed 10 CFR 60.115, calculations of releases from a repository must take into account the type of waste in the repository. Among others, one type includes: 11 *** an amount of transuranic (TRU) wastes containing one million curies of alpha-emitting transuranic radionuclides with half-lives greater than 20 years." 51 FR 22299, proposed 10 CFR 60.115, Note [l] (e). (emphasis added). In. the same section NRC also adopts EPA's example on adjusting the release limits for the amount of waste in the repository. This example uses the term "transuranic": 11 *** [I]f a particular disposal system contained three million curies of alpha-emitting transuranic wastes, the Release Limits for that system would be the quantities in Table 1 multiplied by three (three million curies divided by one million curies). 11 50 FR 22299, proposed 10 CFR 60.115, Note 2 (b) (emphasis added). The term, and its abbreviation, TRU, also appear in the text and equation of Note 2(c) of proposed 60.115. Thus, if the amendments are finalized as proposed, NRC will use the term "transuranic wastes" in 10 CFR 60, and, hence, needs to define it. We believe, therefore, NRC should adopt the 40 CFR 191 definition of transuranic wastes for the purposes of these amendments.

3.

Proposed amendment to Section 60.2, Controlled Area. NRC's proposed definition of the term "controlled area" is slightly different from the EPA's. NRC proposed that the controlled area extend " *.* horizontally no more than five kilometers in any direction form (sic) the outer boundary

12 - of the underground facility ***," 51 FR 22297, proposed 10 CFR 60.2 (emphasis added), while the EPA standards state that the controlled area extends "horizontally no more than five kilometers in any direction from the outer boundary of the original location of the radioactive waste," 40 CFR 191.12 (g) (emphasis added). Although NRC acknowledges the inconsistency, no explanation is provided in the text. Some rationale for the inconsistency should be provided.

4.

Proposed amendment to Section 60.2, Controlled Area, line 7.

5.

The word "form" should be changed to "from". Proposed amendment to Section 60.2, Significant source of groundwater, line 16. The word "and" should be changed to "an".

6.

Proposed amendment to Section 60.2, Transmissivity. In line 2, the word "intergrated" should be changed to "integrated". In line 3, the word "or" should be changed to "of".

7.

Proposed amendment to Section 60.21, Content of Application. The proposed amendment would require that the license application contain, [A]n evaluation of the performance of the proposed geologic repository for the period after permanent closure, assuming anticipated processes and events, giving the rates and quantities of releases of radio-nuclides to the accessible environment as a function of time; and a similar evaluation which assumes the occurrence of unanticipated processes and events. In making such evaluations, estimated values shall be incorporated into an overall probability distribution of cumulative release to the extent practicable. 51 FR 22298, proposed 10 CFR 60.2l(c) (1) (ii) (C) (emphasis added)

• NRC should explai n whether the "overall probability distribu-tion of cumulative releases" is the same as the complementary cumulative distribution function (CCDF) discussed in the pre-amble at 51 FR 22291.

8.

13 - NRC is requiring that DOE determine two probability distribu-tions or CCDF's; one for anticipated processes and events and one for unanticipated processes and events. We foresee no problem with constructing and presenting separate CCDF's provided separate probabilities are assigned to anticipated and unanticipated processes and events. However, the current definitions of anticipated and unanticipated processes and events do not support a probabilistic distinction between the two categories. "Anticipated processes and events" are defined in 10 CFR 60.2 as those that are "reasonably likely to occur," and "unanticipated processes and events" are those that are "judged not to be reasonably likely to occur during the period the intended performance objective must be achieved, but which are nevertheless sufficiently credible to warrant consideration." 10 CFR 60.2. It is our understanding that NRC feels that it is inappro-priate to assign probabilities to these terms.

However, unless probabilities are assigned to these two kinds of processes and events, it will not be possible to construct a probability distribution.

We request that NRC reconsider making a probabilistic distinction between these terms. Proposed amendment to section 60.21, Content of Application. The analysis required by proposed amendment to 10 CFR 60.21 (c) (1) (ii) {C), (see preceding comment), appears to go beyond what is needed to show compliance with proposed Section 60.112(a). Even though proposed Section 60.112(a) requires only that the probability distribution function be bounded, proposed Section 60.21 might be interpreted to require that it be calculated. This would make a major difference to the process of screening scenarios. For example, a scenario with very low consequences can be eliminated from consideration with respect to proposed Section 60.112(a) by showing that its proba-bility is much less than 0.1. To eliminate the same scenario from consideration with respect to Section 60.21 would require that its probability be shown to be less than that of another scenario with the same consequences. This interpretation seems to be confirmed in the supplementary information: The Commission will require an extensive and thorough identification of relevant processes and events, but will require analyses of the probability and/or consequence of each only to the extent necessary to determine its contribution to the overall probability distribution. If it can be shown, for example, that a particular event is so unlikely to occur that its

14 - effects on the probability distribution would not be meaningful, further analysis of the consequences of that event would not be required. 51 FR 22292 (emphasis added). The effect of such a requirement would be to make it difficult to eliminate even low probability, low consequence scenarios at sites which have a low overall probability distribution. DOE does not believe NRC intended this interpretation. For instance, NRC states in the supplementary information that "Part 60 already requires analyses virtually identical to those contemplated by EPA, but the Commission proposes to add additional words to Section 60.2l(c) (1) (ii) (C) to emphasize consistency with the EPA standards." 51 FR 22290. Section 60.2l(c) (1) (ii) (C) and the related supplementary information should be revised to clarify that the analyses required are those needed to show compliance with Section 60.112(a). A possible revision of 60.2l(c) (1) (ii) (C) would be to add the following: In these evaluations, particular processes and events need not be included if the omission of the process or event would not change any conclusion regarding compliance with the performance objectives of Section 60.112.

9.

Proposed amendment to Section 60.lOl(a) (2), line 18. The word "may" should be changed to "many" and the words "of many" should be changed to "or many".

10.

Proposed amendment to Section 60.lll(a), line 4. The word "designated" should be changed to "designed".

11.

Proposed amendment to Section 60.lll(a) (1) The EPA standards, 40 CFR 191.03(a), limit the dose equivalent to any member of "the public in the general environment." The term "general environment" is defined in 40 CFR 191 as "the total terrestrial, atmospheric, and aquatic environments outside sites within which any activity, operation, or process associated with the management and storage of spent nuclear fuel or radioactive waste is conducted". The proposed Section 60.lll(a) (1) uses the term "the public outside the geologic repository operations area." The assertion at 51 FR 22296 that these terms are consistent would appear to be in error. This

12. term should be changed to "the public outside the restricted area" to be consistent with the intent of 40 CFR 191.03(a) and reactor licensing practice.

Proposed amendment to Section 60.112(a) In proposed 10 CFR 60.112(a), 51 FR 22299, NRC specifies the allowable releases from a repository from "all anticipated and unanticipated processes and events." These releases must be presented in a complementary cumulative distribution function (CCDF) which plots the likelihood of releases against the amount of releases. In plotting this function, NRC states, "Generally, categories of processes and events which can be shown to have a likelihood less than one chance in 10,000 over 10,000 years, along with categories of processes and events which otherwise can be shown not to change the remaining probability distribution of cumulative release significantly, need not receive further analysis." 51 FR 22292. Thus, NRC appears to adopt EPA's low-probability-cutoff, 10-8

• In EPA's words, "The Agency believes that such performance assessments need not consider categories of events or processes that are estimated to have less than one chance in 10,000 of occurring over 10,000 years."

40 CFR 191, Appendix B. However, NRC places a restriction on its proba-bility cut-off that does not appear in the EPA standard. NRC states, "The term *categories' is used to refer to general classes of processes and events, such as faulting, volcanism, or drilling. subsets (sic) of these general categories, such as drilling which intersects a canister or fault displacement of a specific magnitude, may need to be retained in an analysis if the general category has been finely divided into a large number of specific process or event description (sic) each with reduced probabilities of occurrence." 51 FR 22292 (emphasis added). This statement is extremely confusing. It appears to have taken away the low-probability-cutoff that was previously granted. For example, if faultin~, as a general category, has a likelihood of less than 10-, it need not be considered. But if faulting, as a specific process or event, has a "reduced probability of occurrence," it must be considered. It does not seem reasonable that a general category of an event can be dismissed while a specific description of the same event must be considered. Also, NRC should explain what it means by "reduced probabilities of occurrence." If this is some proba-bility below 10-8, NRC has inappropriately expanded the scope of the EPA standard.

13.

Proposed amendment to Section 60.ll2(c), line 1. The word "year" should be changed to "years".

14.

Proposed amendment to Section 60.114, Institutional Control The EPA assurance requirements provide that active institutional controls shall not be relied on for more than 100 years *

• • • [p]erformance assessments that assess isolation of the wastes from the accessible environment shall not consider any contributions from active institutional controls for more than 100 years after disposal.

40 CFR 191.14(a). The proposed amendment to 10 CFR 60.114 not only adopts this EPA requirement but extends the restriction to include passive institutional controls as well. Neither active nor passive institutional controls shall be deemed to assure compliance with the overall system performance objectives set out at Section 60.112 for more than 100 years after permanent closure.

However, the effects of institutional controls may be considered in assessing, for purposes of that section, the likeli-hood and consequences of processes and events affecting th (sic) geologic setting.

51 FR 22299 (emphasis added). The proposed amendment provides no justification or rationale for this extension. There is no discussion even acknowledging that this provision differs from EPA's in this respect. In fact the supplementary information states "the Commission concurs with *.. the principle that ongoing, planned, active protective measures should not be relied upon for than 100 years after permanent closure." 51 FR 22293 (emphasis added). Then, in the very next sentence, and without explanation, the supplementary information states that Section 60.114 will pro-hibit reliance on both active and passive institutional controls. 51 FR 22293. This requirement would place a substantial burden on repository design and siting and is in direct conflict with other provisions of 10 CFR Part 60. In particular, it con-flicts with the requirement of Section 60.51 to construct permanent monuments to regulate or prevent activities that could impair long-term waste isolation and with the provisions of Section 60.2 which provide for reliance on monuments to dissuade human intrusion.

- The provision that passive institutional -control cannot be relied on for more than 100 years is burdensome, not required by either public health and safety or the EPA standards, and should be deleted.

15.

Proposed Amendment to Section 60.114, line 11. The word "th" should be changed to "the".

16.

Proposed amendment to 60.115, second line after Table 1. The word "Note" should be changed to "Note 1 11 *

17.

Proposed amendment to Section 60.115, Table l, Note 4, line 5. The word "to" should be changed to "two".

18.

Proposed amendment to Section 60.115, Table 1, Note 6, line 7. The citation 1160.122(a)" should be changed to "60.112(a)".

19.

Proposed amendment to Section 60.122(c) (18) A new potentially adverse condition is proposed to be "* ** [T)he presence of significant concentrations of any naturally-occurring material that is not reasonably avail-able from other sources." Proposed 10 CFR 60.122 (c) (18). However, materials in significant concentrations at the site should also be reasonably available there at the site before a lack of availability elsewhere would result in a potentially adverse condition. The proposed amendment to Section 60.122(c) (18) should be changed to "The presence of significant concentra-tions reasonably available at the site of any naturally occurring material that is not reasonably available from other sources."

20.

Proposed amendment to Section 60.144, line 2. The word "payment" should be changed to "permanent".

University of Wisconsin-Extension WISCONSIN GEOLOGICAL and NATURAL HISTORY SURVEY DOCKETED USNRC 3817 Mineral Point Road

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-1705 Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Sir:

On behalf of the Technical Advisory Council, Wisconsin Radioactive Waste Review Board, I am submitting the following comments on proposed rule 10 CFR Part 60, Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Admendments (Federal Register, v. 51, no. 188, pp. 22288-22301). The proposed rule was reviewed by myself, DuWayne Gebken and Steve Dodge (Wisconsin Department of Natural Resources), and Bob Halstead (Wisconsin Department of Administration, Division of State Energy). I respectfully request that the Commission give the fullest possible consideration to these comments. A. Proposed section 60.2 (Definitions) Section 60.2 (Definitions) includes two amended definitions and seven new definitions. The new definition proposed by the Nuclear Regulatory Commission for "special source of groundwater" is based of 40 CFR Part 191, specifically section 191.12 (o), a rule adopted by the Environmental Protection Agency and currently under judicial review. For reasons of both process and substance, the NRC should not adopt the definition for "special source of groundwater" as proposed for section 60.2, Federal Register, v. 51, no. 118, p. 22298. Process Concerns It is not in the interest of the NRC to adopt by rule a definition that is currently under judicial review. The NRC by proposing this adoption of the EPA definition of "special source of groundwater" leaves its own rules open to the same substantive deficiencies currently being reviewed in the courts. A decision favorable to the petitioners in Docket No. 85-1915, U.S. Court of Appeals for the First Circuit, would compromise NRC's own rules and result in delay and confusion until the definition could be changed by EPA in accordance with judicial review. The NRC should seek to determine its own definition of the phrase "special source of groundwater" that would be consistent with the intent of 40 C.F.R. Part 191 and the NRC's obligations to license high-level radioactive waste disposal facilities under 10 C.F.R. Part 60. Substantive Concerns The proposed adoption of 40 C.F.R. Part 191, section 191.12(0) as 10 C.F.R. Part 60, section 60-.2 leaves the NRC open to the substantive shortcomings of the current EPA rule. These include (1) limited applicability of the proposed standard to groundwater supplies, (2) restrictive geographic extent of the applicability of the proposed rule, UW-Extension provides equal opportunfties in employment and programming, including Title IX requirements. OCT C 1fltrfrrn~ ~y r-~!"ff **** * * * *.,,....~

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Samuel Chilk Page 2 Oct. 13, 1986 (3) adoption of such terminology as "thousands of persons" that is vague, at best, and ignores more restrictive definitions in the Safe Drinking Water Act requiring protection of "public water systems" serving at least 25 individuals at least 60 days of the year, and (4) the little to no practical application of the proposed rule that is feasible.

1.

The proposed definition encompasses only certain Class I groundwaters and ignores Class II and III groundwaters. To the extent the DOE selects a site in Class II aquifers or Class I aquifers which do not fall within the restrictive "special source" definition in proposed section 60.2, the rule provides no design standard for the protection of groundwater.

2.

The range of protected groundwaters is limited under the proposed "special source" definition in section 60.2. No rationa1e is offered to justify the geographic limitation to the application of this proposed rule. Class I groundwaters within the controlled area or less than 5 kilometers beyond the controlled area are unprotected. This is not acceptable; there should be a groundwater standard for the controlled area that is no different than the individual protection requirements. This effectively allows the controlled area to be a transition area between the accessible environment and the disturbed zone of the repository.

3.

The term "thousands of persons., included on the proposed definition is vague and arb"trary and cannot, without considerable hydrogeologic information and evaluation, be definitely ascertained. The more restrictive definition of "public water systems" in the Safe Drinking Water Act should, in our opinion, be the applicable concept though it, too, may be subject to the uncertainties of inadequate hydrogeologic characterization. The restriction of the population to which this definition of "special source" is applicable is proposed to be to those persons present on the date of recoJJDllendation for further characterization. This restriction appears to arbitrarily limit the ability to protect water supplies and human health. The proposed definition ignores population growth in the area subsequent to the characterization decision and also ignores seasonal and part-year residents and tourists, who may well constitute a sign"ficant number of people po entially adversely affected by repository siting.

4.

The proposed "special source" definition has little, if any practical applicat *on. The very nature of r posi ory site evaluation mitigates against collec ion of the degree of hydrogeologic informat*on that can sustain the "special source" definition. For the reasons stated above, the NRC should seek to adopt a different definition to describe groundwaters to be sp cially protected in the course of r pository characteriza ion, construction, operation, and post-closure activities.

Samuel Chilk Page 3 Oct. 13, 1986 B. Proposed section 60.2 (Definitions) NRC proposes to amend its definition of "controlled area" to specify that the controlled area is to encompass "no more than 100 square kilometers" and to extend "horizontally no more than five kilometers in any direction from the outer boundary of the location of the radioactive wastes." We support these proposed changes. C. Proposed section 60.51 (License amendment for permanent closure) We support this language requiring more specificity on post-closure monitoring and proposed changes in section 60.52 adding a new condition for license termination relating to confirmation of expected repository performance. D. Proposed section 60. 111 (Performance of the geologic repos*tory operations area... ) Despite the discussion on p. 22289 explaining NRC interpretation of EPA's uranium fuel cycle standards, and the substitution of "or" for "and" therein, the NRC appears to perpetuate this confusion between language and intent in its own proposed section 60.111 on p. 22298. Despite the correct wording usage in proposed section 60.112(b) on p. 22299, the NRC has not been consistent. We object to the use of "or" in the description of individual dose limits in section 60.lll(a)(l). E. Proposed sections 60.112-115 (Overall system performance.** ) We are in general support of the proposed changes in these sections, but wish to point to seeming inconsistencies in language and intent of the rules as applied to high-level radioactive waste repository siting.

1.

Both 40 CFR 191 and the June 30, 1983 version of 10 CFR 60 require the prewaste emplacement groundwater travel times from the disturbed zone to the accessible environment shall either "be at least" {60.113(a)(2)} or "substantially exceeds" {60.122(b)(2)(i)} 1000 years. However, at page 22295, first column, first paragraph, last sentence, it states the "fastest path of likely radionuclide travel from the disturbed zone to the accessible environment shall be a specified period (generally, 1000 years). 11 This sounds like the 1000-year travel time is a maximum, whereas, it really is a minimum.

2.

A groundwater travel time of 1000 years over a distance of 5 km results in a conductivity of 1.59 x l0- 5 cm/s. This is unacceptably high and approaches the conductivity of glacial tills and weathered granites.

3.

This high conductivity in the controlled area is particularly troublesome since the individual protection requirement is not applicable (see previous comments). In addition, the only seemingly applicable standard, the special source of groundwater, is restricted to such large populations that it probably would not be applicable if the screening methodology

Samuel Chilk Page 4 Oct. 13, 1986

4.

5.

worked as it was supposed to. Thus, there would be no applicable limit to meet within the first 5 km of the repository and no protection for people who may live in this area. Under these assumptions, it would be possible to rely entirely on engineered barrier and waste package performance to meet the 1000-year containment requirement after closure rather than to calculate expected radionuclides in the groundwater and potential doses to individuals. Let's assume that DOE decides to do that but to only take credit for the minimum 300 years allowed in 60.113(a)(l)(ii)(a) for waste package longevity. Does this then mean the groundwater between the repository and the controlled area can be counted on for the remaining 700 years containment since there are no applicable standards here anyway and the potential dose to individuals would not have to be calculated because these are not groundwaters of concern (page 22290, second column, individual and groundwater protection requirements)? This could have the unintended undesirable effect of putting absolutely no confidence in the geologic media, which was the original objective. The lack of standards in the controlled area, the relatively high conductivity resulting from the 1000 year travel time over 5 km and the fact that people could be living in the controlled area are of concern. The basis of our concern is the thermal pulse and thermal bouyancy affect which can be attributed to the repository. It is likely the repository will act as a convection cell which would considerably alter pre-emplacement groundwater travel time, volumes and directions; yet, thermal buoyancy will not be considered in setting the extent of the disturbed zone (page 22295, second column, first full paragraph, first sentence). These factors together should be of concern for anyone within the controlled area or close proximity to the repository since groundwater flow rates may not provide sufficient time for radionuclide decay, sorption and dilution. In addition, the controlled area could be considered as an extension of the repository from a regulatory and engineering standpoint and, instead of being a transition zone for radionuclide decay, sorption and dilution, it could become the primary source of contamination for the area outside of the controlled area. The farther onP is away from a groundwater of concern (which is based on use), the greater the distance before the standards will apply.

6.

We would suggest that there should be primary and secondary disturbed areas. The primary disturbed area could be the area closest to the facility where the physical disturbances are such that conductivities would be substantially altered beyond pre-emplacement conditions. The secondary disturbed area may be a much larger area where thermal bouyancy effects predominate and where the rate and direction of flows may be altered beyond pre-emplacement conditions. There should then be conductivity

• 1 Samuel Chilk Page 5 Oct. 13, 1986 criteria imposed on the primary and secondary disturbed areas with some allowances for variation (eg., 10- 9 cm/sec to 10- 10cm/sec for undisturbed granite and 10-s cm/sec to 10- 5 cm/sec for the primary disturbed area around the repository facility).

The problem with things as they are now is the uncertainty and ambiguity in interpretation of the regulations. The siting guidelines didn't help and it seems things are getting less predictable rather than more predictable. Somewhere a benchmark has to be set and the best basis for comparison would be the pre-emplacement conditions. There shouldn't be substantial variations from those conditions which can be determined and established beforehand. In fact, most of their generic engineering and mechanical properties are already known. In light of the abovementioned concerns with groundwater standards, groundwater travel times, and waste-package performance, it is particularly troublesome that the NRC can apparently still ignore a violation (p. 22292, 2nd col., 1st paragraph, 4th sentence). We object that the finding of an apparent violation can be considered as not preclusive in terms of the Commission's findings that repository performance would conform to the EPA standard. This philosophy of selective ignoring of apparent violations appears to set a dangerous precedent of selective evaluation of legitimate data that indicates an apparent violation. F. Proposed section 60.144 (Monitoring after permanent closure) We support NRC's proposal for a program of monitoring after permanent (not "payment" as listed on p. 22300) closure of a repository. There is no reason that nondestructive monitoring could and should not be done to not only monitor repository performance but also to validate the models. G. Proposed use of "negotiated rulemaking" (p. 22292) Negotiated rulemaking on issues other than some generic issues is not acceptable. Issues that are particularly site-specific, for example, should not be decided outside of the full, open rulemaking process which is fully reviewable. The proposed use of negotiated rulemaking on acceptable assessment methods is not advisable and we would urge the NRC to hold to formal rulemaking where it needs to adopt methods to evaluate risk, expected repository performance, and so forth. TJE:rm s;z;~ 2~ Thomas J. /1 Chairman, Tt~:cal Advisory Council Wisconsin Radioactive Waste Review Board

RICHARD H. BRYAN Go11ernor ROBERT R. LOUX &ecutlve Director AGENCY FOR NUCLEAR PROJECTS NUCLEAR WASTE PROJECT OFFICE Capitol Complex Carson City, Nevada 89710 (702) 885-3744 September 2, 1986 Mr. Samuel J. Chilk Secretary of the Commission u.s. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch

Dear Secretary Chilk:

"86 SEP 22 p 3 :54 In the June 19, 1986 Federal Register, the NRC published for public comment proposed amendments to its regulations in 10 CFR Part 60, Disposal of High-Level Radioactive Wastes in Geologic Repositories. The Nevada Agency for Nuclear Projects submits the enclosed comments in response to the Commission's request that parties with interest comment on the proposed rules. The subject amendments to 10 CFR Part 60 are responsive to the statutory requirement that the NRC conform its regulations to the "generally applicable standards for protection of the general environment from off-site releases from radioactive material and repositories" promulgated by the Environmental Protection Agency as 40 CFR Part 191. The Nevada Agency for Nuclear Projects commented upon the enactment of those general environmental standards and submitted a petition for rulemaking to the Commission (PRM 60-2, PRM 60 - 2A), receipt of which the Commission noted on December 19, 1985, 50 FR 51701. Should you have any questions concerning our comments, do not hesitate to contact me or Carl Johnson of my staff. RRL:CAJ/njc Enclosure Sincerely, z~,_r,,~ Robert R. *' Loux Executive Director SEP 2 3 1986 Cl rd ***.

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COMMENTS OF THE STATE OF NEVADA REGARDING THE JUNE 19, 1986 PROPOSED AMENDMENTS TO 10 CFR PART 60 General Comments Statutory Authority of the Commission The Commission cites Section 121 (b) (1) (C) of the Nuclear Waste Policy Act, 42 U.S.C. 10141(b)(l)(C), the "consistency" provision, as its primary basis for enactment of the proposed amendments. Though this is an appropriate reference and the requirement for consistency between NRC technical requirements and criteria and EPA environmental standards is a statutory one, the Commission should retain as its paramount objective the requirement of the Atomic Energy Act of 1954, reacknowledged by Section 121 (b) (1) (A) of the Nuclear Waste Policy Act, 42 u.s.c. 10141 (b) (1) (A), that nuclear programs under its licensing authority be consistent with the health and safety of the public. 42 u.s.c. 2013 d. Coordinated Rulemaking Nevada has commented, in connection with proposed amendments to 10 CFR Part 2, Part 51 and Part 60, that all of the proposed amendments to NRC regulations affecting the federal government's hi gh-1 ev el nuclear waste program should be done in a single, coordinated rul emaking. The Commission has continued to disregard this comment, going forward with independent initiatives on the subjects of procedural rules, NEPA compliance, pre-licensing activity and EPA standards "consistency" regulations. Once again Nevada must reserve judgment on the final question whether all NRC's regulatory initiatives make a complete package, adequately respecting the objective of maintaining the public health and safety. EPA Assurance Re~irements The Commission has made a concerted effort to incorporate the substance of the assurance requirements contained within 40 CFR 191. 14. However, the translation of subs tan ti ve requirements into the framework of the Commission's licensing regulations has resulted in a weakening of the assurance requirements to a certain extent. In particular, note the following:

a.

40 CFR 191.14(a) NRC's approach is to analyze the need for active institutional controls after disposal is complete in the license termination context. Though the issue remains open for subsequent analysis, the substantive requirement of 40 CFR 191.14 (a) is omitted. (See discussion of Section 60.2 below). 1

b.

40 CFR 191.14(b) Post-closure monitoring. (See discussion of Section 60.51 and 60.52 below).

c.

40 CFR 191.14 (c) Monuments. EPA's rule is substantive,

d.

requiring permanent markers, records and other passive controls. NRC's rule, contained in 10 CFR 60.21(c) (8) and

60. 51 (a) (2) require only that such controls be described in a license application.

10 CFR 60.121, the land ownership requirement, on the other hand is a substantive requirement, using the word "shall". In order to be completely consistent with EPA's rule, NRC should enact equivalent substantive requirements. 40 CFR 191.14(f) Retrievability. The Commission chooses to omit any substantive requirement that disposal systems be selected so that removal of most of the waste is not precluded for a reasonable time after disposal. Though we agree with the Commission's observation that a deep geologic repository wo1.1ld theoretically be openable so that wastes could be removed, the obvious intention of the EPA rule is that each component of the repository system and the repository design itself not preclude removal of wastes. Certainly EPA was as aware as NRC that a deep geologic repository could be reopened. We suggest that the Commission adopt the removal of waste requirement as a substantive requirement. PRM 60-2A Though PRM 60-2A filed by the States of Nevada and Minnesota, primarily addressed the assurance requirements, the amended petition included suggested amendments to 10 CFR Section 60.24, addressing the Commission's implementation of Section 114(f) of the Nuclear Waste Policy Act, 42 u.s.c. 10134(f). That proposal is nowhere addressed in the amendments to 10 CFR Part 60 published on June 19, 1986. Nevada regards the proposed amendment to 10 CFR 60.24 contained in its petition to be relevant to the Commission's duty to protect the public health and safety under the Atomic Energy Act as well as the Commission's duty to protect the environment under the National Environmental Policy Act. We are aware that the Commission is in the process of considering its implementation of NEPA as it pertains to nuclear waste repositories and that the Commission has before it SECY 86-51, 86-51A, 86-51B, which staff papers have not been released to Nevada for review or comment. Once again we stress the need for coordinated rulemaking and request that the Commission promulgate all its repository related regulations at one time so as to guarantee their comprehensive success at protecting the public health and safety. 2

Section by Section Analysis and Comment Section I Limits on Exposures and Releases On Page 22290 the following statement is made: "The Commission expects that the information considered in a licensing proceeding will include probability distribution functions for the consequences from anticipated and unanticipated processes and events." It should be pointed out that there is a precedent to this type of analysis, which suggests that this is not the approach that will help the fact finder to conclude that the standard of performance has been met. With the nomination of the three sites selected for characterization in May, 1986, the DOE issued a document1 which contains analyses of anticipated and unanticipated processes and events, and which was used to obtain insight into the. comparative advantages and disadvantages of all the sites under consideration for cha racterization. The document was not subjected to external peer review, and the affected States and Indian Tribes were never allowed to submit comments on the validity of the analysis. The NRC has yet to publish its critique of the document, which would provide an insight into the relevancy of such data to the licensing process. Section II Additional Comments on Implementation of the EPA Standards With reference to Figures 1 and 2 on Page 22291 and the accompanying discussion, the generation of "Complementary Cumulative Distribution Functions" appears to be simple and straight forward. In practice, the generation of such curves without an excessive number of "if" statements is virtually impossible. The analyses presented in the documents DOE/RW-. 0074 2 and DOE/RW-0073-3 are good examples. Therefore, it is imperative that the NRC produce as soon as possible generic technical position (GTP) papers that outline probabilistic 1u.s. Department of Energy, A Multiattribute Utility Analysis of Sites Nominated for Characterization for the First Radioactive-Waste Repository - A Decision-Aiding Methodology, DOE/RW-0074, May, 19 86. 2u.s. Department of Energy, A Multiattribute Utility Analysis of Sites Nominated for Characterization for the Firs t Radioactive-Waste Repository - A Decision-Aiding Methodology, DOE/RW-0074, May, 19 86. 3u.s. Department of Energy, Environmental Assessment, Yucca Mountain Site, Nevada Research and Development Area, Nevada, DOE/RW-0073, May, 1986. 3

methods of analysis of anticipated and unanticipated processes and events that would be acceptable for evaluating compliance with the EPA standard in a licensing hearing. On Page 22292 the following statement is made: "On the other hand, an apparent violation of the standard (based on conservative analysis) would not necessarily preclude the Commission from finding, with reasonable assurance, that repository performance would conform to the EPA standard". This statement appears to allow the Commission the latitude to replace scientific predictions of repository performance with qualitative judgments. This appears to run counter to the intent of the EPA con tainrnen t requirements. The State could not support a finding by the Commission that repository performance conforms to the EPA standard when conservative analysis indicates the repository does not satisfy the requirements. The Commission should give further consideration to this position before final adoption. (See discussion of reasonable assurance, below, for amplification). 60.2 - Definitions

a.

"Active Institutional Control" The proposed definition of "active institutional control" deletes important language from the Commissions earlier circulated draft and PRM 60-2. In particular, the earlier version included institutional controls performed to monitor compliance with standards limiting releases of radioactivity to the accessible environment. Though Nevada endorses the concept, incorporated in the proposed rule that repository monitoring not interfere with the containment capability of the repository, compliance monitoring nevertheless remains a necessary element of certainty of performance, and also provides a first alarm notice of potential repository failure, thereby allowing repair of the repository system at the first possible opportunity. The language of the earlier draft should be restored.

b.

"Controlled Area" As redefined, the term "controlled area" allows amoeba-like configurations of the controlled area. This could allow the applicant to selectively exclude from the area important weaknesses in surrounding geologic formations.

c.

"Transmis si vi ty" It should be emphasized that this definition of transmissivity is only considered in assessing whether an aquifer meets the EPA classification of "Significant Source of Groundwater". This definition should not be used in 4

calculating release limits for overall system performance objective or transport through unsaturated zone media. Section 60.21-Content of Application See discussion of reasonable assurance, below. Section 60.21 (cl (9) See discussion of post closure monitoring, below. 60.51, 60.52 - Post-Closure Monitoring At the outset, we note that the proposed amendment deletes two required characteristics of post-closure monitoring which where included in the earlier draft and in PRM 60-2A. Those were requirements that the description of the monitoring program, to be. included in the application for license amendment for permanent closure, include:

1.

a description of those monitoring devices which will indicate the likelihood that standards limiting releases of radioactivity to the excessible environment may not be met; and

2.

an indication how the results of post permanent closure monitoring will be shared with affected State, Indian Tribal, and local governments. The deletion is significant. Compliance monitoring is essential to the notice of repository failure to the public generally, and states and tribes in particular, in order to compel repair or maintenance. Compliance monitoring should be required and should be performed in a manner which does not interfere with. repository safety. More generally, Nevada finds problematic the proposed approach contained within Sections 60.51 and 60.52 regarding post-closure monitoring and license termination. The approach, as we understand it, is that monitoring will only be required until license termination occurs and that license termination will not occur unless the Commission is convinced that no more information obtained by monitoring would be material to the Commission's reasonable assurance that repository performance will be in conformance with the Commission's originally established objectives and criteria. The problem is that the two principles are symbiotically related. The lack of continued monitoring may be the reason why the Commission may determine that its reasonable assurance could not, in future, be altered. Nevada suggests that the monitoring requirement be perpetual, even past license termination, insuring perpetual compliance. We are, of course, conscious of the reality that all things must end. And certainly, if the deep geologic disposal of 5

high-level waste is successful, human memory, institutional protections and monitoring will stop. Even so, the better and safer approach now is to require perpetual monitoring. Section 60.101 - Reasonable Assurance The proposed amendment to Section 60.l0l(a) (2) adds new breadth to the concept of reasonable assurance. Whereas the current rule uses the phrase "reasonable assurance that the types and amounts of radioactive materials described in the application can be received, possessed, and disposed of in a geologic repository operations area of the design proposed without unreasonable risk to the health and safety of the public," the proposed rule uses the phrase "reasonable assurance, making allowances for the time period, hazards and uncertainties involved, that the outcome will be in conformance with those objectives and criteria." Assuming that "those objectives and criteria" include "a finding that the issuance of a license will not constitute an unreasonable risk to the health and safety of the public," the only change is the addition of the phrase "making allowances for the time period, hazards and uncertainties involve". Nevada supports the inclusion of this additional phrase, assuming that it clarifies and strengthens the standard of reasonable assurance, rather than weakens it. Our analysis of the explanatory discussion of the reasonable assurance concept, at 51 FR 22291,92, seems to confirm that it is the Commission's intention to clarify that the long time period, the severe hazards, and the extreme uncertainties, dictate a more conservative and cautious approach in order that the Commission's assurance be reasonable. The concept of reasonable assurance is indeed a qualitative one, requiring the Commission to exercise its judgment regarding the proposed repository's ability to operate without unreasonable risk to the health and safety of the public. Assuming that all of the factors considered by the Commission in making that judgment are quantative, a qualitative judgment is appropriate. But the qualitative judgment should be made cautiously when the quantitative analysis is imprecise because of long time periods and uncertainties about future events. Even more caution is required when significant hazards may result from being wrong. The phrase in the introductory comments "a substantial, though unquantified, level of confidence that compliance with release limits will be achieved" 51 FR 22291 and the phrase "apparent violation of the standard (based on conservative analysis)" indicate that we are correct in our assumption that the added phrase "making allowances for the time period, hazards and uncertainties involved, 11 is intended to dictate a more cautious Commission exercise of its qualitative judgment. Nevada specifically requests that the Commission confirm that the changed rule moves toward more cautious exercise of judgment. We seek this confirmation because the phrase "making allowances for the time period, hazards and uncertain ties involved II is capable of the interpretation that the unknowns of repository performance make stricter analysis less reasonable. (This was exactly the position 6

taken by the Department of Energy, in adopting its site selection guidelines, that the complex nature and length of geologic systems make quantitative analysis impossible). The word "allowance" is connotative of more liberal scrutiny. A better substitute would be "taking into account". We specifically request that the Commission address this important issue in its final enactment of the proposed rule. Though the proposed rule does not address it, the standard of reasonable assurance as used therein indicates that the burden of proof of the ability of a repository to operate so as not to constitute an unreasonable risk to the health and safety of the public is upon the applicant Department of Energy. In other words, the entire licensing proceeding must be conducted in such a way as to institutionalize a bias against the proponent of the resolution of any issue when long time periods, unknown hazards or uncertainties exist. 7

GAIL McGREEVY HARMON ELLYN R. WEISS DIANE CURRAN DEAN R. TOUSLEY ANDREA C. FERSTER Secretary ooc1<.1:.1 Nrn1utH p -{oO, ~/ / i!WfEll RUlfi,___ v_'e/ {5/ Fi ~~i ff) HARMON & WEISS DOCKETED USNRC 2001 S STREET, N. W. SUITE 430 WASHINGTON, D.C. 20009-1125 .86 SEP 12 P 4 :50 TELEPHONE OFr:r_ t <202> 32e-3soo DOC.'., f ***., September 12, 1986 U.S. Nuclear Regulatory Commission Room 1121 1717 H Street, N.W. Washington, D.C. 20555

Dear Mr. Secretary:

Enclosed are the comments of the Yakima Indian Nation on the proposed amendments to 10 CFR Part 60, which were published at 51 Fed. Reg. 22288, June 19, 1986. We apologize for the late sub-mission of these comments, which resulted from the coincidence of several deadlines related to the nuclear waste program. We hope that the Commission will still be able to fully consider these views. Enclosure Sincerely yours, ~72.. ~ Dean R *., Tousley ASSOCIATE ATTORNEY FOR THE YAKIMA INDIAN NATION

UClF DOC ET Otfl Post ( roMMISSIOH ECTIO 'f RY ~

COMMENTS OF THE YAKIMA INDIAN NATION on PROPOSED AMENDMENTS TO 10 CFR PART 60 TO CONFORM TO EPA STANDARDS 51 Fed. Reg. 2 2288 Submitted September 12, 1986 On June 19, 1986, the Nuclear Regulatory Commission pub-lished in the Federal Register for comment a Proposed Rule, Dis-posal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments, 51 Fed. Reg. 22288. The proposed rule takes the form of amendments to 10 CFR Part 60, nominally to con-form Part 60 to the Environmental Protection Agency environmental standards for disposal of spent fuel, high-level, and transuranic wastes, 40 CFR Part 191, which was finalized September 19, 1985, 50 Fed. Reg. 38066. Following are the comments of the Confederated Tribes and Bands of the Yakima Indian Nation, an affected Indian Tribe under the Nuclear Waste Policy Act of 1982, on the proposed amendments. We apologize for the late submittal of these comments, which resulted from the coincidence of several deadlines in the nuclear waste program.

1.

"Reasonable Assurance" Part II of the NRC notice contains a lengthy discussion about demonstration of compliance with the EPA containment re-quirements in the licensing proceeding, "reasonable assurance", dealing with uncertainties, cumulative probability distributions, etc. 51 Fed. Reg. 22290-92. The release limits in the EPA standards are themselves stated in quantitative probabilistic terms. NRC says it will issue a license "only if it finds a sub-stantial, though unquantified, level of confidence that com-pliance with the release limits will be achieved." In order to make this finding with "reasonable assurance", "the performance assessment *** must indicate that the likelihood of exceeding the EPA standard is low **** " 51 Fed. Reg. 22291. It appears that NRC is over-reacting to the charges earlier this year by the Radioactive Waste Subcommittee of the Advisory Committee on Reactor Safeguards that the EPA standards will be excessively difficult to demonstrate compliance with in licens-ing. Here the Commission is adding an additional, unnecessary

2 - layer of subjectivity and "judgment", so that there is really no actual standard left, in the sense that a standard is something to measure DOE's application against. It is justifiable that a standard of reasonable assurance would apply to the adequacy of documentation supporting an ap-plication to construct a repository. This documentation should demonstrate that the quantitative analyses are technically defensible. Adequate rationales must be provided for the selected parameters, types of analyses, and input data incor-porated into performance assessments. For example, an effective porosity value used in a calculation should be representative of the site under consideration. If there is uncertainty in the value, a degree of conservatism should be added to the calcula-tion commensurate with the perceived uncertainty to compensate for this uncertainty. NRC must then find, with "reasonable as-surance", that the values derived and the degree of conservatism employed are analytically defensible. The "reasonable assurance" aspect of the NRC's licensing decision should be limited to qualitative assessments of the adequacy of the technical analyses supporting the application. Unfortunately, NRC is proposing new language in the rule-- specifically the last two sentences in section 60.101--and lan-guage in the Statement of Considerations, that carries the "flexibility" the NRC seeks in the "reasonable assurance" concept to unjustifiable extremes. In discussing treatment of un-certainties, NRC states that "an apparent violation of the stand-ard (based on conservative analyses) would not necessarily preclude the Commission from finding, with reasonable assurance, that repository performance would conform to the EPA standard." 51 Fed. Reg. 22292. On the other hand, NRC also states that "analyses based on 'best estimates' of repository performance might be found to be inadequate if substantial uncertainties are present." Id. The latter concept just quoted is a reasonable statement of one possible manifestation of the analytical conservatism that should characterize the Commission's licensing decision in con-sideration of the great uncertainty involved. The former concept says, in effect, that even if the performance assessment results do not indicate compliance with the EPA standards, NRC may none-theless issue a license based on some type of "warm feeling" about the site. The Commission here seeks to define reasonable assurance as the "flexibility" to license a site which does not appear to comply with the regulatory standards. There is absolutely no need for the flexibility to "supplement numerical analyses with qualitative judgments." The numerical analyses will themselves be rife with qualitative judg-ments, unverifiable assumptions, and multitudinous opportunities for subjectivity. Similarly, "diversity or redundancy among the multiple barriers" cannot be accepted as grounds for ignoring or overriding the results of performance assessments which indicate

3 - non-compliance. Indeed, whatever diversity and redundancy is present in the system should already be accounted for in the numerical analyses as reductions in the quantitative probabil-ities of exceeding the EPA standards which are an integral part of the analyses. The Yakima Nation respectfully submits that the Commission's "flexibility" cannot extend so far. If DOE cannot come up with an analysis that permits the Commission to find, with reasonable assurance about the technical defensibility of the analysis, that the numerical EPA standards--including their quantitative probabilities--will be satisfied, there should not be the remotest possibility that the Commission will issue a license. The Commission is correct in observing that absolute proof of compliance is not to be had in these circumstances, and that many qualitative judgments will permeate the licensing analysis. However, it is a far different matter to assert--in the name of flexibility--the right to grant a license in spite of apparent non-compliance. All the involved federal agencies have expressed the belief that there are many prospective sites which can satisfy the EPA standards. In light of that optimism, the Com-mission need not and should not destroy public confidence in the adequacy of radioactive waste disposal, or destroy its own credibility, by telling DOE and the public that it might issue a license even where those key regulatory requirements are ap-parently not satisfied. The four new sentences at the end of section 60.10l(a}(2} should be deleted. New language, relating "reasonable assurance" to the degree of conservatism in assigning input values and ap-propriateness of employed analyses (e.g., models}, should be in-serted in this section (60.101} and in the Statements of Con-sideration.

2.

"Disturbed zone" In Part IV of the NRC notice, discussing Section 60.2 definitions, the NRC goes out of its way to state that the extent of the "disturbed zone" should not be defined in relation to the zone affected by thermal buoyancy. 51 Fed. Reg. 22295. This statement of NRC's understanding is not consistent with the in-tent of the existing rule. It is clear that back in 1983 when the rule was published, the NRC did intend to include the buoyancy affected zone in the disturbed zone. This is apparent from at least three sources as follows:

1)

The definition of disturbed zone in the rule is as follows: "Disturbed zone" means that portion of the controlled area the physical or chemical properties of which have changed as a result of heat generated by the emplaced radioactive

4 - wastes such that the resultant change of properties may have a significant effect on the performance of the geologic repository." The definition does not distinguish between properties of the rock medil.Dll and the included fluids. A geologic repository, by definition, includes the portion of the geologic setting impor-tant to isolation. The geologic setting includes the hydrologic system, which is indeed important to isolation. The fact that repository performance is considered also implies the fluid changes must be considered. For example, temperature increases in the fluid cause changes in fluid density and viscosity, there-by increasing hydraulic conductivity. Small increases in hydraulic conductivity can significantly increase release rates from a repository, and therefore are significant to repository performance. Density changes will also produce buoyancy effects, thereby altering flow directions.

2)

Further, as the NRC explained in the June 21, 1983 Federal Register, the ground water travel time provision is a parameter which is "not dependent upon the effects of waste emplacement." (i.e., heat): Some commenters suggested that the groundwater travel time be expressed in terms of post-emplacement as well as pre-emplacement conditions. This assl.Dlles that post-emplacement changes would be significant. By definition, however, the portion of the geologic setting significantly affected by waste emplacement constitutes the "disturbed zone." The groundwater travel time provision applies to transport from the disturbed zone to the accessible environment. This par-ameter is not dependent upon the effects of waste emplace-ment. This quote makes it clear that the GWTT parameter was intended to reflect post-emplacement performance and therefore must be evaluated outside the area affected by heat. This mandates that the disturbed zone encompass the zone of thermal buoyancy of ground water.

3)

Additional evidence indicating that NRC originally envisioned a disturbed zone on the scale of kilometers (rather than meters as in the current Draft Generic Technical Position on the Dis-turbed Zone) appears in Section 60.123(b) of the 1981 proposed rule (Federal Register notice of July 8, 1981). This section reads: Adverse conditions in the disturbed zone. For the purpose of determining the presence of the following conditions within the disturbed zone, investigations should extend to the greater of either its calculated extent or a horizontal distance of 2 km from the limits of the underground facil-ity, and from the surface to a depth of 500 meters below the limits of the repository excavation.

5 - Outward distances of these magnitudes is of the order roughly equivalent to the outer extent of buoyancy effects. The following statement in the June 19, 1986 Federal Regis-ter notice (51 Fed. Reg. 22295) clearly indicates that NRC is changing the intent of the rule, although the Commission is less than forthcoming about that intent: One potential type of effect which could alter local ground-water flow conditions is thermal buoyancy of ground water. Because buoyancy effects could extend over significant dis-tances (see, e.g., M. Gordon and M. Weber, "Non-isothermal Flow Modeling of the Hanford Site," available in the NRC Public document room) and because the Commission is propos-ing to reduce the maximum allowable distance to the acces-sible environment, it is particularly important to emphasize that the Commission did not intend such effects to serve as the basis for defining the extent of the disturbed zone. The Commission recognizes that such effects can be modeled with well developed assessment methods, and therefore were not the type of effects for which the disturbed zone concept was developed. Any contrary implication in our statement of considerations at the time the technical criteria were issued in final form (see 48 Fed. Reg. 28210) should be dis-regarded. NRC purports to justify this change in interpretation of the definition of the disturbed zone because 1) thermal-induced ground water flow supposedly can now be adequately modeled, and

2) the accessible environment is now limited to no more than 5 kilometers from the underground workings.

It is very doubtful that the scientific community as a whole would agree that under-standing of coupled ground water/heat flow modeling has been ad-vanced to the point that it is no longer a considerable source of uncertainty. Particularly questionable is the adequacy of input data and data collection techniques for such sophisticated model-ing. The second stated reason, a nearer accessible environment, is a totally inappropriate basis for NRC to liberalize its definition of the disturbed zone. EPA changed the distance to the disturbed zone from 10 km to 5 km in order to make the analy-sis more conservative. Even so, this change in the direction of conservatism is overwhelmed by the many other changes in the direction of non-conservatism in the final EPA rule. NRC now seeks to neutralize that incremental conservatism for purposes of the GWTT determination by re-defining the disturbed zone as one which is much smaller than that which is actually, incon-trovertibly "disturbed" by the heat effects of emplaced wastes. Inasmuch as the GWTT will be calculated using present-day hydraulic conductivities and gradients that later will be sig-nificantly altered by heat effects, the GWTT will no longer be a reasonable indicator of long-term, post-emplacement performance

6 under NRC's new interpretation of the disturbed zone. Exclusion of thermal buoyancy effects in the determination of the disturbed zone boundary will have potentially determina-tive impacts on the licenseability of marginal sites. In a pro-gram where regulatory decision-making in the face of scientific uncertainty will be taken to unprecedented extremes, and where DOE, EPA, NAS, and NRC have already professed their belief that there will be no shortage of potential repository sites capable of satisfying the standards, it is unnecessary and unwarranted for the NRC to make unacknowledged liberalizing changes which en-hance the prospective licenseability of the worst sites.

3.

ALARA Should Be Restored. In all its comments on the many iterations of the EPA stand-ards, the YIN has insisted that the most important of the EPA's proposed assurance requirements was the one calling for releases to be kept "as low as reasonably achievable" {"ALARA"), even when the numerical containment requirements have been complied with. The ALARA principle, which is widely applied in the context of regulation of nuclear hazards, would provide a much-needed incen-tive for excellence in the repository site selection process, which clearly is lacking in DOE's "mere suitability" approach to repository siting. Unfortunately, in the course of the extensive interactions among EPA, NRC, and DOE concerning the jurisdictional controver-sies inherent in the assurance requirements, the ALARA principle has fallen completely through the cracks. Because the Commission objected to EPA's proposed assurance requirements on jurisdic-tional grounds, but EPA declined to drop them, the Commission agreed to incorporate most of the concepts embodied therein in Part 60. At the same time as these discussions were going on be-tween EPA and NRC, a separate dialog was occurring between NRC and DOE staffs concerning NRC's requested revisions to 10 CFR Part 960, the siting guidelines. NRC was unwilling to incor-porate the ALARA assurance requirement in Part 60, and instead urged DOE to include the concept in the siting guidelines. Un-fortunately, as discussed below, the form that the concept was given in the siting guidelines makes it virtually meaningless. EPA, meanwhile, decided to retain most of the assurance re-quirements in 40 CFR Part 191, but provided that they will apply only for facilities not licensed by NRC, 40 CFR sec. 191.14, 50 Fed. Reg. 38086. EPA did not retain the ALARA assurance require-ment, however. EPA's stated rationale for dropping this as-surance requirement was that it is unnecessary because the idea has been incorporated in 10 CFR Part 60 and 10 CFR Part 960 {50 Fed. Reg. 38072, September 19, 1985). This argument does not hold water. Since EPA's assurance requirements now apply only to facilities not licensed by NRC,

7 - provisions in Part 60 and Part 960, both of which regulations apply only to licensed deep geologic repositories, obviously can-not take the place of EPA's assurance requirement. While the NRC is powerless to correct EPA's error with respect to unlicensed facilities, the Commission can and should correct the correspond-ing error with respect to licensed repositories. The argument that the ALARA concept has been properly incor-porated for repositories in DOE's siting guidelines is also without merit. DOE's alleged implementation of the concept in 10 CFR 960.3-1-5 is meaningless. It says, in effect: "In recommend-ing a site for repository development, we will compare the sites based on two projections of releases over 100,000 years--one projection will emphasize natural barrier performance, and the second will emphasize total system performance, including full consideration of engineered barriers. The first of these two projections will take precedence as long as it does not make any difference in the recommendation. If it would make a difference, the two evaluations are to receive comparable consideration." In the first place, it should be apparent that DOE is not really giving any precedence to an analysis that stresses natural barrier performance if that precedence would be discarded in the case where it made a difference in the decision. The claim that such a requirement serves as a substitute for a requirement to make siting decisions so as to keep exposures "as low as rea-sonably achievable" rings hollow, indeed. In the second place, the ALARA principle should be applied not just at the repository recommendation stage, but at the recommendation for characterization stage as well. We can think of no better argument for the need for an ALARA-type incentive for excellence in the repository siting process than DOE's recent recommendation decision. The Department went through an elaborate multi-attribute site comparison methodology, then to-tally ignored its results and selected the site which is by far the worst in DOE's own ranking

• The Commission has heretofore declined to get more involved in DOE's siting decisions, a position with which the YIN respect-fully disagrees.

We urge the Commission to consider whether it really wants DOE to bring it a construction authorization ap-plication for the worst site that has been considered. In the absence of an ALARA-type incentive in the siting process, and particularly in light of DOE's interpretation of the timing of the preliminary determination of suitability, that result is not at all unlikely. In rejecting an earlier suggestion to incorporate the ALARA principle in the geologic performance requirements of Part 60, NRC stated that because the EPA limits are already so low, "[e]fforts to reduce releases further would have little, if any, demonstrable value commensurate with their costs." 48 Fed. Reg. 28198 (June 21, 1983). This misses the point. An ALARA-type

8 - comparative evaluation is needed not so much to reduce releases as to improve confidence in the face of enormous uncertainty that releases will indeed be below those EPA standards. NRC makes much of the large inherent uncertainty in repository licensing findings, 51 Fed. Reg. 22292. That un-certainty argues for, rather than against, an ALARA requirement. EPA originally proposed the ALARA assurance requirement as a means of reducing that uncertainty, on the widely-accepted theory that uncertainty is less distorting in comparative analyses than in absolute ones. (That is, we can have greater confidence that site C is significantly worse than sites A and B than we can have that all three sites are "suitable."} The Commission can ultimately have much greater confidence that the site for which DOE applies for construction authorization is indeed "suitable" if that site is selected by DOE so as to keep exposures "as low as reasonably achievable." NRC should restore the ALARA princi-ple to the repository licensing process by including it in Part

60.

(EPA should also restore it to 40 CFR 191 for any HLW facilities other than NRC-licensed repositories.}

4.

Scope of Application of Part 60. Part 60 by its own terms applies only to licensing of deep-mined geologic repositories. The EPA standards, in contrast, apply to all forms of HLW and TRU disposal. NRC should clarify that it will promulgate separate regulations for licensing of any HLW disposal other than repositories, but still requiring NRC licensing under section 202 of the Energy Reorganization Act of 1974, and that any such alternative requirements will seek to achieve protection comparable to or greater than Part 60.

5.

Part 20 Compliance In the proposed amendment for section 60.lll(a} (2), the Com-mission is proposing wording to state, "The geologic repository operations area shall be designated so that *** radiation ex-posures and radiation levels, and releases of radioactive materials to unrestricted areas, will at all times, including the retrievability period of sec. 60.lll(b}, be maintained within the limits specified in Part 20". If this language means to suggest that potential exceedance of Part 20 limits would necessarily preclude retrieval, it is unacceptable. Depending on the circum-stances and the necessity of retrieval, exposures or releases in excess of Part 20 might be deemed justifiable or necessary. NRC should clarify that this provision is not intended to preclude retrieval operations if the site is found to be unsuitable for a repository at any time following waste emplacement.

9 -

6.

Monitoring Requirements The proposed section of the rule regarding post-closure monitoring (60.144} is discussed in section III of the Sup-plementary Information. This was added for consistency with the EPA Assurance Requirements [40 CFR 191.14(b}]. It would appear, however, that the NRC proposed rule will allow the operator to "walk away" from the site once the expectation of predicted per-formance is "confirmed". The EPA requirements call for monitor-ing until no useful information can be realized from this data collection. We believe the EPA formulation of an endpoint for monitoring will be more readily determinable. Moreover, given the degree of hazard of high-level waste, monitoring a high-level repository for as long as possible would be prudent. Therefore, the proposed NRC section 60.144 should read exactly the same as 40 CFR 191.14(b}, with the intent that the repository will be monitored as long as possible. It is acknowledged that the NRC cannot enforce such monitoring. Nonetheless, including such lan-guage would be prudent

• Minnesota Governor's Nuclear Waste Council August 29, 1986 Samuel Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555

Dear Mr. Chilk:

-ae; SEP -8 P1 :34 OFFICE OF. Ei',,:rA:*: OOCKEil G. SEF v1r.f. BRM C~' Thank you for the opportunity to review the Nuclear Regulatory Commission's Proposed Conforming Amendments to 10 C.F.R. Part 60, Disposal of High-Level Radioactive Waste in Geologic Repositories, (51 Fed. Reg. 22288 - 22300 June 19, 1986). We were particularly interested in reviewing the proposed changes in the rule in light of the petition for rulemaking filed jointly by the States of Nevada and Minnesota, as well as Minnesota's concerns over the adequacy of the Environmental Protection Agency's (EPA) Radiation Release Standards. Indeed, many of our comments here concern issues we have raised in the past and the way these issues have been addressed in the proposed amendments. In addition, we have some concerns about the changing position of the NRC on the definition of the disturbed zone as discussed in the proposed rules and the potential uses of a qualitative test of "reasonable assurance" that a proposed repository will not exceed radiation release standards. Please contact us if we can be of further assistance. \ ~ ~ i ~~~_:__* Tom Kalitowski, Chair cc: Congressional Delegation First and Second Repository States Jim Dechaine, Minnesota Washington Office ~ Room 110 Capitol Square Bldg., 550 Cedar St, St. Paul, MN 55101 (612) 296*2603

p U.

• NUCLFA DO.;

0

STATE OF MINNESOTA COMMENTS ON THE PROPOSED CONFORMING AMENDMENTS TO 10 C.F.R. PART 60, DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE IN GEOLOGIC REPOSITORIE The State of Minnesota has reviewed the proposed revisions to 10 CFR Part 60 (51 Fed. Reg. 22288 - 22300 June 19, 1986), conforming the licensing rules of the U.S. Nuclear Regulatory Commission (Commission) with the Environmental Protection Agency's Radiation Release Standards (40 C.F.R. Part 191).

1. We support the Commission's decision to incorporate language defining active and passive institutional control (60.2).

We also support the changes which incorporate post-permanent closure monitoring requirements into the license application and into license amendment for permanent closure (60.144, 60.52(c), 60.21(c), and 60.51(a)), as long as monitoring can be conducted without compromising repository performance.

2. Minnesota believes that 10 C.F.R. Part 60 should require the Commission to evaluate the Environmental Impact Statement the Department of Energy (DOE) is required to complete under 42 USC 10134(f) and 10 C.F.R. 60.21(a) to determine whether its adoption by the Commission would compromise the independent responsibilities of the Commission to protect the public health and safety under the Atomic Energy Act of 1954 (42 u.s.c. 2011, et seq.,).

Minnesota's position on this issue has previously been brought before the Commission in the amended petition for rulemaking filed jointly by the States of Nevada and Minnesota on September 30, 1985 (PRM 60-2). Minnesota and Nevada, in their amended petition for rulemaking, sought the incorporation of a series of tests by which the Commission could determine whether it could adopt the DOE's EIS in 60.24(c) and (d). In making the determination, the Commission should consider: "(1) whether the Department of Energy has complied with the procedures and requirements of the Nuclear Waste Policy Act (42 u.s.c. 10101 et..§..filh). (2) whether the alternative sites proposed in the environmental impact statement are bona fide alternative sites; that site characterization under 42 u.s.c. 10133 has been completed at such sites; and that the Secretary of Energy, after site characterization is complete, or substantially complete, at such sites, has made a preliminary determination that such sites are suitable for development as repositories consistent with the guidelines promulgated pursuant to 42 u.s.c. 10132. (3) whether the consideration of the alternative sites considered in the environmental impact statement included consideration of the natural properties that are expected to provide better isolation of the wastes from the accessible environment for 10,000 years after disposal; and whether the analyses used by the Department of Energy to compare the capabilities of different sites to isolate wastes were based upon the following:

• -* *- *-*** **- ----- --- --- --- - (i) only the undisturbed performance of the disposal system has been considered; (ii) the performance of the waste packages and waste forms planned for the disposal system was assumed to be the same from site to site and assumed to be at least an order of magnitude less effective than the performance required by 10 C.F.R. 60.113; and (iii) no credit was taken for other engineering controls intended to correct preexisting natural flaws in the geologic media (e.g.,

grouting of fissures shall not be assumed, but effective sealing of the shafts needed to construct the repository shall be assumed). (4) whether the disposal systems considered, selected or designed will keep releases to the accessible environment as low as reasonably achievable, taking into account technical, social and economic considerations. (d) If the Commisison determines that adoption of the environmental impact statement would compromise the independent responsibilities of the Commission, then the Commission shall consider fully the environmental impact of the selection of the proposed site as required by 42 u.s.c. 4321, et. seq." Although these issues were raised by Minnesota and Nevada in their petition for rulemaking, they were not addressed by the Commission in the proposed amendments to Part 60 and no reason was provided for their exclusion from the proposed rules. If the EIS process and the assurance requirements are to be effective, the Commission must insist that bona fide alternative sites have been identified and characterized; that preliminary determination of site suitability has been made after the DOE has characterized the sites, thereby gaining sufficient information to make the determination; and that no corners have been cut through reliance on engineered barriers to overcome the deficiencies of the natural properties of a flawed site. These assurances are essential to building confidence in the repository program.

3. In 60.51(a) (1) (c), language requiring the description of monitoring devices which will indicate the likelihood that standards limiting releases of radioactivity to the accessible environment may not be met should be included to give the Commission a realistic basis for judging the effectiveness of monitoring.

4. In 60.51(a) (1) (E), the rule should require the applicant to indicate how the results of post-permanent closure monitoring will be shared with affected state, Indian tribal and local governments.

Minnesota, in its August 1, 1984 response to proposed amendments to 10 C.F.R. Part 60, commented that states and tribes must not be relegated to the status of observers. In this case, states as

• stewards of public health and safety, must have information on the results of monitoring, much the same as they must have access to raw and interpretive data during the site characterization process.

Incorporating independent state and tribal access to monitoring data is a way of adding assurance that the containment requirements will be met. Guarantees of state and tribal oversight, which can serve as a check on long term monitoring, should be included in Part 60.

5. In the Commission's discussion of amendments to the definitions contained in 60.2, a change in direction is indicated with respect to the "disturbed zone.

In 48 Fed. Reg. 28218 June 21, 1983, the Commission defines the disturbed zone as "that portion of the controlled area the physical or chemical properties of which have changed as a result of underground facility construction or as a result of heat generated by the emplaced radioactive wastes such that the resultant change of properties may have a significant effect on the performance of the geologic repository." The definition says nothing about the ease or difficulty of understanding or modeling the results of underground facility construction or heat generated by the emplaced waste. It does not state that the disturbed zone is in any way dependent on the extent of the controlled area, except that the disturbed zone lies within part or all of the controlled area. The definition clearly encompasses the effects of thermal buoyancy of groundwater which results from underground facility construction or heat generated by the emplaced waste. In the preamble to the proposed rules, however, the Commission contends that it did not intend to include the effects of thermal buoyancy among those effects attributed to a "disturbed zone". The new definition of the controlled area (narrowed to 5 kilometers maximum distance from the outer boundary of the underground facility) apparently gives rise to concern that the Commission may not be able to issue a license at a site at which groundwater travel time must be measured over a distance substantially less than 5 kilometers because the effects of thermal buoyancy have expanded the disturbed zone. The decision to exclude thermal buoyancy from the definition of the disturbed zone seems to indicate that the Commission is changing its intent with respect to the disturbed zone. If this is the case, the Commission should amend the definition of the disturbed zone accordingly and further indicate what other processes may be excluded from the definition of the disturbed zone and why.

6. In the amended rules, the Commission proposes a scheme whereby two elements underly a finding that a proposed repository satisfies the desired performance objective for long term isolation of radioactive waste.

The first is a quantifiable performance standard. The second is a qualitative determination that takes into account "substantial uncertainties" which "can be accommodated within the licensing process only if a qualitative test is applied for the level of confidence that the numerical performance objective will be achieved."

r

• Such a qualitative test can serve as an important check on the quantitative results of an analysis of potential releases.

However, it is Minnesota's belief that the provision of a qualitative supplement to quantified repository performance information can work in the opposite direction.

A future Commission may be permitted, under 60.lOl(a) (2) of the proposed rules, to use a qualitative judgment about the role of uncertainty in performance assessment to override quantified data which may raise serious doubt about the ability of a proposed repository to meet the EPA release standards. This is particularly troublesome near the end of 60.lOl(a) (2) where the proposed rules explicitly discuss the possibility that the Commission may rely on "the degree of diversity or redundancy among the multiple barriers of a specific repository", presumably to overcome concerns raised by numerical predictions that EPA release standards have more than a "low" likelihood of being exceeded. It is important for the Commission to clearly indicate in 60.lOl(a) (2) that the supplemental use of qualitative judgment in reaching a determination of reasonable assurance must work as a conservative check on overly optimistic quantitative predictions and not as an open door to a repository license for an unsuitable site.

Commonwealth Edison iJiaCU NUIIIIIJ>R*-~{J /4::;) One Flosi N8"onal P1aza, Ch;cago, 11;no;. G IU1li , v (!_,V Address Reply to: Post Office Box 767 /;/ f=t,t_~~ ft. Chicago, Illinois 60690 - 0767 August 26, 1986 OOCKETEC' Mr. Samuel J. Chilk. Secretary U.S. Nuclear Regulatory Commission 1717 H Street. N.W. Washington. DC. 20555 Attn: Docketing and Service Branch USNRC "86 AUG 29 P 2 :35 OFFICE OF :,i: DOCKETING,1c

;: lfJ 8RANC 11

Subject:

Proposed Rule: Disposal of High Level Radioactive Wastes in Geologic Repositories: Conforming Amendments (51 Fed. Reg. 22288, June 19. 1986)

Dear Mr. Chilk:

This provides Commonwealth Edison Company's ("Edison") comments on the subject proposed rule. Edison. as the nation's largest nuclear utility. shares the nuclear industry's concern that a repository for high level radioactive waste and spent fuel be available as expeditiously as possible consistent with adequate protection of the public's health and safety and of the environment. One way to assure attainment of this goal is to establish a fair and efficient licensing process. Although the proposed procedural changes for the most part do not appear to present the potential for significant additional delays in licensing a repository. certain aspects of the proposed amendments do seem to complicate that process unnecessarily. For these proposed changes. Edison believes that the following suggested modifications to the proposal would lead to a more efficient yet fair licensing process. Other proposed changes are so vague that their impact on the licensing process cannot be estimated. For these proposed changes. additional information and another opportunity for comment should be provided in accordance with the Administrative Procedure Act.

1.

10 CFR 60.112 provides for certain system performance objectives which are to be satisfied "in the absence of unanticipated processes and events". The Nuclear Regulatory Commission ("NRC 11 ). considers that phrase to be equivalent to the phrase "undisturbed performance" as used by the Environmental Protection Agency ("EPA") in its repository standards established by 40 CFR Part 191. The two phrases. of course. are not equivalent. and attempts to treat them as if they were could lead to significant disagreements and consequent delays in the licensing

2.

3.

2035K process. Although human intrusion and unlikely natural processes and events are disturbances which are also unanticipated processes and events. the possibility of disturbances which are anticipated shows that the concepts of undisturbed performance is not the same as the concept of unanticipated processes and events. Because such differences could inject unnecessary disputes into the licensing process. Edison suggests that the NRC either conform its usage to EPA 1 s or explain more fully why the two terms can be considered equivalent. The proposals for treating uncertainties need to be more specific. Edison recognizes that uncertainties in calculations may be so large as to limit the NRC 1 s willingness to rely solely on calculations to demonstrate compliance with repository performance criteria. However. no indications were given as to what uncertainties will be considered to be substantial or what kind of qualitative judgement the NRC will find suitable to support the conclusions of calculations containing such uncertainties. In the absence of such indications. the proposed 10 CFR 60.112 is not clear enough for meaningful comment. Therefore, Edison believes that the staff technical positions on acceptable methods of analysis for evaluating compliance with Part 60 are a necessary prerequisite for commenting on the proposed rule. The proposal to use rulemaking to resolve certain issues is vague. The criterion for using to rulemaking. "issues where a licensing proceeding might otherwise encounter difficulties due to ambiguity regarding acceptable assessment methods". needs to be illustrated by examples. Such examples might show that a more informal process might be even more appropriate than rulemaking. Without such examples. it is not clear whether this proposal will streamline or complicate~ the licensing process. Therefore. examples must be provided to permit meaningful comment on this proposal to use non-adjudicatory procedures to resolve certain issues arising under 10 CFR 60.112.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON,D.C. 20460 &1~PR:: (51 l=l~,t~f? "8S AUG 25 P 1 :41 AUG 2 2 1986 Mr. Samuel Chi l k Secretary of the Comnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch

Dear Mr. Chilk:

ODFff{,f OF Slt,RL ll\HY OCKETING !.. SE/?VIC[ BRANCH OFFICE OF EXTERNAL AFFAIRS In accordance with Section 309 of the Clean Air Act, the U.S. Environmental Protection Agency has reviewed the U.S. Nuclear Regulatory Commission's Proposed Rule, "Disposal of High-level Radioactive Wastes in Geologic Repositories; Conforming Amendments" (51 FR 22288). These proposed rules would amend 10 CFR 60 to conform to EPA's standards for the disposal of these wastes. In general, the Commission has incorporated the intent of 40 CFR 191 into this proposed rule. However, we have a few comnents which we believe will clarify the proposed rule and make 10 CFR Part 60 more fully consistent with EPA's intentions in writing 40 CFR Part 191. Also, there are several apparent typographical errors which should be corrected.

1.

p. 22288, first column:

40 CFR Part 191 was actually promulgated (signed by the Administrator) on August 15, 1985. September 19, 1985, was the date of publication in the Federal Register.

2.

p. 22289, first column footnote:

In response to NRC's request for clarification, NRC is correct in their interpreta-tion of the Subpart A standards. Each of the dose equivalent limits is intended to be the potentially limiting dose, independent of the others, as appropriate, depending on the circumstances of the exposure.

3.

p. 22291, first column, first paragraph:

EPA believes that a performance assessment is an essential factor in the licensing process and must include numerical requirements. At the same time, we reaffirm our previous position that the level of confidence in the performance assessment will have to involve qualitative judgments at many points.

u. I. NUCkMA.cut.A TORT COMMlSSIOtl i DOa<ETING & SERVICE SEO~

OFFICf OF THF SECRETA Y Po1tm Copl I ~dd' 4 - tel11 , * 'l , I '\. I ~.

2

4.

p. 22293, discussion following 40 CFR Part 191.14(a):

The proposed 10 CFR Part 60.114 is not "fully consistent" with the thrust of EPA's position on institutional controls. EPA does not believe that future (beyond 100 years) actions can be relied upon to minimize releases from a repository. To be "fully consistent" with EPA, the word "passive" must be placed before "institutional controls" in the second sentence of proposed 10 CFR Part 60.114.

5.

p. 22293, second column, first paragraph following 40 CFR Part 191.14b and p. 22295, third column, final paragraph:

These two paragraphs appear to be contradictory. On p. 22293, the text indicates that 10 CFR Part 60 does not now require monitoring after repository closure, while on p. 22295, the text says that such monitoring is required. Clarification of this issue is needed.

6.

p. 22300, section 60.122:

The change in language from EPA's "widely available" to "reasonably available" is acceptable. The following typographical errors are noted: 0

p. 22295, first column, second full paragraph, fourth sentence:

The word should be "now" rather than "not." 0

p. 22297, third column, next-to-last line:

The phrase should be "(2) an aquifer", not "(2) and aquifer." 0

p. 22298, first column, "Transmissivity":

The phrase should be "thickness of an underground formation" rather than "thickness or an underground formation." 0

p. 22300, first column, "Note 4," fifth line: The word should be "two" not "to."

0

p. 22300, second co 1 umn, "Note 6, 11 second 1 i ne:

The citation should be 1160.112(a) 11 rather than "60.112(c). 11 0

p. 22300, third column, fourth line:

The citation should be "60.112(a) 11 rather than 1160.122(a)." 0 p.22300, third column, 60.144, second line: The word "payment" should be 11 pennanent. 11

3 EPA appreciates the opportunity to work with the Commission's staff in the development of these proposed rules. If we can provide further assistance, please contact Dr. W. Alexander Williams (382-5909) of my staff or Mr. Floyd Galpin (475-9633) of EPA's Office of Radiation Programs. Sincerely, //1//4;;;, d~.:q A~i a~ ~i rsc[~~~ctor Office of Federal Activities

aoewo (,, UNITtt:> STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 NOTE FOR: Docketing and Services Branch Secretary of the Commission Thru: John J. Linehan, Chief ~r Repository Projects Branch o* Division of Waste Management From: Daniel J. Fehringer Repository Projects Branch Division of Waste Management DOCKETED USNRC -as AUG 22 A11 :34

SUBJECT:

COMMENTS FOR DOCKET NUMBER PR-6O (51 FR 22288) Enclosed are comments received in the Division of Waste Management related to the subject proposed rule. Please enter these comments in the Docket File. ~!~~ Daniel J. Fehringer Acknowtedged by rd.* ~

U.S. NUCLEAR REGULATORY COMMISSIOR DOCKETING & SF.PVJ CE SEtTION OF~,r er.., *r,.,r T P Po C Ad OF H - .Specral o.~,n... ""

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. J WM Project I o1 I 0 /(.. Docket No. ---=--- POR~ LPOR --:f;::--, -f1/2r--, 5-NUCLEAR WASTE CONSULTANTS INC.

DOCKETED USNRC .86 AUG 22 ifri :34 U.S NUCLEAR REGULATORY COMMISSION DIVISION OF WASTE MANAGEMENT COMMENTS ON PROPOSED REVISIONS TO 10 CFR PART 60 TECHNICAL ASSISTANC£ IN HYOROGEOLOGY PROJECT 8 - ANALYSIS RS-NMS-85-009 August 15, 1986

NUCLEAR WASTE CONSULT ANTS INC. August 15, 1986 8341 So. Sangre de Cristo Rd., Suite 6 Littleton, Colorado 80127 (303) 973-7495 U.S. Nuclear Regulatory Commission Division of Waste Management Geotechnical Branch MS 623-SS Washington, DC 20555 Attention: Mr. Jeff Pohle, Project Officer 009/5/NWC.003 RS-NMS-85-009 Communication No. 87 Technical Assistance in Hydrogeology - Project B (RS-NMS-85-009) Re: COlllllents on Proposed Revisions to 10 CFR Part 60

Dear Mr. Pohle:

Please find attached comments from Nuclear Waste Consultants (NWC) on the *.. proposed revisions to 10 CFR Part 60. The review was performed by Adrian Brown and Mark Logsdon under Task 5 of the current contract, per your letter of July 7, 1986. The attached conments raise concerns related to five matters, including: o The requirement to include performance assessments in the Safety Analysis Report (60.2l(c)(l)(C)); o The requirement addressing retrievability of waste {60.lll(b)); -o The requirement addressing minimum pre-emplacement groundwater travel time from the disturbed zone to the accessible environment (60.l13(b)); o The proposed revision addressing multiple barriers (60.113(d)); o The proposed requirements for post-closure monitoring (60.144). You will note that three of the five areas of concern address matters that are not of themselves subjects of the proposed revisions. However, it is our understanding from the Office of the Secretary of the Commission that conments on all aspects of the Rule that are affected by the proposed changes are welcomed in response to a Notice of Public Rulemaking. The conments on pre-emplacement groundwater travel time and retrievability echo written positions that NWC has transmitted to the NRC staff over the last year and that the two commenters have raised in a variety of forums with the staff over several years.

REVISIONS TO PART 60 -2 August 15, 1986 Thank you for forwarding these convnents to Dr. Fehringer in WMRP. If you or other members of the Staff have any questions about our c001T1ents or positions, please do not hesitate to contact me. Respectfully submitted, NUCLEAR WASTE CONSULTANTS ?7/~/,-44 Mark J. Logsdon, Project Manager Att: Conments on Proposed Revisions to Part 60 cc: US NRC - Director, NMSS (ATTN PSB) DWM (ATTN Division Director) Mary Little, Contract Administrator WMGT (ATTN Branch Chief) M. Galloway, TTI L. Davis, WWL J. Minier, DBS Nuclear Waste Consultants

PART 60 REVISION COMNTS -1 August 15, 1986 COMNTS ON PROPOSED REVISIONS TO 10 CFR PART 60

1.0 INTRODUCTION

The United States Nuclear Regulatory Commission (NRC) has published a Notice of Public Rulemaking (51 FR at 22288, June 19, 1986) proposing revisions to 10 CFR Part 60 that will conform the Commission's rule to the generally applicable environmental standards of the United States Environmental Protection Agency {EPA) (40 CFR Part 191). Nuclear Waste Consultants (NWC) have been asked by the NRC Project Officer to provide corrments on the proposed changes to the rule (Letter from J. Pohle, NRC, to M. Logsdon, NWC, dated July 7, 1986). The following conments have been prepared by Adrian Brown and Mark Logsdon of Nuclear Waste Consultants. The NWC comments address five matters of concern: o The requirement to include performance assessments in the Safety Analysis Report (60.2l(c)(l)(C)); o The requirement addressing retrievability of waste {60.lll{b)); o The requirement addressing minimum pre-emplacement groundwater travel time from the disturbed zone to the accessible environment (60.113(b)); o The proposed revision addressing multiple barriers {60.113(d)); o The proposed requirements for post-closure monitoring_(S0.144). Nuclear Waste Consultants

PART 60 REVISION COM'ENTS -2 August 15, 1986 Three of the five *areas of concern address matters that are not of themselves subjects of the proposed revisions. However, it is our understanding from the Office of the Secretary of the Commission that comments on all aspects of the Rule that are affected by the proposed changes are welcomed in response to a Notice of Public Rulemaking. The comments on pre-emplacement groundwater travel time and retrievability echo written positions that the two commenters have raised in a variety of fDrums with the staff over several years and that NWC has transmitted to the NRC staff over the last year {e.g., NWC COfTITlunication Numbers 7, 21, 65, 66, 78; Staff/Contractor meetings for Contracts RS-NMS-85-002; RS-NMS-85-009). 2.0 GENERAL COMNTS Nuclear Waste Consultants consider that the proposed revisions that address the numerical requirements of 40 CFR Part 191 are well incorporated by the proposed revisions to Sections 60.112 and the addition of Section 60.115. Additionally, NWC considers that the approaches to incorporating the EPA assurance requirements addressing institutional controls and natural resources are fully satisfactory from our perspective. However, NWC has several specific comments on the approaches presented to accolTITlodating the EPA assurance requirements addressing use of multiple barriers, removal of wastes, and post-emplacement monitoring~ The comments on Nuclear Waste Consultants

PART 60 REVISION COMNTS -3 August 15, 1986 multiple barriers *and removal of wastes lead to our comments on the portions of 10 CFR Part 60 that address pre-emplacement groundwater travel time and retrievability. 3.0 SPECIFIC COMNTS 3.1 PERFORMANCE ASSESSMENTS IN THE SAFETY ANALYSIS REPORT (60.21(c)(l)(C)); In discussing the approach to evaluating compliance with the EPA standards, the staff cites section 60.21(c)(l)(C), addressing quantitative performance.* assessments as part of the Safety Analysis Report. The cited section reads: (C) An evaluation of the performance of the the proposed geologic repository for the period after permanent closure, assuming anticipated processes and events, giving the rates and quantities of releases of radionuclides to the accessible environment as a function of time; and a similar evaluation which assumes the occurrence of unanticipated processes and events. The proposed revision to this section would add a requirement that the results of these analyses be incorporated into an overall probability distribution of cumulative releases to the extent practicable. Nuclear Waste Consultants ~----------- I I I I I I I I I I I i I I I I

PART 60 REVISION COft£NTS -4

• August 15 1 1986 NWC considers that the staff is well advised to use the qualifying "to the extent practicable" in light of the numerous sources of uncertainty that will exist. However, NWC also considers that a similar qualifying scheme be added to the portion of the existing wording that stipulates " *** giving the rates and quantities of releases *** ". As the paragraph is currently stated, NWC considers that it could be interpreted to require an analysis that is more rigorously quantitative than either the data available may justify or than would be required in order to construct a CCDF that would demonstrate with reasonable assurance that the standards could be met.

We believe that the substance of the Staff's discussion in 51 FR@ 22292, Pars. 2, 3, 4 indicates that the staff would find bounding calculations to be an acceptable approach.. to evaluating compliance. We concur with this approach, and we consider that the wording of the requirement for performance assessments would serve better if this approach to addressing inherent uncertainties were incorporated

• 3.2 RETRIEVABILITY OF WASTE (60.lll(b))

NWC is not well qualified to conment on EPA's intent in including an assurance requirement addressing removal of wastes in 40 CFR 191.14(f). We concur with the staff that there appears to be no necessary contradiction between the EPA assurance requirement and the NRC's retrievability requirement. However, NWC would point out that there is a growing body of geotechnical information suggesting that no repository in salt would likely meet a Nuclear Waste Consultants

PART 60 REVISION CQtitENTS -5 'August 15, 1986 retrievability requirement beyond a handful of years, certainly much less than the 50 years that are currently given in the regulation. At the same time, there is a substantial, and still growing, body of earth science and engineering information indicating that for a broad range of anticipated and unanticipated events and processes, salt is a medium that would provide outstanding long-term isolation of the wastes from the accessible environment. (In saying this, NWC is not prejudging the proposed Deaf Smith County site as being acceptable: the licensing case needs to be made on the basis of site-specific data and analyses. We are merely convnenting that there are sound technical reasons to believe that a salt basin in a tectonically stable region would be a reasonable geologic and hydrogeologic setting to consider.. for a potential high-level waste repository from the point of view of long-term isolation of waste.) NWC understands that Section 60.lll(b) reserves to the Cormtission flexibility in the period of retrievability. However, NWC also considers that it would be well to avoid regulation by exception to the maximum extent practicable

• Since it now appears likely that an exception to the SO-year retrievability period would be required for any salt site, NWC recommends that the staff reconsider the SO-year retrievability period.

As an alternative to the current wording, NWC suggests the following: (b) retrievability of waste. (1) **. To satisfy this objective, the geologic operations area shall be designed so that any or all of the emplaced waste may be retrieved on a reasonable schedule Nuclear Waste Consultants

PART 60 REVISION COMNTS -6

• August 15, 1986 that shall be established on a case-by-case basis consistent with the likelihood of failure of the geologic repository system, the emplacement schedule and the planned performance confirmation schedule as they are set out in the License Application (see

60. 21. ** )

This approach would also require an amendment to 60.21 to include the appropriate information in the license application

• NWC considers that this approach is consistent with the original purpose of the retrievability requirement and with the EPA assurance requirement (based on the same rationale presented by the staff in 51 FR@ 22294), while at th~.

same time removing the likelihood of regulation by exception and preserving salt as a viable disposal medium. 3.3 MINIMUM PRE-EMPLACEMENT GROUNDWATER TRAVEL TIME FROM THE DISTURBED ZONE TO THE ACCESSIBLE ENVIRONMENT (60.113(b)) As the staff points out in presenting the proposed changes (51 FR@ 22295), the proposed reduction in the maximum extent of the controlled area reopens, at least in terms of discussion, the Commission's position on pre-emplacement groundwater travel time from the disturbed zone to the accessible environment. NWC considers that the proposed rulemaking provides an excellent opportunity to reconsider the issue of pre-emplacement groundwater travel _time (GWTT) as a performance objective that is reasonably related to post-emplacement Nuclear Waste Consultants

PART 60 REVISION C0"4ENTS -7

• August 15, 1986 performance (as its inclusion in Section 60.113 would indicate).

NWC has discussed with the Staff its reservations about the GWTT requirement on a variety of occasions (e.g., NWC Communication Nos. 7, 21, 65, 66, 78). Rather than repeat the concerns in detail, the following list summarizes the principal areas of our concern: o GWTT is not a good measure of post-emplacement flux of radionuclides to the accessible environment

• o The inclusion of a siting measure in the post-emplacement portion of the rule is not consistent.

o Since the Rule requires an evaluation of post-emplacement perfonnance, the inclusion of the GWTT requirement duplicates rather than simplifies the evaluations that are required in any event. o There is a high likelihood that application of the GWTT requirement would eliminate any site where fracture flow may be an important flow mechanism, regardless of the long-term isolation capability of the system related to low mass flux (and physical and/or geochemical controls on radionuclide flux in a fracture-dominated system). o Alternatively, the Co111T1ission could be placed in a position of having to regulate by exception if it were to find that the EPA standard is likely to be met but that the GWTT requirement could not be met. Nuclear Waste Consultants

PART 60 REVISION COM'ENTS -8 August 15 1 1986 For details on these and other aspects of our concerns, please see the referenced written corrmunications. NWC considers that the Corrmission should reconsider the advisability of retaining the GWTT requirement in the current form. We consider that an appropriate performance measure (post-emplacement groundwater travel time) is incorporated into the evaluations of the overall EPA standards and that the matter of an appropriate siting measure is adequately dealt with through 10 CFR 960, the DOE Siting Guidelines, over which the Conmission has concurrence. Thus, we consider that the Commission's ability to protect the public health and safety and the environment is fully retained without the GWTT requirement, which therefore should be dropped from the Rule. 3.4 MULTIPLE BARRIERS (60.ll3(d)) When related to the definition of "Barrier" presented in Section 60.2, the proposed wording of Section 60.113(d) seems likely to limit the flexibility that the Commission has to waive or modify subsystem performance objectives, so long as the overall EPA standards are likely to be met, by requiring that each barrier "prevent or substantially delay(s) movement of water or radionuclides". Our concern with the potential loss of flexibility is particularly acute if the Staff and Commission retain the GWTT requirement, as described above. Nuclear Waste Consultants

PART 60 REVISION COMENTS -9 -August 15 1 1986 NWC proposed that the Staff act to retain the Commission's flexibility by applying one or more of the following options: o Modify the definition of barrier in 60.2 to emphasize reduction in radionuclide flux (rather than travel time, which would act to reduce the ultimate dose to individuals or populations only through the mechanism of radioactive decay rather than through the direct isolation capability that exists with minimization of flux); o Move proposed 60.113(d) to some place in the Rule where it has less impact on the flexibility set out in the current wording of 60.113(b); o Revise the wording of proposed 60.ll3(d) to include provisions for the sort of flexibility that is inherent in the current wording of 60.113(b). NWC also recommends that the definition of "Barrier" be modified to include the proposed limitation on radionuclide flux regardless of the Staff's position on the broader question of incorporation of the EPA assurance requirement, for the reasons stated in the first bulleted suggestion above

• Nuclear Waste Consultants

PART 60 REVISION COtt£NTS -10 - August 15, 1986 3.5 POST-CLOSURE -MONITORING (60.144) NWC recognizes that conformance with the EPA assurance requirement for post-disposal monitoring seems to lead to the need for additional requirements in Part 60. In general, NWC considers that the approach of addressing the issue in the License Application {60.21) and in the amendment for termination of the license (60.52) as well as in the specific requirement of a post-closure monitoring system {60.144) is sound. However, our experience with required monitoring programs in other environmental actions is that they must be carefully designed to specific technical (including temporal) criteria if they are to be effective and closed-ended. There must be a clear understanding of the types, quantities and schedule of information that are required to reach a decision. In the absence of such direction there is a tendency (and substantial history) of inefficiently designed monitoring programs that do not lead to timely or improved decision-making, in large part because neither applicant nor regulator has a clear idea of how the additional information would or could be used to reach a decision. While NWC appreciates the attraction of making DOE responsible for defining and developing appropriate post-closure monitoring, we are concerned with two aspects of this approach. First, it risks a charge that NRC is effectively delegating part of its licensing function to DOE. Secondly, and probably more importantly, it invites the intrusion of new areas of controversy (and delay) into the license review process by leaving potentially important aspects of Nuclear Waste Consultants

PART 60 REVISION COMENTS -11

• August 15, 1986 the license application and review process without criteria for evaluation by the Staff and Cormiission.

The Staff will ultimately need to evaluate what types, quantities and schedules of information it would find acceptable for demonstrating compliance with post-closure monitoring requirements. Since this step needs to be taken at some time, NWC recorrmends that the Staff consider expanding the appropriate sections of the proposed Rule to include specific types of post-closure performa,nce that need to be monitored and criteria for demonstrating satisfactory performance to the standard of reasonable assurance. At a minimum, we consider that the Staff should spell out the purpose of such monitoring in considerably more detail, as a preliminary step to defining criteria. We consider that such rationale and modifications would need to be based on an evaluation of how a licensing decision could be affected by monitoring data. NWC appreciates that this is no simple matter and could be very time-consuming. Thus, as an alternative, NWC would recommend that the current proposal go forward, but that the Staff develop a program to address criteria with the intent of pursuing the matter through subsequent rulemaking or some quasi-regulatory mechanism such as Format and Content Guides. Nuclear Waste Consultants

i ~. PR -UJ p J!ULI.f!,J Fi,U,:&I'?) DuKE PowER GoMP. P.O. BOX 33189 OOL KEH.L GHARLOTTE, N.G. 28242 L: SNRC HAL B. TUCKER TELEPHONE (704) 373-4 :)31 VJOE P RESIDENT S UCLEAR PRO D UCTIO N 116 Al,J; 22 All :06 August 15, 1986 OFFICE Or SE. L, r:L fAK Y DOCKETING & srRVICf. BRANCH The Secretary of the Connnission U.S. Nuclear Regulatory Connnission Washington, D.C. 20555

Subject:

10CFR. Part 60 Disposal of High Level Radioactive Wastes in Geologic Repositories; Conforming Amendments Proposed Rule

Dear Sir:

In the Federal Register Volume 51 No. 118 dated July 19, 1986 the Nuclear Regu-latory Connnission published for public comment the subject proposed rule. Duke Power Company submits the following comments for consideration by the Commission prior to finalizing this rule.

1.

3.

This proposal seems to imply that a currently stable geologic area will also be stable after deposition of the high-level radioactive waste. Since heat (generated by the deposited material), pressure, and time (in this case at least 1,000 years) are the variables associated with metamorphosis of rock formations, it seems an unlikely assumption that the rock formation will not change. Thus, original analysis of potential pathways of radionuclides may be inaccurate at some future time. Provisions for groundwater monitoring and associated calculation of pollution risk seem vague. Extensive research must be completed before knowing the hydro-geology of an area and especially before knowing how radionuclides will be transported through that area over time. As depicted in the previously published NRC Technical Report entitled Radionuclide Migration in Ground Water, (NUREG/CR-4030), there remains much uncertainty in the area of radio-nuclides in groundwater. The idea of multiple barriers, both engineered and natural (51FR22296), for the repository is an excellent protective measure. Very truly yours, H.B. Tucker JSW/58/jgm

U, NUCttA t Ut.A f~ COMMISSI08 DOCKETl1 <.:, S~RVfl'F t;FbtON OFr-'ICE Y

"86 Secr*etc="1ry of the Commi ssi op. f . k'.Y U. \3: Nucle::r Re?L'.l~cd:orf/c~~f("*_(~~itiftCL l-1Ja~;h 1 ngton UC. 2U5!:i5 BR ANLH Attention: Docketing and Services Branch

Dear MR. Secretary:

/21ugust 15, 1986 The following are comments on recent proposed changes to 10 CFR 60 concerning DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES; CONFORMING AMENDMENTS--FR 22288 of June 16, 19fJ6.

1. In connection ~-,Jith the proposal to invokE? the "individual prot<-?ct ion II requirements of 40 CFR 191. 15 and the "gr~ound ~*Ji=1ter*

protection requirements of 40 CFR 191.16 the proposed rule does not accurately convey the intent of the EPA standard regarding application of the EF'P1 tE*rm "undi sturb£?d perf t-mance." In addition the EPA intent (considering the background information provided with the standard) in their use of the phrase "significant proc:e!:;;!5E!i,, and events" :i.n 191.13(a) is is not conveyed by the proposed rule. Specifically, the respective changes to part 60 make use of the te1*-rns II anticipated processes and E*vents" and "unanticipated prc;c£-?sses and event!:;" to spF:?ci fy the range of processes and events meant by EPA. Since these two terms as defined by Part 60 do not include expected human induced events which are not cons;id£0r-ed "human intr-usion", f t-e>:ample e>:pected i1~r-i1::1ation in the accessible environment which affects hydrologic gradients from the repository to the assessable environment, the proposed rule change omits the requirement to consider this class of evE:nts. I pru~use th2t the rule invoke the EPA standa~d verbatim and that the definitions of pertinent terms in the EPA standard be added to the list of seven terms already proposed for Part 60. For e:-: Elmp 1 f:? the terms II i:lqui fer", "undi sturbe~cl per-f ormance" and 11 pet-f onnance assessroent" should be added to the tE?rms defined in Part 60 to accurately invoke the EPA standard.

2. The use of the term II contai nmE*nt" in the EPA standar-d is inconsistent with the definition of cc;ntainment in Part 60. For example in the Part 60 term confinement within a designated boundary is the operable concept, whereas in the EPA standard conte>:t "ccmtainmE*nt" includes the idea of slo~*J release to the accessible environment, more in keeping with the definition of "isolation" in Part 60.

This differ-enc:e should be recognized in tht? just if i c:,:1.t ion of F'i:°lrt 60 2,nd EPA, s "containment" e-:*quated to NF:C's "isolation".

D.S. NUCLEAR REGULATORY COMMISSIOl'!I DOCKETING & SERVICE SEtTION OFFICE OF H'E '" EC"RET ARY Q C Tl tr rr 'I <: 'ON ?/;6/r~ 4 - r/,t,7e-r,

3. The term II a qui f E*r II is an i mpm-tant b2nn in the EPP, standat-d and may not be consistent with the intent of the use of the term el~;e~*Jhere in Par-t 60.

For-e;-:ample, cis usE?d by EPA "aqui*fE::*r" includf?S a g,~oJ.,_\J-l of gEC?ologic formaticins capable of yi;,:~lding a significant amount of water. This could include a number of water bearing zones deep into the earth any one of which by itself would not be considered an aquifer in the context of existing usage in Part 60. I recommend that the definition, as suggested above, be incorporated into Part 60--it being necessary to invoke the EPA standard, and the rest of Part 60 be reviewed to assure the term as defined does not contradict the intent of other provisions of Part 60. If there is a contradiction, this shciuld be identified ar.d a n:?::=,ol ut i u11 i ncorpor** atE?d into the proposE*d change,; *

4. The ter-*m 11 d i 1,;posal system" as def i nE)d by the EPA standar-d :i. s not consistent vJi th the 1\JF:C tenn "(Jeol og i c n:2posi tor-y" in contrast to the claim in the proposed changes to the rule.

For F.J>:ample the EPA tenn, "disposal sy~;tem", htould include the vJaste packages and shaft and borehole seals, as well as, backfill materials. These items are not included in the current Part 60 definitiDn of 11 1:;ieolD(;Jic t-epositm-y 11 This conflict should be resolved by including the definitiDn of 11 dispo~;.::.-=il systt~m" from the EPA standard in the change to Part 60. The term is operable in the "assurance re qui rements 11 of the EPA standar-d and should be used in the corresponding sections of Part 60 which are intended to invoke the 191.14.

5. It is recommended that the assurance provisions of 191.14 be included in Part 60 verbatim to assure they are observed by the applicant in full, consistent with the Commission's intent.

Anything less implies the requirements will not be invoked by the Commi ~,si on

• Sincerely, F. F:obert Cook 1955 Jadwin Avenue Richland, Wa. 99352

' WARREN A. BISHOP Chair STATE OF WASHINGTON DOCK ETH' USNRC NUCLEAR WASTE BOARD '86 AUG 20 P 3 :12 Mail Stop PV-11 Olympia, Washington 98504 (206) 459-6670 August 15, 1986 Secretary of the Commission Attention: Docketing and Services Branch United States Nuclear Regulatory Commission Washington, D.C. 20555 Re: Proposed Rule--Disposal of High-Level Radioactive Waste in Geologic Repositories~ Conforming Amendments

Dear Sir:

This is written to provide comments in response to your Notice in 51 Federal Register No. 118, beginning at page 22283, relating to the above-entitled subject.

1.

Incorporation of Environmental Protection Agency Repository Release standards Into Nuclear Regulatory Commission, 10 CFR Part 60 It is understood that Nuclear Regulatory Commission (NRC) proposes to incorporate directly into Part 60 the "high-level waste" standards adopted by the United States Environmental Protection Agency (EPA) on September 19, 1986, with minor changes to "maintain the overall structure of Part 60." In this regard, the NRC, by the subject rule, states that its intent with regard to the changes is that "no substantive changes are intended in the requirements of the EPA standards or in the environmental protection they afford." Against this backdrop, we support the "direct incor-poration" approach taken by your agency. There is some question, however, whether such an approach is timely at this time. Presently, the validity of the standards, proposed for direct incorporation, is being questioned in Natural Resources Defense council, Inc, v, united states Environmental Protection Agency. No. 85-1915, 1st Circuit Court of Appeals. Oral argument in that case has been set for September 10, 1986. In this light, early adoption of the proposed rules appears premature. The better course may, indeed, be for the NRC to withhold further action on the proposed rule pending resolution of that case. _ AUG 2 11986 rd* *~_,f,.,.1.!a/w_al.titutiiiif

u. : MielJ..

C.MM OCKET 0FFl OF IJ d

Nuclear Regulatory Commission August 15, 1986 Page 2

2.

EPA Assurance Reguirements The resolution of the jurisdictional dispute pertaining to the power to mandate assurance requirements designed to ensure the long-term satisfaction of containment require-ments appears to be satisfactorily resolved. We have not had a chance to examine the EPA's comments to you with regard to the subject proposal. After we have had a chance to review that document, which will likely be of considerable value, we may supplement our comments to you in a timely fashion. Similarly, we may submit further comments after the litigation, noted earlier, has been completed

• Thank you for the opportunity to comment on your proposed rules.

Very truly yours, t#~s~ Chairman WAB :gb

7801 .., IIUMB(II PR BUL& -t~ 1!) {.~I ~R.,t,t,t.FV (!./ M,. RO..,.. -* BLVD. #62 PHILA., PA 19152 8 86. 00CK£Trn USNRC, Secretary of the Commission U. S. N. R. C. Washington, D.C ** 20555 "86 AUG 19 All :sa Dear Secretary; Please accept the following letter Proposed Rule 10CFR60 Disposal of Conforming Amendments. OFF1c£ oi:: Sh 'lrMk ~ DOCKETING ~ :rnv,cr as my comments on theBRANCI-/ HLW in Geological Repositories First of all, I wish to point out my appreciation to the Commission for reacting so favorably to some of my suggestions: 60. 122 (c)(18) has been added to take into consideration my concern with unique naturally occurring material that is not reasonably available rrom other sources. My example was attapulcus clay which is not particularly valuable but is the best diatomaceous earth that can be found for several chemical processes and only occurs in Attapulcus, Georgia. Also much of the wording that describes postclosure monitoring addresses my concerns but not completely. Unhappily I cannot really agree a nd must take strong exception to many of the other additions and changes. 60. 21 is added to emphasize consistency with EPA standards but does the opposite. 60. 21(C) uses the word assume in two places. Assuming anything at this point in our innocenee of data is an invitation to disaster. Instead the word"assumption" should be removed and replaced with the phrase,"extrpolations and interpolations from known data.ii 60. 21(9) A general description for post permanent closure monitoring is inadequate. This section should be reworded thus, " (9) A program with specifics for monitoring after closure of the geological repository. " A section (10) is needed here specifying financial commitment. The staff should work out how the post closure monitoring shall be assured financially. Conversely, 60. 51 could be made a part of the application. Add a sentence in 60. 52(c)(3) that the results from post permanent monitoring confirm the expectation that the repository will comply with 60. 112 and 60. 113 but also how the comfirmation is derived or related to the data from monitoring. 60. 10 1 (a)(2) appears to be written in a weasel worded fashion that tells any licensee to do what they please and that the results will be acceptable. Also the statement says that the Commission can find reasonable assurance even where expert opinion finds a lack of assurance. Throw out all the weasel words and state," The Commission must find that the majority of accurate applicable data supports a finding of adequacy or no license shall issue. ~

l(Alf IX>dC:ETING FICE OF THE 0 cum r Oflmtrk O,~ A 'f'I C

• Sp cief Di.tr I n

MA VIN L ¥'/I 7801 ROOSEV LT BLVD. # 62 PHILA.* PA 19152 2. The standard of 2 liters a day seems inadequate for a workingman in a desert. Many of the sites for repositories will be in des erts. I suggest that the Commissioners take an B hour hike in the local e of a proposed repository and see if they are comfortable with 2 liters per day of fluid. Change that _ inadequate 2 liters per day to a gallon per hour for the B hour working day and more for overtime. I cannot understand what the H you are trying to say in60.114. Do you or do you not use insti t uti onal co ntro ls and where? Also spell out what constitutes institutional co ntrols. 60. 115 is totally backwards. Instead of limiting the total amount of releases from a repository, the 60_115 merely says that the more you put in a repository, the more that you are allowed to leak out of a repository. Eventually if the Licensee is allowed to leak more and more out Jf a repository, the leakage will cause exposures greater than that in 60. 111(a)( 1) an d also the EPA require ments. Also Table 1 ignores many nuclides. Does that omission of a nuclide from table 1 mean that the nuclide need not be considered in the calculation of exposures in 60. 111(a)(1)? Apparently the licensee can ignore exposure from all nuclides not inTable 1. This omission of many nuclides is very dangerous to the health and safety of the public as many experiments will also be in the repository . Gome of these specail cases will contain large quantities of the nuclides not mentioned in Table 1. The way of ca l culating in Notes 2 3 and 4 is complicated without justification for the compiexity. Just use the actual values to determine the release limits and units of waste. The complex calculations in Notes 2 and 3 actually reward licensees for high burnup in their fuel and fine licensees for low burnup fuel. Rewards and fi nes for burnup in fuel is not the responsibi lity of the regulator.

MARVIN LEWIS 7801 ROOSEVELT BLVD. #62 PHILA., PA 19152 3. 60. 144 makes a mockery of the entire rule as it gives a licensee an out

• If the licensee does not wish to do any post closure monitoring., the 60. 144 states that the licensee or operator merely need state that the post closure monitoring will degrade repository performance and thelicensee or operator need not do any monitoring at all.

The loophole can be easily cl osed by requiring that the licensee provide specific post closure monitoring pl an in the application anJ that the post closure monitoring plan be such that the monitoring will not degrade the repository performance or a l icense will not issue * (215) 624 1574

OOC:KETEO USNHC DEPARTMENT OF ENERGY & TRANSPORTATION .86 AUG 19 All :55 Watkins Building, 510 George Street Jackson, Mississippi 39202-3096 601/961-4733 August 15, 1986 Samuel J. Ch ilk, Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Services Branch

Dear Mr. Secretary:

Re: Comments on the proposed rule, 1 o CFR 60 "Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments" ( 51 FR22288) The State of Mississippi has asked the members of the technical community to review the proposed rule which conforms 10 CFR 60 to the EPA 1s "Environmental Standards for the Management and Disposal of Spent Nuclear

Fuel, High-Level and Transuranic Wastes"

( 40 CFR 191) published September 19, 1985. Attached you will find the comments compiled by the Nuclear Waste Program staff and the Mississippi Mineral Resources Institute. Thank you for the opportunity to comment on this proposed rule and your consideration of these comments. JWG :cpf Attachments Very tr:uly yours, ').,* v {t,'r __,u-tJ..L,.~ John W. Green Executive Director cy: Lisa Spruill, Mississippi Special Assistant Attorney General Allen Benson, DOE-HQ Nuclear Waste Technical Review Committee Nuclear Waste Policy Advisory Council

1h 51 Mia.EAR REGU 0 DOCKETING & OFFICE OF OF THE C Postmark Docum, I. o~te r/t s If C I Copi.s !Add' I C

• 11 1 educed 4

lpeciet Oi.,t ril:,utiitn

TO: FROM: SUBJECT : DEPARTMENT OF ENERGY & TRANSPORTATION MEMORANDUM

• Mr. Ron Forsythe, Manager &-

Nuclear Waste Program U Don Christy -;v/ / Senior Nuclear Waste Specialist,,)<<.../ Review of Proposed Changes to 10 CFR 60 DATE: August 15, 1986 I have reviewed the proposed changes to 10 CFR 60, 11Disposal of High-Level Radioactive Wastes in Geologic Repositories" (51 FR 22288). The purpose of this rulemaking action is to incorporate the EPA "Environmental Radiation Protection Standards for Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes" (40 CFR 191). Included in this review is PRM-60-2 as amended on September 30, 1985. The majority of changes in the rule deal with the addition of release limits and language dealing with post closure monitoring. The EPA assurance requirements (40 CFR *191.14) have been incorporated by intent due to the fact that NRC does not believe that the EPA has the authority under the Reorganization Plan No. 3 of 1970 to promulgate such requirements. I have the following comments on the proposed additions: In section 60.2 there is a problem with the definition of 11significant source of groundwater11

• The expression, 11 is within 2500 feet of the land surface 11 should be reconsidered.

There are places at which water of drinking quality (less than 1000 ppm TDS) exist at 3000 feet below land surface. There is nothing magical about the 2500 foot requirement. Consideration to dropping the yield requirement should also be given. Wells with yields for less than 10,000 gpd are sources of drinking water. The yield also depends on many things such as well completion techniques. Well construction by design may be the limiting factor in productivity. Many water systems also use spaced cluster wells for production. There is also a lack of consideration of the fact that many rural water supplies are not on 11community water systems". Many of these families have home wells which serve as the source of drinking water. The definition of "special source of groundwater" is very subjective. The terms "thousands of persons" and "reasonable alternative" should be further clarified. The issue of 11 irreplaceability 11 should be considered. It may be very difficult to determine if one source is more irreplaceable than

MEMO RAN OUM to Ron Forsythe August 15, 1986 Page Two another. For example the Miocene aquifer system is to southern Mississippi as irreplaceable as the Ogallala Aquifer is to Texas. In section 60.21(c) (1) (ii) (C) thought should be given as to whether an "overall probability distribution" will adequately reflect the uncertainties reflected by each component function. Uncertainties may not be linearly additive so consideration to nonlinear addition should be given. Jn section 60.112(b) there is no reason to deviate from the requirements spelled out in 60. 111 (a) ( 1). Although the dose calculation at 1000 years will be based on performance assessments, the standard of 25 mill irems to the whole body, 75

• millirems to the thyroid and 25 mill irems to any other critical organ should be applied uniformly. In this section as well as in section 60.111(a)(1) we agree with NRC's footnoted statement on page 22289 that the "and 11 should be replaced by "or". Likewise in section 60. 112(b) the dose equivalents should be 25 millirems whole body, 75 millirems thyroid or 25 millirems to other critical organs. It is not always wise to rely on the present day interpretation being carried into the future.

In section 60. 112(c) (2), the standard should not allow the further contamination of water already containing substantially high levels of radionuclides. The spirit of the State Drinking Water Act is to prescribe specific maximum contaminant levels for finished water. The State Drinking Water Act applicability is to community water systems, but would not protect an individual whose source of drinking water was not from a community water supply. Such an individual could conceivably be a maximally exposed individual using the philosophy as proposed in 60. 112. Jn section 60. 144 we recognize that the NRC has the regulatory authority and may not impose requirements past its licensing period. The Department of Energy should continue the

• monitoring effort indefinitely. The last sentence in this section should be removed.

In the background section on page 22290 the practicality of

• monitoring is questioned.

Although monitoring will not demonstrate compliance, it will provide a great deal of useful information. The first method outlined for demonstrating compliance

• may not reflect uncertainties in data and projections. The second method places a great deal of reliance on engineeried barriers which may not be conservate. The Commission should not assume that current patterns will remain

MEMORANDUM to Ron Forsythe August 1 S, 1986 Page Three unchanged. Patterns have changed in the last 100.year s and will probably change in the next 100 years *. It should be left to the license applicant to demonstrate whether or not patterns will change. Most of the changes made in the proposed rule as a result of this rulemaking effort were outlined

• n the Nevada and Minnesota Petition for Rulemaking 60- 2 as amended.

If there are any questions, please contact me * /pf

Old Chemistry Building University of Mississippi University, Mississippi 38677 (601) 232-7320 The Mississippi Mineral Resources Institute Mr. Don Christy Mississippi Department of Energy and Transportation Watkins Building 510 George Street Jackson, MS 39202

Dear Mr. Christy:

August 6, 1986 As per your request, the Nuclear Waste Isolation Team has reviewed the proposed Nuclear Regulatory Commission rulemaking. We feel that there is but one major point of concern. This concern relates to the absence of hydrologic monitoring after site closure. The attached comment reflects our thoughts on the issue. rw Enclosure The University of Mississippi Sincerely, Charles Swann Nuclear Waste Isolation Team RECEIVED AUG 11 '86 NWP

Proposed Rules - P. 22290 Groundwater Monitoring "Individual and groundwater protection requirements - The individual and groundwater protection requirements are applicable for the first 1,000 years after permanent closure of a repository. Monitoring is not practical for this period of time and the applicant will therefore be required to demonstrate compliance with these requirements through analyses of projected repository performance." The proposed N4R.C. addition to Part 60 requiring post-closure groundwater monitoring is necessary not only to bring NRC and EPA regulations into agreement, but to provide a measure of protection to the citizenry living adjacent to the site. The discussion cited above indicated that long term (1,000 years) monitoring is not practical. It appears to us that long term monitoring 1/4,.snot only practical but necessary to ensure that model generated projections are valid. After repository closure there is no means of evaluating or perhaps even identifying an unanticipated event which might compromise waste isolation. A series of maintained monitor wells could prove useful to alert the D.O.E. that an "unanticipated event" has become reality as well as to provide an "early warning system" that could alert the D.O.E. that radionuclides have entered the groundwater prior to them reaching public water supplies. If it is practical to conduct research to design the repository itself, it should equally be practical to design and maintain a system of monitor wells. Therefore, the N~R.C. should require long term hydrologic monitoring.

R~6 ewemm iWLi [SI Fi,l,~,t,?f EDISON ELECTRIC IN 5 TIT UTE The association of electric companies 111119th Street, N.W. Washington, O.C. 20036-3691 Tel: (202) 828-7400 Secretary -U. s. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing and Service Branch (/i} LORING E. MILL~. Vice President DOCKETED USNRC ~~ AUG 18 P 1 :32

Subject:

Proposed Rule Concerning Disposal of High-Level Radioactive Waste in Geologic Repositories; Conforming Amendments (51 Fed. Reg. 22,288)

Dear Sir:

These comments are submitted on behalf of both the Edison Electric Institute (EEI) and the Utility Nuclear Waste Management Group (UNWMG). We have reviewed the above-referenced proposed rule and are of the general view that the amendments offered for comment are appropriate for conforming existing NRC regulations to the environmental standards for management and disposal of high-level radioactive wastes promulgated by the Environmental Protection Agency (EPA), and to accommodate the "assurance requirements" contained in EPA's regulations. EEI/UNWMG believe, however, that certain improvements in the rule are desirable and specific suggestions are set forth in the detailed comments attached to this letter. In addition, we wish to emphasize the importance of efforts underway to foster a common technical understanding of, and to resolve, issues prior to the receipt of a license application. We especially encourage ongoing NRC/Department of Energy technical discussions concerning matters pertinent to licensing requirements. These discussions, together with appropriate rulemaking proceedings, should help to identify, narrow and resolve issues. These steps are vital to preparing for and assuring efficient repository licensing. We would be pleased to discuss these comments with you in additional detail. If you have.any questions or if we may otherwise be of assistance, please do not hesitate to contact us. LEM/rgp Enclosure Sincerely, ~ -~

• Mills

I.* 'i 'Mf!; IN TION ICE OF THE SECRETARY 1ft COMMtS I

r Comments of Edison Electric Institute and Utility Nuclear Waste Management Group on Proposed Rule: Disposal of High-Level Radioactive Wast es in Geologic Repositories; Conforming Amendments (51 Fed. Reg. 22,288) A. COMMENTS ON SUPPLEMENTARY INFORMATION (1) p. 22,289, col. 2 -- In its discussion of reasonable assurance, the Commission states the belief that the "concept of reasonable assurance, although somewhat different from previous usage in reactor licensing, is appropriate for evaluations of repository performance where long-term issues and substantial uncertainties are inherent in projections of repository performance." Earlier, however, the Commission has noted that, with respect to waste disposal, the reasonable assurance standard in addition to being commonly used and accepted in the Commission's licensing activities, allows the flexibility necessary for the Commission to make judg-mental distinctions with respect to quantitative data which may have large uncertainties (in the mathematical sense) associated with it. (48 Fed. Reg. 28,204.) EEI/UNWMG agree that the reasonable assurance standard, as applied in reactor cases, does provide sufficient flexibility for use in repository licensing. Accordingly, the reference to a "somewhat different" standard in the Supplementary Information accompanying the proposed rule should be deleted. Attachment

2 - (2) pp. 22,291, cols. 1 & 2 -- In the paragraph describing Figure 2, the last sentence should state that "the entire CCDF must lie below the 'stair-step' constraints," and not that "the entire probability distribution" must lie below such constraints (emphasis added). (3) p. 22,292, col. 3 -- This page contai ns a discussion of the importance of establishing common technical understand-ings and resolving issues -- where it is practi cable to do so -- prior to the filing of a license application. In particular, the notice states that: As issues mature, the Commission will, where appropri-ate, use the rulemaking process to seek resolution of issues where a licensing proceeding might otherwise encounter difficulties due to ambiguity regarding acceptable assessment methods. EEI/UNWMG support the use of rulemaking and encourage its use as an aid to the early resolution of licensing issues. In this connection, EEI/UNWMG believe that it would be helpful if the Commission were to develop -- in conjunction with the Department of Energy -- an overall rulemaking plan, describing the subjects and timing of anticipated rulemakings. Such a plan would not only help assure a comprehensive program, but aid in establishing an appropriate sequence of actions.

3 - B. COMMENTS ON SPECIFIC SECTIONS OF PROPOSED RULE (1) 60.10l(a){2) -- The firs t portion of this proposed section reads as follows: While these performance objectives and criteria are generally stated in unqualified terms, it i s not expected that complete assurance that they will be met can be presented. A reasonable assurance, on the basis of the record before the Commission, that the objectives and criteria will be met i s the general standard that is required. For § 60".112, and other portions of this subpart that impose objectives and criteria for repository performance over long times into the future, there will inevitably be greater uncertainties.... The expression "greater uncertainties," however, is somewhat ambiguous. Accordingly, the words "than exist in cases involving predict ions over the nearer future, and some reliance on prevalent expert j udgment is expected " should be added to the language quoted above. In addition, the last two sentences of the proposed section state: Substantial uncertainties are likely to be encountered and sole reliance on numerical predictions to determine compliance may not be appropriate. In reaching a determination of reasonable assurance, the Commission may supplement numerical analyses with qualitative judgments including, for example, consideration of the degree of diversity of redundancy among the multiple barriers of a specific repository. To further clari fy this point and, in addition, to emphasize the rule of judgment in these compliance evaluations, the following l anguage should be substituted:

4 - The Commission anticipates, however, that assessments of long-term compliance will involve use of expert judgment to estimate performance and to substantiate those estimates. Verification of judgment reliability will be sought through techniques such as consideration of natural analyses, bounding estimates, and use of multiple independent estimates. Minimization of reliance on judgment will be sought through means such as conservative desi gn and barrier redundancy. (2) § 60.144 -- In the second line of this section, the word "payment" should be "permanent."

llllleD R lll)POlffl w p -&,tJ ($) {5/t=l,t,t United States Department of the lnt~fc_\~frn Mr. Samuel J. Chilk OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 Secretary of the Commission Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chilk:

USNRC "86 ALE 18 P 1 :32 A,Qffl_C,t_OL.S.c. ~"L iAR y IIQCI~ lliflml Sf RVICf. BRANCH The Department of the Interior has reviewed the proposed rule for disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments as noted in the Federal Register dated June 19, 1986, and has the following comments. Section II, page 22292, Treatment of Uncertainties Levels of uncertainty regarding the analyses of long-term repository performance will probably be the key technical issue at the time of licensing. The NRC has implicitly identified it as such in this section. In addition, Part 60.101 further elaborates the need for uncertainty accounting throughout repository operations. Unfortunately, neither Section II nor Part 60.101 is well represented in 60.111, 60.112, and 60.113, which deal with pre-and post-closure repository performance. It is recommended that this subject receive more emphasis in Part 60. Part 60, page 22298, Clause 60.51 License Amendment for Permanent Closure Item (ii) does not address the associated uncertainties of monitoring various repository parameters. Performance monitoring is subject to the same uncertainty in post-closure as during pre-closure. In addition, it is recommended that Part 60.144 reference Part 60.51. Sincerely, fr~~~~ Environmental Project Review

C '/ r tfl/Ft I 1. 4 f./)f, ?ik,-~ 7/~ d21/h.fj~ ~ -

STONE 8 WEBSTER BOSTON NEW YORK CHERRY HILL. N.J. DENVER HOUSTON DALLAS PORTLAND, OREGON RICHLAND, WA WASHINGTON. O.C. ADDRESS ALL CORRESPONDENCE To"86o. ~b'S zJ&* f'T2T~ MA 02107 W. U. TELEX ; 94-0001 94*0977 OfFIC1.. OF 51-Ckt fAk OOCKETtNG & SERv1cl BRANCH DESI GN CONSTRUCTION REPORTS EXAMINATI ONS CONSULTING ENGINEERING Secretary of the Commission August 14, 1986 U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Services Branch DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES; CONFORMING AMENDMENTS PROPOSED RULE 51FR22288; June 19, 1986 We are pleased to submit our comments on the subject proposed rule. The "Background" section for the proposed rule states that the conforming amendments "involve direct incorporation within Part 60 of the substantive requirements of the Environmental Protection Agency (EPA) standards". Because of the requirement in the Nuclear Waste Policy Act of 1982 (NWPA) that the NRC regulations shall not be inconsistent with the EPA standards, the NRC should ensure that an effective mechanism exists to review future changes to the appropriate EPA standards for potential impact on the NRC regulations. Section 60.1 indicates that the intent of the regulations in Part 60 is to ensure compliance with the NWPA as it pertains to geologic repositories

• We suggest that Section 60.1 should also state that 10CFR60 directly incorporates the EPA standards promulgated in 40CFR191.

The "Background" section does include discussion to this effect; however, the "Background" section is not part of the regulation. The jurisdictional problems alluded to as the reason behind the NRC's decision to directly incorporate the EPA standards into Part 60 might still arise unless the regulation states the equivalency between the two parts. Section 60. 2: In definition of "controlled area", in the seventh line, change "form" to "from". Section 60. 2: In definition of "transmissivity", in the second line, correct spelling of "integrated". In the third line, change "or" to 110£11

• Section 60.2:

In definition of "uranium fuel cycle", in the sixteenth line, correct spelling of "special". by

I, !At l{<:(/(_Afc Y C'0MMf5: IOcKETtNG & SERVICE SEcr,o OFFlcE OF THE SECRETARY ()F THE C011 ISS ION I

2 Section 60.10l(a)(2): In the eighteenth line, change "may" to "many". Also, the portion of the sentence beginning at this point is confusing. We suggest the sentence (beginning at the fifteenth line) be changed to read: "Proof *** over time periods of many hundreds of years is unobtainable." Section 60.115: The first note following Table 1 should be identified as "Note 1". Section 60.115 Note 1. (c): In the first line, correct spelling of "gamma". Section 60.115 Note 4: In the fifth line, change "to" to "two". Section 60.144: In the second line, change "payment" to "permanent". We appreciate this opportunity to comment on the subject proposed rule, and hope that the above comments will assist you in i ts finalization

• R. B. Bradbury Chief Engineer Nuclear Technology & Licensing Division DJC:ht

~

==1111==PR- ~ (_ 5 I /:=I!.,1,,2 'R Department of Energy Washington, DC 20585 AUG 1 4 1986 Secretary of the Com.mission U.S. Nuclear Regulatory commission Washington, D.C. 20555 Attention: Docketing and Services Branch

Dear Sir:

DOCKtrEr USNRC FFIC£ o ~£ OCKETING s'l iAt<. BRANCH RVlcr on June 19, 1986, the Commission issued for comment a proposed rule, 10 CFR Part 60, Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments (51 FR 22288), which is intended to conform 10 CFR Part 60 with standards for the management and disposal of high-level radioactive wastes promulgated by the Environmental Protection Agency. The inter-pretations of the EPA standards and the analysis described in the proposed amendment involve substantive, complex technical issues and major policy issues. We appreciate the opportunity to comment on these important issues and are in the process of preparing comments.

However, we find we have not been able to complete our review and comment preparation in the allocated 60 day period.

Thus, we hereby request a 30-day extension of the comment period. Our comments are extensi ve and we would expect to be abl e to submit them to the Commission within this period of time. Sincerely, _j}t-,JJJ. f-i-,;,.,.,rp~ James P. Knight, Di rector Si ting, Licensing and Quality Assurance Division Office of Civilian Radioactive Waste Management

~GuLA roliv coMMt & SERVICE SECTION SECRETARY COMMISSION ent Statistic*

(j) Richard S. Mccutchen 2560 Maplewood Drive Columbus, Ohio 43229 August 11, 1986 "86 AUG 14 P2 :14 Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Services Branch Comments Conforming Amendments to 10 CFR 60 51 FR 22288-22301 (June, 1986) The proposed conforming amendments were compared with the published version of 10 CFR 60 "revised as of January 1985". The notice of this proposed rule should have included language to the effect that these are limited conforming amendments. A great deal of 10 CFR 60 remains to be brought into conformance with the Nuclear Waste Policy Act of 1982, 10 CFR 960, and 10 CFR 51, and until the full range of correlating, integrating changes are made, 10 CFR 60 fails in its service to the public. Those who would review Department of Energy (DOE) activities leading to the issuance by the Nuclear Regulatory Commission (NRC) of a construction authorization for the first high level nuclear waste repository cannot know the full extent of NRC requirements the DOE is required to meet because the following sections of Part 60 are currently anomalous. So while these comments are not applicable to the instant proposed rule, they are not irrelevant to the issue of "conforming amendments". A. 10 CFR 60.2 Definitions: "HLW facility", the citation of authorities fails to include Section (2)(b) PL97-425 (96 Stat. 2228) B. 10 CFR 60.10 Site Characterization In light of Sections 112(b)(l)(E), 112(b)(3), 112(c) and 112(f) PL97-425 (96 Stat. 2209,2210,2211) and Section 113 PL97-425 (96 Stat. 2211, 2212) the entire section seems to be without authority. C. 10 CFR 60.11 Site Characterization Report In light of Section 113(b)(l) PL97-425 (96 Stat. 2211) the entire section seems to be without authority. [See also Mission Plan (June, 1985) per Section 301(a) PL97-425 ( 96 Stat. 2255)]

r " &LS., NUCLEAR REGUtAm Y C MMISSIOB DocKETING & F "~CT ION OfFICE CF T , Y OF THE C Oocum t Post111 rk Date tf"/tt-//b C..,i R - i d / A 'I C * ..,r ' 1,I

• , *at* Oistr* uti n /f1J-5t ~ -

1 /kJfdA.'1 tJhL~tt,

Secretary U. S. Nuclear Waste Regulatory Commission Washington, D. C. 2 August 11, 1986 D. 10 CFR 60.21 Content of Application Subsection (a) requires that "[an] environmental report... prepared in accordance with Part 51 of this chapter... shall accompany the [license] application". No section of Part 51 currently refers to any action under Part

60.

Section 51.10 Purpose and Scope... has no reference to Section 114(f) PL97-425 (96 Stat. 2216). Section 51.22(c) lists Part 60 actions as "categorial exclusions" with respect to environmental assessments. The requirements listed under Section 51.45 Environmental Report are not applicable to licensing actions under Part 60. E. 10 CFR 60.22(a), 60.23, 60.24(a) and (c), 60.51(a) and (b) all either directly or implicitly mandate particular actions with respect to an "environmental report". It seems obvious from the analyses of the 10 CFR Parts 51 and 60 citations in D and E above that there is an unreconciled conflict in the kind of an environmental analytical document NRC will require the DOE to submit as part of its application for a construction authorization. I hope that NRC will within a reasonable time issue a proposed rulemaking of completely conforming amendments to 10 CFR Part 60. Sincerely, ~SIi/~~ Richard S. Mccutchen

Disposal Safety Incorporated Secretary of the Commission Attn.: Docketing and Services Branch U.S. Nuclear Regulatory Commission Washington, DC 20555 .B6 ~µG -a All :j 1 ODfFICE: OF S£CRE AR. DCl!q/NG

• S August 5, T9HCJ BRANCH£ Vtr.r:

Subject:

Comment on proposed amendment to to CFR 60

Dear Sir:

I wish to submit the enclosed comment on the proposed rule entitled "Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments," published in the Federal Register of June 19, 1986. enclosure 1211 Connecticut Avenue, N.W., Suite 610 Washington, D.C. 20036 /202) 293-3993 Sincerely, Benjamin Ross President

U.I. HUClW UlATotY COMMISSIOR DOCKETING & SERVICE SECTtON OFFICE OF THE "E,..RETARY OF THE COMMISSION Pothm o,,~'"moot ;;;#' CopiN Rec I vo'1 1 I Add' I Copi s Ro roducf/1-,*- :3---- lpeci,I Diatributien f'/.){ (e/JritJ!/YI

COMMENTS OF DR. BENJAMIN ROSS ON PROPOSED CONFORM I NG AMENDMENTS TO 10 CFR 60 I strongly endorse the overall approach proposed by the NRC to incorporate the EPA performance standard for high-level waste repositories into its own regulations. In particular, it is wise to restate the EPA criteria in the language already used in the NRC regulations. This has two advantages. First, the confusion of having to deal with similar terms that might or might not mean quite the same thing -- such as "anticipated events and processes" and "undisturbed performance" -- is avoided. Second, the NRC terminology is more precisely defined than EPA's, making it easier to focus on technical issues rather than definitions when preparing, reviewing, and deciding on the merits of a license application

• I will comment in detail on two aspects of the proposed rule that require more attention from the Commission: the apparent requirement in §60. 21 that a an evaluation be presented of the rate and quantities of radioactivity that are actually expected, with different degrees of probability, to be released to the accessible environment and, second, the Commission's view of the kinds of uncertainties that should be expressed as numerical probabilities as expressed in §60.101.

My comments are based in part on experience in trying to apply the EPA standards as a subcontractor to the DOE civilian high-level waste management program. However, the views expressed here are my own alone. Required Forecast of Releases The proposed regulation [§60.21(c)(l)(ii)(C)] requires that a license application include An evaluation of the performance of the proposed geologic repository for the period after permanent closure, assuming anticipated processes and events, giving the rates and quantities of releases of radionuclides to the accessible environment as a function of time; and a similar evaluation which assumes the occurrence of unanticipated processes and events. In making such evaluations, estimated values shall be incorporated into an overall probability distribution of cumulative release to the extent possible. This requirement is in addition to the requirement in §60.112(a) that the site be selected and the system be designed so that a complementary cumulative distribution function (ccdf) of predicted cumulative releases fall below the 1 -

specified limits. The analysis seemingly required by §60. 21 goes beyond what is needed to show compliance with §60.112(a), because §60.112(a) requires only that the ccdf be bounded, while §60. 21 seems to require that it be calculated. This makes an enormous difference to the process of screening scenarios. A simple hypothetical example will illustrate the issue. A scenario whose consequences are known to have an EPA ratio of no more than 3 can be eliminated from consideration with respect to §60.112(a) by showing that its probability is much less than O. 1. To eliminate the same scenario from consideration with respect to §60. 21 seems to require that its probability be shown to be less than the probability of another scenario with the same or greater consequences. This interpretation is supported by the Statement of Considerations [ p. 22292]: The Commission will require an extensive and thorough identification of relevant processes and events, but will require analyses of the probability and/or consequence of each only to the extent necessary to determinee its contribution to the overall probability distribution. If it can be shown, for example, that a particular event is so unlikely to occur that its effects on the probability distribution would not be meaningful, further analysis of the consequences of that event would not be required. This is not at all an academic point, because screening of scenarios at an early stage of the performance assessment process is universally agreed to be necessary, and because it will be very much harder to screen by comparison with other scenarios than to screen by comparison with regulatory standards. Screening of scenarios is necessary because of the large number of scenarios that can be suggested. Because the repository's safety features are both redundant and inherently passive, failure of a single barrier to release of radioactivity will not lead to system failure, but will not be corrected. The scenarios of concern (other than extreme events such as volcanic eruption) involve combinations of more than one barrier failure. In my study of the Yucca Mountain repository site [Ross, 1986a], for example, more than 80 sequences of events possibly leading to failure of one or more barriers were identified. These could be combined into many hundreds or thousands of scenarios. Some means of selecting a smaller number of scenarios for detailed analysis is needed to make the problem tractable. This is universally recognized in the literature on repository scenario analysis; a central concern in the major reports on this subject by Cranwell et al. [ 1982], 0 NWI [ 1984], and Roberds et al. [ 1984] is to develop means of screening scenarios. I have discussed this at greater length in a recent paper [Ross, 1986b]. Screening by comparison among scenarios is difficult precisely because of the expected good performance of proposed repository sites. This screening technique requires that appreciable probability and consequences be calculated for some scenario, so that other scenarios with smaller values be

eliminated. That is, in order to eliminate a scenario, one has to show affirmatively that there is another worse scenario. At Yucca Mountain and Deaf Smith County, in particular, it will be hard to define the 11 worse 11 scenario because the anticipated release over 1 O,000 years is zero. The scenarios to be studied in the performance assessments at these sites will, very likely, require consideration more because their probabilities and consequences are hard to assess than because they are known to be sizable. The net effect of §60.21 might be to make some sites hard to license because they are too good -- in order to get a license, DOE would need to choose a site where some release of radioactivity is expected, because only then could the unanalyzable scenarios be eliminated from the performance assessment. I see no reason that NRC should require DOE to evaluate the probabilities and consequences of potential releases from a repository, as long as it can demonstrate that those probabilities and consequences fall below the levels specified by EPA. The EPA regulation [§191.13(a)] requires that the methods of performance assessment be used to demonstrate that predicted releases fall below the specified levels, but it does not rule out bounding arguments as a tool to be used in making that demonstration. The apparent additional requirement of an evaluation of the actual probabilities and consequences of possible future releases would be a new feature of the proposed regulation. Such a requirement would contribute nothing to public safety, present or future, and should be removed by eliminating the proposed §60.21 (c)(l )(ii)(C) or adding the following wording to it: In these evaluations, particular processes, events, or scenarios need be considered only to the extent necessary to reach conclusions regarding compliance with the performance objectives of §60. 112

• Treatment of Uncertainty The roles to be played by quantitative probabilities and qualitative evaluations in dealing with uncertainty were a major subject of contention in the development of the EPA regulation.

I and other commenters, as well as the EPA 's Science Advisory Board, pointed out that many of the uncertainties about repository performance are not amenable to quantification. This concern was accomodated in the final rule through the definition of performance assessments [ §191. 02 ( q)], in which estimates of cumulative releases are to be incorporated into an overall quantitative probability distribution only "to the extent practicable." As comments submitted to the EPA rulemaking showed, this is a very small extent. NRC has wisely recognized this situation in the Statement of Considerations to the proposed rule [ p. 22291]. It comments that: The second element of a finding relates to the confidence e that is needed by the factfinder in order to be able to conclude that the standard of performance has been met. The Commission has insisted, and the EPA has agreed, that this level of confidence must be expressed qualitatively. The licensing decisions that must be made in connection with a repository involve substantial uncertainties, many of which are not quantifiable (e.g., those pertaining to the correctness of the models used to describe physical systems). Such uncertainties can be accomodated within the licensing process only if a qualitative test is applied for the level of confidence that the numerical performance objective will be achieved. Unfortunately, the language of the proposed regulation itself does not achieve the same unambiguous clarity of exposition. In §60.101(a)(2), it states Demonstration of compliance with [long-term] objectives and criteria will involve the use of data from accelerated tests and predictive models that are supported by such measures as field and laboratory tests, monitoring data and natural analog studies. Demonstration of compliance with the performance objectives of §60.112 will also involve predicting the likelihood and consequences of events and processes that may disturb the repository. Such predictions may involve complex computational models, analytical theories and prevalent expert judgment. Substantial uncertainties are likely to be encountered and sole reliance on numerical predictions to determine compliance may not be appropriate. In reaching a determination of reasonable assurance, the Commission may supplement numerical analyses with qualitative judgments including, for example, consideration of the degree of diversity or redundancy among the multiple barriers of a specific repository. It is clear from this that NRC wants, to the extent practicable, quantitative estimates of the probabilities of various "events and processes that may disturb the repository." These are clearly to be among the anticipated and unanticipated events and processes defined in the existing §60.2. According to the Statement of Considerations, uncertainties in conceptual models {and, presumably, extrapolation of accelerated tests -- it would be better if this were made explicit) are definitely not to be quantified. However, the proposed regulation says merely that "sole reliance on numerical predictions to determine compliance may not be appropriate *** the Commission may supplement numerical analyses with qualitative judgments *** " [ emphasis added]. Thus the proposed regulation seems to suggest that quantitative estimates of uncertainties in conceptual models and extrapolations would be acceptable, and that even when qualitative evidence is used, numerical analyses are the central (as opposed to supplementary) basis for decision. This contradicts the explicit language of the Statement of Considerations, which coincides with the Commission's considered judgment as expressed in its comments during the EPA rulemaking. 4 -

A possible argument in favor of the language in the proposed rule is that there is nothing wrong with being permissive, that if convincing quantitative arguments are not possible they will not be submitted. But such an approach to rulemaking would be misleading and mischievous, quite possibly leading to a less safe repository. If the regulation states that quantitative probabilities of conceptual uncertainties may be acceptable as a basis for licensing, it implies that NRC thinks that it is possible to estimate these probabilities with an acceptable degree of confidence. License applicants will then have reason to think that they can make the best possible estimates and rely on them to obtain a license. If (as NRC believes) even the best possible quantitative estimates of these probabilities have less value than a well-reasoned qualitative description of the existing level of confidence, licensing decisions will either be delayed endlessly by unresolvable hair-splitting or be made on the basis of inferior evidence. For these reasons, the approach taken in the Statement of Considerations is much to be preferred. The two final sentences of the proposed §60. 101 (a) (2) should be revised by changing "may not be appropriate" to "will not be appropriate" and "may supplement numerical analyses with" to "may use numerical analyses to supplement." References Cranwell, R.M., R.V. Guzowski, J.E. Campbell, and N.R. Ortiz, Risk methodology for geologic disposal of radioactive waste: Scenario selection procedure, U.S. Nuclear Regulatory Commission Report NUREG/CR-1667, December 1982

• ONWI, Performance assessment plans and methods for the Salt Repository Project, Office of Nuclear Waste Isolation Report BMI/ONWl-545, August 1984.

Roberds, W.J., R.J. Plum, and P.J. Visca, Proposed methodology for completion of scenario analysis for the Basalt Waste Isolation Project, Rockwell Hanford Operations Report RHO-BW-CR-147P, November 1984. Ross, B., Disruption scenarios for a high-level waste repository at Yucca Mountain, Nevada, in R.G. Post, ed., Waste Management '86, University of Arizona, Tucson, 1986a, vol. 2, pp. 403-409. Ross, B., Scenarios in performance assessment of high-level waste repositories, Radioactive Waste Management and the Nuclear Fuel Cycle, vol. 7, pp. 47-61, 1986b. 5 -

E Nemethy, Sec *y Sec 'Y - l\JRC Wash, DC 20555 OOCKt *. USN. ; ~ ~ Jl 25 P2 :52 ATT : DOCKETING & SERvtiW~w~ t.1RMIC 1 Gentlemen = July 23 - 86 ~ () l l i Proposed Rule Fed Register June 19-86, p 22288 Disposal of HLW (For info, enclosed are some news items from our clip files from 1979, 80, 83 re : experimental programs fo r containing and treatin~ atomic wastes, and for removing plutonium from living tissues) This proposed rule shei s new light on the atomic industry's long-time claim : " aste disposal? No problem! The technology exists - it ' s just a matter of putting it to use *** " This one is so lihaded with qualifiers it makes all those "reasonable assur ances" look about as substantial as soap bubbles. (And it ' s written in the usual unspeakably murky prose) 1 - For example: P 22289, col 3 : "The enginee r ed barriers of a repository will, in many cases, be instrumental in achiev-ing compliance *** " Fine - now what about all the other cases? 2 - P 22299, Sec 60. 112(a) speaks of system performance for 10, 000 years after permanent closur e. At Sec 60. 112(b), you ' ve lowered the ante to 1000 years. Finally, Sec 60. 114 (if we interpret this triple-talk correctly) says you won ' t require active or passive inst itutional controls after 100 years. Which apparently means there will be no access control, maintenance, remedial actions, controlling or cleaning up releases, or monitoring after 100 years(?) The second sentence of 60. 114 beginning with "However *** " is a minor classic of contrived confusion, with the true intent effectively camouflaged. HOW ON EARTH DO YOU EXPECT TO GET RATIONAL COMhLENTS ON YOUR PROPOSALS WHEN YOU PROSTITUTE THE LANGUAGE IN ThIS WAY? 3 - P 22299, Sec 60.112(c): Here, you discuss permissible radio-nuclide levels in drinking water averqged over any year. This has a strong resemblance to the "Man-Rem " ploy, where the lethal dose absorbed by some poor devil is neatly averaged-out by sr meone who ' s rec ' d little or none. And why do you intend to exclude radon from the radionuclide s in drinking water? And if the annual radionuclide concentrations in a "special source" of drinking water (which may be supplying "thousands of persons" ) already exceed the l imits of para (c) (1), why do you even consiaer building a repository there?

l U.S. NUCLW M(;Ul.ATORY co,MW~* DOCKETING & SERVICE SECTION OFFICE OF THE SE RETARY

• Of' HE Co,I*

ec *,d Aekil' I Copi s e.,rod ced S,.Cl.t Distributien

2-2-2 4 - P 22293, bottom of col 1: What, eyactly, is meant by this piece of high-flown nonsense: 11 *** application of the limited societal response canabili ty assumed by the rule *** 11 ? 5 - P 22290, near bottom of col 2: Anparently you're still con-sidering emplacement in saJ t deposits. Do you remember the repository at Lyons,Kansas? We believe around $100 millions were poured down the rathole there. The place was scrapped, after the discovery that nearby flushing operr1tions had riddled the strata with weak spots. And, somewhere around 1982-3, there was the lake in Louisiana(?) which suddenly vanished down into a salt dome, when some drill-ing operation had penetrated the dome. Summing up, we quote the tag-line of a song of the 60s:: "When will they ever learn? When will they ev-errr learn?"

PSU -nuke* was*te ~]i}()J~~~ fUDded..

I

-: UNI~RSITY PARK - Scientist$ Eoferpcise newspapers fcublished a t the Pennsylvania State University ** §eries of

• articles expormg new-nd Rockwell Corp. will combine...,AU1clear wa.ste storage technologies.

xpertise to begin making and. developed, in part, from research at esting an improved artificial Penn State. In the last of those ar-* aterial capable of. IJJlmobilizing

• iicles...:,Ray was guated as sayjng angeroµs nuclear wastes forever'.

tnuch further cesea rch on the matter , The university will be responsible wm be necessary.., or designing and evaluating

• dif-

$1.8 million a year erent waste forms, while the Pitt- ~ientists will develo~ a ceramic or' burgh-base~ firm will concentrate ~- betic mineral _aste farm, n dev.eloping a simple, safe, remote-created by P@RR State's ma~eJ:lels ontrol manufacturing process,. research laboratory, with a $1.8-ccording to _Dr Rushiin &oy, million-a-year grant from the U.S. irect Penn State's Materials DepartmentofEnergy. boratory. "We're going to examine improved Au ust. the Press-(ContinuedonPageTwo) -,-**.Nuke* W;1ste -~- /' (Continued from Page One) ..,.*-,.. :) . In the fQrm of large canister's, the waste packages would be buried 1,000 solid waste forms, in order to solidify to 2,000 feet underground, most likely liquid and semi-solid nuclear wastes in granite, basalt or shale, far from from reprocessed, spent nuclear* encroaching groundwater. fuel," Roy stated in a news release as Water gravest threat saying. Water is believed to pose the I Roy said the scientists, in a gravest threat, due to high tern-foolproof and simple process, will perature and pressure which would "immobilize nuclear wastes, turning exist. Two years ago, Penn State them into a form so inert that no scientists discovered that if nuclear thqu olcanoes and weathering e solid, groundwater coming into .Drug takes plutoniu~ *

• frolll tissue

~- . BERKELEY, Calif. - A new chemi-

• cat that can remove deadly plutoni*

um from living tissue is being con- \!iidered as a remedy to the problem of stockpiled nuclear reactor wastes, a scientist says.

• Kenneth Raymond, a University of*

California scientist who helped de-velop the chemical, sa_id t.he s~b-stance is the first advance in treating radiation contamination in 30 years. He added that it may hold the answer \)~ to. defusing the controversy sur- ,"'i> rounding plutonium wastes from ~ atomic power plants. ~ .. I think this new chemical, or something very close to it, will prove to be a significant part of the an-swer" for disposal of wastes from nuclear power plants and weapons, Raymond said last week. In recent tests, the substance, _cal.led..LlCAM-C remci,ied'70:percen'1 of.tlliLJ)h1to.nill.IDJnjected into labo-ratory mice. And repeated doses

• could probably remove more with little or no toxic side effect, research-ers said.

Plutonium is one of the deadliest substances known. It is a byproduct of and a fuel for nuclear power plants and weapons manufacturing. It is easily absorbed by the body and collects in the lungs, spleen, liver

• and bone marrow, where the radia-tion it emits can transform normal geo-o i I event. -

such as ear-wastes were convert a Jass-by d high temperature arid contact with the solids during the press can cause the material to firs~ 100 years of burial would break. decompose, releasing radioactivity." the wastes down jn a tewweeks tn a ( . cells into cancerous ones. LICAM-C has the ability to grab \ individual plutonium ions and en- : gulf them in chemical pinchers, i Raymond said. I "Final! we came u with a chc *_ I Radioactive atoms few months.. The synthetic ceramic material, Part of the research will be to with properties designed to mimic. develop precise tools to compare the those of nature's most geologically artificial mineral with the "glass" s table miner~ls, con_sists of form, Roy said, which some nuclear r a d i o a c t i v e a t o m *s

• O r nations have considered the most "r!_qio_~uclides," chemically Im-. viable solution, up to now.

IDObilizeo in the arhhc1al ceramic, Initially, he.said, the scientists will ccording to the news release..

• work with non-radioactive isotopes or For added safety, Roy said, those radioactive materials, to determine

minerals" would be encased in a which synthetic materials are best 'mineralogically impregnable suited to each type of *waste. The ortress," a series of metal and ar-wastes Vtlry considerably, Roy ad-* .ificial mineral barriers also ded, depending on such things as lesigned to withstand geological source <defense or commerc'ial>, age !Vents. _and chemical composition. ca that binds ti_ghtly with plutoni-'

• um is ntoxic and (has a) low enough molecular weight to pass through the kidneys so it can be excreted," he said.

Some experimental substance~ discovered earlier removed plutoni-um but also removed other impor-tant body substances such as iron, calcium and zinc. Raymond is seeking financing to d~vclop a si~ilar chemical_ to _re-. move plutontum from rad1oact1 v~ waste, in wbich the deadly plutoni-um remains active for thousands of years. He said he believes that a chemical similar to LICAM-C could be applied to plutonium and remove it in much the same manner as it was removed from living tissue in mice.

I I* ' STATE COLLEGE (AP) - Pennsylvania Slale Universily scientisls said Wednesday lhey have learned lo bolster the ability of cement to contain radioactive wastes. By* adding aluminum to tobermorite - a principal compoi:irid m dry cement - the researchers said they can give cement better absorption gualilies for nuclear

• .waste disposal.

,*."I!;s like filling the cement with sponges that will .* suck. op the h.azardous waste atoms," said Rust um ~RQY._ director of

• Penn State's Materials Research

"'I:aoora tor:y. Experts In radioactive wastes sai-e discovery could help keep low-level nucl~ar was

• heck. The problem remains finding locallons-t se of the discarded material, they said.
• "You.can contain. it and find suitable soil, but* the..

,.. / problem is people don't want you to dispose of it near them," said William Dornsife of the state Department of Environmental Resources. Dornsifc works in the department's Bureau of Radiation Prolection. Dornsife was a participant in a 20-month study on* nuclear waste disposal released by Penn State on Aug.

8. The study said that sources of low-level radioactive

. waste "are s.o far-reaching that no community can claim exclusion." Typically, cement is used to solidify low-lcvc) wnsle beTore it js buried in the ground. The waste may come from nuclear power pla-rom hospitals or from industries. According lo Hoy, clay n added lo lhe cement used in waste disposal " onge up lhe atoms and hold onto them."

[7590-01] NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 Disposal of High-Level Radioactive Wastes in Geologic Repositories; Conforming Amendments AGENCY: Nuclear Regulatory Commission. ACTION: Proposed tule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations for disposal cf high-level radioactive wastes in geologic repositories. The amendments are necessary to conform existing NRC regulations to the environmental standards for management and disposal of high-level radioactive wastes promulgated by the Environmental Protection Agency (EPA) on September 19, 1985. The proposed rule would incorporate all the substantive requirements of the environmental standards and make several changes in the wording used by EPA in order to maintain consistency with the current wording of the NRC regulations. DATE: Comment period expires Aug. 18, 19ij6 Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments receivea on or before this date. ADDRESSES: Written comments may be submitted to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Services Branch. Comments may also be delivered to Room 1121, 1717 H Street NW, Washington, DC, from 8:15 a.m. to 5:00 p.m. weekdays. Copies of the documents referred to in this notice and comments 1 (;\\\\o..\~~ QI))

[7590-01] received may b~ examined at the NRC Public Document Room, 1717 H Street, NW, Washington, DC. FOR FURTHER INFORMATION CONTACT: Daniel J. Fehringer, Division of Waste Management, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC, 20555, telephone (301) 427-4796. SUPPLEMENTARY INFORMATION:

Background

Section 121 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 USC 10141, directs the Environmental Protection Agency (EPA) to 11 promulgate generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories. 11 EPA published its final high-level radioactive waste (HLW) standards in the Federal Register on September 19, 1985 (50 FR 38066). Section 121 of the NWPA further specifies that the regulations of the NRC 11 shall not be inconsistent with any comparable standards promulgated by [EPAJ: 11 The Nuclear Regulatory Commission has previously published rules (10 CFR Part 60, 46 FR 13980, February 25, 1981, 48 FR 28204, June 21, 1983) which established procedures and technical criteria for disposal of HLW in a geologic repository by the U.S. Department of En~rgy (DOE). This notice describes the interpretations and analyses which the Commission considers to be appropriate for implementation of the EPA standards, and identifies modifications to the Commission's regulations which are considered appropriate to maintain consistency with the standards promulgated by EPA. It should be noted that "working draft 11 versions of the EPA standards were available to the Commission when Part 60 was being developed, and the Commission structured its regulations to be compatible with those draft standards. (See, for example, 48 FR 28195-28205, June 21, 1983, where the Commission discussed its final technical criteria, and NUREG-0804, the staff's analysis of public comments on the proposed technical criteria. NUREG-0804 is available in the NRC Public Document Room.) Since many of the general features 2

[7590-01] of the 11working drafts 11 remain present in the final standards, Part 60 is largely consistent ~ith those standards. EPA has, however, sometimes used different terminology to describe concepts already present in Part 60. To maintain the overall structure of Part 60, and to avoid introduction of duplicative terminology which could prove confusing in a licensing review, the Commission prefers to retain its own established terms. Most of the amendments to Part 60 proposed in this notice involve direct incorporation within Part 60 of the substantive requirements of the EPA standards, reworded as necessary to conform to the terminology of Part 60. (Additional proposed amendments derive from EPA 1 s 11 assurance requirements, 11 as,discussed in Section III of this notice. One further amendment, unrelated to the EPA standards, is proposed for clarification of existing wording in Part 60.) With the issuance of this rule, no substantive changes are intended in the requirements of the EPA standards or in the environmental protection they afford. The EPA standards specify certain limits on radiation exposures and releases of radioactive material during two principal stages: first, the period of management and storage operations at a repository and, second, the long-term period after waste disposal has been completed. These standards, and the proposed rules to implement them during operations and after closure, are discussed in Section I below, while Section II provides some further observations regarding the manner in which the Commission intends to apply the EPA standards in its licensing proceedings. Section III describes additional proposed rules related to certain 11 assurance requirements 11 which are present in EPA 1 s standards but which are not applicable to NRC-licensed facilities. In order to avoid potential jurisdictional problems which might arise if this section of the EPA standards were applied to NRC-licensed facilities, the NRC is proposing to add substantially equivalent provisions to its regulations. Finally, this notice presents a section-by-section analysis of the proposed rule (Section IV), followed by the specific text of the proposed amendments to Part 60. (The organization of Section IV follows that of Part 60 while the text of Section I is organized to present a section-by-section discussion of the EPA standards. Parts of Section IV are therefore repetitions of information presented in Section I.) 3

[7590-01] I. Limits on Exposures and Releases The limits established by EPA for the period of repository operations appear at 40 CFR 191.03. The limits applicable to the _period after disposal include 11 containm*ent requirements" (limits on cumulative releases of radionuclides to the environment for 10,000 years) in §191.13, "individual protect ion requirements II in §191. 15, and II ground water protect ion requirements 11 in §191.16. Implementation of each of these sections is discussed in the following paragraphs. Standards for repository operations (§191.03). The standards for repository operations are virtually identical to the standards previously promulgated by EPA for the uranium fuel cycle (42 FR 2860, January 13, 1977), and will be implemented in the same manner. 1 DOE will be expected to demonstrate, through analyses of anticipated facility performance, that the dose limits of these standards, as well as the standards for protection against radiation set out in 10 CFR Part 20, will not be exceeded. Releases of radionuclides and resulting doses during operations are amenable to monitoring, and DOE will be required to conduct a monitoring program to confirm that the limits are complied with. Section 60.lll(a) would be amended to include the EPA dose limits. Section 60.10l(a)(2) already includes a provision requiring "reasonable assurance" that the release limits be achieved, and it is not necessary to repeat this language in the rel ease limits of §60.111. It is also not necessary to employ the terms 11management 11 and 11storage, 11 as EPA has done, since all preclosure repository operations are already subject to the provisions of §60.111. 1It should be noted that a potential ambiguity exists in this section of EPA 1s HLW standards and in EPA 1s uranium fuel cycle standards. Both standards limit the annual dose equivalent to any member of the public to 11 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other critical organ" (emphasis added). The Commission has always interpreted these limits as if the word 11and 11 were replaced by 11or. 11 Thus, the Commission would not consider it acceptable to allow an annual dose equivalent of 25 millirems to the whole body and an additional 25 millirems to any other organ. The Commission will continue to implement these limits as it has in the past, but will encourage EPA to clarify the wording quoted above. 4

[7590-01] Postclosure standards. The EPA postclosure standards are all expressed in terms of a 11 reas~nable expectation 11 of meeting specified levels of performance. EPA explained that it selected this term because 11 'reasonable assurance' has come to be associated with a level of confidence that may not be appropriate for the very long-term analytical projections that are called for by 191.13. 11 The Commission is sensitive to the need to account for the uncertainties involved in predicting performance over 10,000 years, and the difficulties as well as the importance of doing so. The Commission has attempted to address this concern in the existing language of §60.10l(a)(2). That section requires a finding of reasonable assurance, 11making allowance for the time period, hazards, and uncertainties involved, that the outcome will be in conformance 11 with the relevant criteria. Rather than adopt an additional concept such as 11 reasonable expectat.ion, 11 the Commission proposes to add additional explanatory text, derived from EPA's wording, to its existing discussion of reasonable assurance. This text will make clear the Commission's belief that its concept of reasonable assurance, although somewhat different from previous usage in reactor licensing, is appropriate for evaluations of repository performance where long-term issues and substantial uncertainties are inherent in projections of repository performance. The Commission considers that the level of confidence associated with its concept of reasonable assurance is the same as that sought by EPA in the use of the term 11 reasonable expectation." In the case of the individual protection requirements (40 CFR 191.15), the standards limit the annual dose equivalent to any member of the public in the accessible environment. A new provision in section 60.112(b) is proposed that would include the dose limits established by EPA as well as the additional specifications, which the Commission finds to be reasonable, with regard to consideration of all pathways including consumption of drinking water from a 11 significant source of ground water, 11 as defined by EPA. The EPA standards require that the individual protection requirements be achieved only for 11 undisturbed performance 11 of a geologic repository ( 11disposal system 11 in EPA's terminology). The proposed ame_ndment to Part 60 makes no 5

[7590-01] reference to "undisturbed performance. 11 Instead, it provides that the standard is to be met "in the absence of unanticipated processes and events. 11 The Commission considers the concepts of undisturbed performance and the absence of unanticipated processes and events to be identical. As used by EPA (40 CFR 191.12(p)), "undisturbed performance" refers to the predicted behavior of a disposal system if it is "not disrupted by human intrusion or the occurrence of unlikely natural events. 11 Since human intrusion and unlikely natural processes and events are precisely the types of "unanticipated processes and events" defined in §60.2, the two concepts are the same. Thus, the Commission considers that the phrase 11 in the absence of unanticipated processes and events" has the same meaning as "undisturbed performance" in the EPA standards. To maintain the overall structure of Part 60, and to avoid introduction of duplicative 1anguage, the Commission prefers to retain its own established terms. The engineered barriers of a repository will, in many cases, be instrumental in achieving compliance with both the individual protection requirements and the groundwater protection requirements discussed below. The Commission notes that the existing provisions of Part 60 require the engineered barriers of a repository to achieve their containment and release rate performance objectives "assuming anticipated processes and events. 11 Thus, equating "undisturbed performance" with "anticipated processes and events" causes no change in the types of conditions for which the engineered barriers must be designed. The ground water protection requirements (40 CFR 191.16) focus on the quality of any "special source of ground water, 11 which is defined, generally, as a source of drinking water in an area that includes and surrounds the geologic repository. This area extends for five kilometers beyond the controlled area. The standard applies to water 11withdrawn 11 from such a special source. The Commission is proposing to include the EPA standard as a new performance objective (§60.112(c)). Once again the rule applies in the absence of unanticipated processes and events instead of "undisturbed performance. 11 The containment requirements (40 CFR 191.13) restrict the total amount of radioactive material released to the environment for 10,000 years following permanent closure of a repository. EPA provides a table listing release limits for the significant radionuclides present in HLW or spent fuel. The 6

[7590-01] values in this tabl~ were derived, based on environmental transport and dosimetry consider~tions, so that the amount of each radionuclide listed in the table will, if released to the environment, produce approximately the same number of populat1on health effects. The standard further specifies different release limits for releases with differing likelihoods of occurrence. The Commission is proposing to incorporate these requirements as a new performance objective (§60.112(a)), along with a new §60.115 containing EPA's table of release limits. The regulation goes on to state that the disposal systems shall be designed to provide a reasonable expectation - "based on performance assessments" - that the release limits are satisfied. While the proposed amendments incorporate most of the EPA standard in its precise terms, they omit the reference to performance assessments. Part 60 already requires analyses virtually identical to those contemplated by EPA, but the Commission proposes to add additional wording to §60.2l(c)(l)(ii)(C) to emphasize consistency with the EPA standards. The Commission notes, in this connection, that EPA's reference to estimating the cumulative releases caused py all significant processes and events, to be incorporated in an overall probability distribution of cumulative release to the extent practicable, does not modify the principles underlying Part 60. As was observed when NRC 1s firral technical criteria were published in 1983 (48 FR 28204), the Commission expects that the information considered in a licensing proceeding will include probability distribution functions for the consequences from anticipated and unanticipated processes and events. Further information concerning the Commission's plans for assessing repository performance is contained in Section II of this notice. II. Additional Comments on Implementation of the EPA Standards Four sections of the EPA standards contain numerical requirements for which compliance must be demonstrated -- standards for repository operations, post-closure individual and groundwater protection requirements and containment requirements restricting the total amount of radionuclides projected to be released to the environment after repository closure. The discussion of 7

[7590-01] Section I of this ndtice articulates the Commission 1 s interpretation of the standards that have-been issued by EPA. Additional comments related to implementation of each of these sections are presented in the following paragraphs. Standards for repository operations. As discussed previously, the standards for repository operations are virtually identical to the standards previously promulgated by EPA for the uranium fuel cycle, and will be implemented in the same manner. A license applicant will be expected to demonstrate, through analyses of anticipated facility performance, that the dose limits of these standards will not be exceeded. Doses during operations are amenable to monitoring, and the applicant will be required to conduct a monitoring program to confirm that the dose limits are complied with. Individual and groundwater protection requirements. The individual and groundwater protection requirements are applicable for the first 1,000 years after permanent closure of a repository. Monitoring is not practical for this period of time and the applicant will therefore be required to demonstrate compliance with these requirements through analyses of projected repository performance. Two general approaches might be pursued by DOE. First, DOE might choose to calculate the expected concentrations of radio~uclides in certain groundwaters potentially useable by humans in the future. Such calculations would include projections of waste package and engineered barrier performance (to provide a source term) as well as evaluations of the direction, velocity and volumetric flow rates of groundwaters near the repository. The EPA standards specify the types of groundwaters to be considered in such analyses (through the definitions of the terms 11 significant 11 and 11 specia1 11 sources of groundwater), and these concepts will be incorporated directly into Part 60. 8

[7590-01] Alternatively, DOE might choose to show compliance with these requirements by demonstrating th~t other barriers, such as the waste packages or the emplacement medium (e.g., salt), will pr_ovide substantially complete containment for the first 1,000 years after permanent closure thereby preventing contamination of the groundwaters of concern. If DOE chooses to calc~late the expected concentrations of radionuclides in groundwaters, rather than to rely on containment by engineered barriers, it will also be necessary to calculate potential doses to individuals in the future. The individual protection requirements limit the annual dose equivalent to any member of the public in the accessible environment. If a 11 significant source of groundwater 11 (as defined) is present, the Commission will assume that a hypothetical individual resides at the boundary of the controlled area and obtains his domestic water supply from a well at that location. If no such source of groundwater is present, the location of the maximally exposed individual and the pathways by which he might be exposed to radionuclides released from a repository must be examined on a site-specific basis. The individual protection requirements also necessitate assumptions about I the dietary patterns and other potential modes of ingestion of radionuclides during the next 1,000 years. The Commission will assume that current patterns remain unchanged, unless it c~n be conviricingly demonstrated that a change is likely to occur (e.g., reduced groundwater consumption due to depletion of an aquifer). Both the individual and groundwater protection requirements are applicable only for 11 undisturbed performance 11 of a repository system. As discussed in Section I, this term is considered to be equivalent to 11 anticipated processes and events, 11 as currently defined in Part 60. The Commission will therefore require a demonstration of compliance with these requirements assuming the occurrence of anticipated processes and events, but will not require a demonstration of compliance in the event of unanticipated processes and events. Containment requirements. The containment requirements are applicable for 10,000 years after repository closure. Therefore, compliance with these 9

[7590-01] requirements must also be evaluated by analyses cif projected repository performance rather than by monitoring. The containment requirements call for significantly different analyses than those discussed abuve. This section of the EPA standards restricts the total amount of radioactive material released to the environment for 10,000 years following permanent closure of a repository. This section further speci0es different release limits for releases with differing likelihoods of occurrence. Notwithstanding the quantitative probabilistic form of the EPA containment requirements (40 CFR 191.13), the Commission finds that there is adequate flexibility therein to allow them to be implemented using the licensing procedures of 10 CFR Parts 2 and 60. A further discussion of these matters is appropriate in order to avoid ambiguity in the application of the probabilistic conditions. As the Commission emphasized when the technical criteria for geologic repositories were promulgated in final form (48 FR 28204), there are two distinct elements underlying a finding that a proposed facility satisfies the desired performance objective for long-term isolation of radioactive waste. There is, first, a standard of performance - some statement regarding the quantity of radioactive material that may be released to the accessible environment. This standard can be expressed in quantitative terms, and may include numerical requirements for the probabilities of exceeding certain levels of release. The second element of a finding relates to the confidence that is needed by the factfinder in order to be able to conclude that the standard of performance has been met. The Commission has insisted, and the EPA has agreed, that this level of confidence must be expressed qualitatively. The licensing decisions that must be made in connection with a repository involve substantial uncertainties, many of which are not quantifiable (e.g., those pertaining to the correctness of the models used to describe physical systems). Such uncertainties can be accommodated within the licensing process only if a qualitative test is applied for the level of confidence that the numerical performance objective will be achieved. 10

[7590-01] The essential ~oint to be kept in mind is that findings regarding long-term repository performance must be made with "reasonable assurance. 11 The Commission at~empted to e~plain this concept in the existing wording of §60.l0l(a) where it noted that allowance must be made for the time period, hazards, and uncertainties involved. Additional language is being proposed at this time, in the same sec\ion of Part 60, to further emphasize that qualitative judgments will need to be made including, for example, consideration of the degree of diversity or redundancy among the multiple barriers of a specific repository. Application of a qualitative test in no way diminishes the level of safety required by a numerical standard. The applicant will be required to submit a systematic and thorough analysis of potential releases and the Commission will issue a license only if it finds a substantial, though unquantified, level of confidence that compliance with the release limits will be achieved. As we have stated previously (48 FR 28201), in order to make a finding with "reasonable assurance," the performance assessment which has been performed in the course of the licensing review must indicate that the likelihood of exceeding the EPA standard is low and, further, the Commission must be satisfied that the ~erforrnance assessment is sufficiently conservative, and its limitations are sufficiently wel.1 understood, that the actual performance-of the geologic repository will be within predicted limits. The Commission will evaluate compliance with the containment requirements based on a performance assessment. Such an assessment will: (1) identify all significant processes and events which could affect the repository, (2) evaluate the likelihood of each process or event and the effect of each on release of radionuclides to the environment, and (3) to the extent practicable, combine these estimates into an overall probability distribution displaying the likelihood that the amount of radioactive material released to the environment will exceed specified values. The Commission anticipates that the overall probability distribution will be displayed in the format shown below. 11

Likelihood 1.0 of Exceeding Values on the Horizontal Axis 0 Amount of Radioactive

• Material Released

[ 7590-0 I] Figure 1. Illustrative "Complementary Cumulative Distribution Function. 11 When the results of analyses are displayed in this format, the limits of EPA's containment requirements take the form of "step functions." as shown in Figure 2. Likelihood of Exceeding Values on the Horizontal Axis 1.0 1-------------1 EPA Bound -11 I + 10 I ~-----------, I I I I EPA Bound _31 I - + 10 I 1--------- I _____ --,,-~---=---............,.----

1. 0 10 Multiples of EPA Release Limits Figure 2.

Graphic Representation of EPA Containment Requirements. In Figure 2~ releases which exceed the value specified in the EPA containment requirements (Table 1) must have a likelihood less than one chance in ten (over 10.000 years). and releases which exceed ten times that value must have a likelihood less than one chance in one thousand (over 10,000 years). Thus, in order to demonstrate compliance with EPA's coritainment requirements, the entire probability distribution must lie below the "stair-step" constraints illustrated in Figure 2. 12

[7590-01] In constru~ting. a probability distribution of the type illustrated above, it is necessary to ~onsider, in EPA 1 s terms, all 11 significant processes and events that may affect the disposal system. 11 This is equivalent, as we interpret the EPA standard, to all 11 anticipated 11 and 11 unanticipated 11 processes and events in the terminology of Part 60. (By the definition of 11 unanticipated processes and events 11 in Part 60, processes and events less likely than 11 unanticipated 11 are not sufficiently credible to warrant consideration.) For purposes of the proposed §60.112(a) only, which incorporates EPA 1 s containment requirements, no distinction is to be made between 11 anticipated 11 and 11 unanticipated 11 processes and events; all such processes and events must be factored into the evaluation, including determination of such probabilities of occurrence as may be found to be appropriate. (For purposes of the proposed §60.112(b) and (c), which incorporate EPA 1s individual and groundwater protection requirements, only 11anticipated 11 processes and events need be considered as discussed previously.) The Commission will require an extensive and thorough identification of relevant processes and events, but will require analysis of the probability and/or consequence of each only to the extent necessary to determine its contribution to the overall probability distribution. If it can be shown, for example, that a parttcular event is so unlikely to occur that its e{fects on the probability distribution ~ould not be meaningful, further analyses of the consequences of that event would not be required. Generally, categories of processes and events which can be shown to have a likelihood less than one chance in 10,000 over 10,000 years, along with categories of processes and events which otherwise can be shown not to change the remaining probability distribution of cumulative release significantly, need not receive further analysis. (The term 11 categories 11 is used to refer to general classes of processes and events, such as faulting, volcanism, or drilling. Subsets of these general categories, such as drilling which intersects a canister or fault displacement of a specific magnitude, may need to be retained in an analysis if the general category has been finely divided into a large number of specific process or event descriptions, each with reduced probabilities of occurrence.) 13

[7590-01] Treatment of uncertainties. As discussed previously, substantial uncertainties will be involved in analyses of long-term repository performance. These uncertainties may include (1) identification of basic phenomena and their potential effects*on repository performance, (2) development and validation of models to describe these phenomena, (3) accuracy of available data, and (4) calculational uncertainties. Various methods may be used to accommodate such uncertainties including, for example, numerical estimates of uncertainties (expressed as probability distributions) or conservative, 11 bounding 11 models or data. Treatment of uncertainties will rely heavily on expert judgment, both for selection of an appropriate method and for application of that technique. EPA recognized the importance of uncertainties when its standards were promul-gated. In Appendix B of 40 CFR Part 191 (50 FR 38088, September 19, 1985), EPA stated "substantial uncertainties are likely to be encountered in making (numerical) predictions (of repository performance). In fact, sole reliance on these numerical predictions to determine compliance may not be appropriate; the implementing agencies may choose to supplement such predictions with qualitative judgments as well. 11 It is possible - in fact likely - that the various parties to a licensing proceeding will have significantly different views, all with technical merit, regarding the best methods to use, and these differing views may result in presentation of widely different estimates of repository performance. Any such differences could be resolved in a number of ways. One permissible method for dealing with the uncertainties reflected in the record of the proceeding would be to rely heavily upon conservative, 11bounding 11 analyses. Perhaps it could be shown that even if this approach were employed, the predicted performanc~ would still satisfy the containment requirements established by EPA. On the other hand, an apparent violation of the standard (based on conservative analyses) would not necessarily preclude the Commission from finding, with reasonable assurance, that repository performance would conform to the EPA standard. After carefully evaluating the relevant uncertainties, DOE could present the same data in the form of a cumulative probability distribution that was less conservative - for example, one that 14

[7590-01] more accurately represents the best current technical understanding.

Thus, alternative methods are available to DOE for treatment of uncertainties when making its demonstration of reasonable assurance of compliance with the provisions of Part* 60.

It should be noted, however, that analyses based on "best estimates" of repository performance might be found to be inadequate if substantial uncertainties are present. In that case, notwithstanding the apparent conformity with the EPA standard, the Commission might ultimately conclude that it lacked the necessary reasonable assurance, considering the uncertainties involved, that the performance would meet the containment requirements. Because uncertainties are so important in analyses of repository performance and will play such a major role in a licensing proceeding, the Commission emphasizes the importance of efforts being undertaken to foster a common technical understanding and to resolve issues, where it is practicable to do so, prior to receipt of a license application. Many of the provisions of the Nuclear Waste Policy Act are directed toward this goal. One especially important opportunity, in this regard, is DOE's preparation of site characterization plans and the review and comment process to be carried out by the Commission and other interested parties. Additionally, NRC and DOE are engaged, under an interagency procedural agreement, in ongoing technical discussions on matters that pertain to 1;-censing requirements; these discussions are in the form of open meetings, affording other persons an opportunity to identify pertinent considerations that might also need to be addressed. The staff is also issuing staff technical positions on specific methods of analysis that would be acceptable for evaluating compliance with Part 60 technical criteria and performance objectives. As issues mature, the Commission will, where appropriate, use the rulemaking process to seek resolution of issues where a licensing proceeding might otherwise encounter difficulties due to ambiguity regarding acceptable assessment methods. Nevertheless, the data available at the time of licensing will inevitably be imperfect. It is therefore essential that every effort be made by DOE - and by any other party that develops data which it m_ay propound at a hearing - to use careful methods to enhance, and document, the trustworthiness of the evidence which it may submit. 15

[7590-01] III. EPA Assurance Requirements EPA 1 s regulati_s,ns (40 CFR 191.14) include certain 11 assurance requirements 11 designed, according to the rule, to provide the confidence needed for long-term compliance with t~e containment requirements. As noted by EPA in its preamble, the Commission took exception to the inclusion of these provisions in the regulations. The Commission viewed the assurance requirements as matters of implementation that were not properly part of the EPA 1 s authorities assigned by Reorganization Plan No. 3 of 1970. In response to this concern, the two agencies have agreed to resolve this issue by NRC's making appropriate modifications to Part 60, reflecting the matters addressed by the assurance requirements, and by EPA's declaration that those requirements would not apply to facilities regulated by the Commission. The following discussion sets forth the Commission 1 s views with respect to each of the EPA assurance requirements and identifies the proposed rule changes that are deemed to be appropriate under the circumstances. EPA Assurance Requirement 40 CFR 191.14(a). Active institutional controls over disposal sites should be maintained for as long a period of time as is practicable after disposal; however, performance assessments that assess isolation of the wastes from the accessible environment shall not consider any contributions from active institutional controls for more than 100 years after disposal. Analysis and Proposed Changes. The Commission's existing prov1s1ons (§60.52) related to license termination will determine the length of time for which institutional controls should be maintained, and there is therefore no need to alter Part 60 to reflect this part of the assurance requirem~nt. The second part of this assurance requirement would require that 11 active 11 institutional controls be excluded from consideration (after 100 years) when the isolation characteristics of a repository are assessed. It has always been the intent of Part 60 not to rely on remedial actions (or other active institutional controls) to compensate for a poor site or inadequate engineered barriers. However, in the definition of 11 unanticipated processes and events, 11 Part 60 expressly contemplates that, in assessing human intrusion scenarios, 16

[7590-01] the Commission would assume that 11 institutions are able to assess risk and to take remedial actia.n at a level of social organization and technological competence equivalent to, or superior to, that which was a¢pl1ed in initiating the processes or events concerned 11 (emphasis added). Therefore, it might appear at first examination that Part 60 is at odds with the EPA assurance requirement. Although both the EPA regulation and Part 60 refer to "remedial action, 11 the action being considered is not the same. The EPA assurance requirement deals with a planned capability to maintain a site and, if necessary, to take remedial action at a site in order to a~sure that isolation is achieved. The Commission agrees that such a capability should not be relied upon. The extent to which corrective action may be taken after an unanticipated intrusion occurs is an entirely different matter. The Commission may wish to consider, for example, the extent to which the application of the limited societal response capability assumed by the rule (e.g., sealing boreholes consistent with current petroleum industry practice) could reduce the likelihood of releases exceeding the values specified in the containment requirements or could eliminate certain hypothetical scenarios such as systematic and persistent intrusions into a site. Subject to the comments above, the Commission concurs with the EPA 1 s definitions of 11 active 11 and 11 passive 11 institutional controls, as well as the principle that ongoing, planned, active protective measures should not be relied upon for more than 100 years after permanent closure. We are therefore proposing to include EPA 1 s definitions, together with a new section (§60.114)

• which would expressly provide that active (or passive) institutional controls shall not be deemed to assure compliance with the containment requirements over the long term.

Some activities which arguably fall within EPA 1 s definition of 11 active institutional controls 11 (e.g. remedial actions and monitoring parameters related to geo'logic repository performance) are relevant to assessing the likelihood and consequences of processes and events affecting the geologic setting. We are proposing, also in §60.114, to allow such activities to be considered for this purpose. We regard this as being fully consistent with the thrust of the EPA position. 17

[7590-01] EPA Assura~ce Requirement 40 CFR 191.14(b). Disposal systems shall be monitored after disposal to detect substantial and detrimental deviations from expected-performance. This monitoring shall be done with techniques that do not jeopardize the isolaticn of the wastes and shall be conducted until there are no significant concerns to be addressed by further monitoring. Analysis and Proposed_Changes. Part 60 currently requires DOE to carry out a performance confirmation program which is to continue until repository closure. Part 60 does not now require monitoring after repository closure because of the likelihood that post-closure monitoring of the underground facility would degrade repository performance. The Commission recognizes, however, that monitoring such parameters as regional groundwater flow characteristics may, in some cases, provide desirable information beyond that which would be obtained in the performance confirmation program, and the Commission is proposing to require such monitoring when it can be accomplished with6ut adversely affecting repository performance. The proposed requirement for post-permanent closure monitoring requires that such monitoring be continued until termination of a license. The Commission intends that a repository license not be terminated until such time as the Commission is convinced that there is no significant additional information to be obtained from such monitoring which would be material to a finding of reasonable assurance that long-term repository performance would be in accordance with the established performance objectives. A number of changes in Part 60 are proposed to reflect these views with respect to post-closure monitoring. First, a new section (§60.144) would provide for the performance confirmation program, already required by Subpart F of Part 60, to include a program of post-closure monitoring. Second, the licensing findings required at the time of license termination (§60.52(c)) would specifically be related to the results available from the post-closure monitoring program. Third, DOE would be required to provide more detailed information concerning its plans for post-closure monitoring in its original application (§60.21(c)) and when it applies to amend its license prior to permanent closure (§60.Sl(a)). 18

[7590-01] EPA Assurance Requirement 40 CFR 191.14(c). Disposal sites shall be designated by the most permanent markers, records, and other passive institutional eontrols practicable to indicate the dangers of the wastes and their location. Analysis and Proposed Changes. The existing provisions of 10 CFR Part 60 already require that DOE take the measures set out in this assurance requirement. For further information, refer to §§60.21(c)(8) (requirement that license application describe controls to regulate land use), §60.5l(a)(2) (information to be submitted, prior to permanent closure, with respect to land use controls, construction of monuments, preservation of records, etc.), and §60.121 (requirements for ownership and control of interests in land). EPA Assurance Req~irement 40 CFR 191.14(d). Disposal systems shall use different types of barriers to isolate the wastes from the accessible environment. Both engineered and natural barriers shall be included. Analysis and Proocsed Changes. This is another provision that is already inherent in Part 60. Nevertheless, in order to avoid any possible doubt in this regard, a new paragraph (§60.113(d)) would be added to state explicitly that the geologic repository shall incorporate a system of multiple barriers, both engineered and natural. Questions might arise regarding the types of engineered or natural materials or structures which would be considered to constitute 11 barriers, 11 as required by this new language. In this connBction, the Commission notes that §60.2 now contains this definition: 111 Barrier 1 means any material or structure that prevents or substantially delays movement of water or radionuclides 11 (emphasis added). Thus, consistent with the approach endorsed by EPA, the Commission considers that the new paragraph to be added to §60.113 will confirm its commitment to a multiple barrier approach as contemplated by Section 12l(b)(l)(B) of the Nuclear Waste Policy Act. 19

[7590-01] EPA Assurance Requirement 40 CFR 191.14(e). Places where there has been mining for resources, or where there is a reasonable expectation of exploration for scarce or easily accessible resources, or where there is a significant concentration of any material that is not widely available from other sources, should be avoided in selecting disposal sites. Resources to be considered shall include minerals, petroleum or natural gas, valuable geologic formations, and ground waters that are either irreplaceable because there is no reasonable alternative source of drinking water available for substantial populations or that are vital to the preservation of unique and sensitive ecosystems. Such places shall not be used for disposal of the wastes covered by this Part [40 CFR Part 191] unless the favorable characteristics of such places compensate for their greater likelihood of being disturbed in the future. Analysis and Prooosed Changes. Part 60 contains provisions that, in large part, are equivalent to this assurance requirement. See §60.122(c)(l7),(18), and (19). The existing regulation does not,- however, address 11 a significant concentration of any material that is not widely available from other sources. 11 The Commission believes that there is merit in having the presence of such concentrated material~ evaluated in the.context of the licensing proceeding: It is, after all, quite possible that the economic value of materials could change in the future in a way which might attract future exploration or development detrimental to repository performance. By adding an additional 11 potentially adverse condition 11 to those already set out in the regulation, DOE would be required to identify the presence of the materials in question and evaluate the effect thereof on repository performance, as specified in §60.122(a)(2)(ii). It should be noted that the presence of potentially adverse conditions does not preclude the selection and use of a site for a geologic repository, provided that the conditions* have been evaluated and demonstrated not to compromise performance. EPA Assurance Reauirement 40 CFR 191.14(f). Disposal systems shall be selected so that removal of most of the wastes is not precluded for a reasonable period of time after disposal. 20

[7590-01] Analysis and Proposed Changes. The Commission understands th~t the purpose of this ass-tirance requirement is to discourage or preclude the use of disposal concepts such as deep well injection for which it would be virtually impossible to remove or recover wastes regardless of the time and resources employed. (This provision is thus significantly different from the Commission's retrievability requirement.) For a mined geologic repository - which is the only type of facility subject to licensing under 10 CFR Part 60 - wastes could be located and recovered (i.e. 11 remo.ved, 11 in the sense that EPA is using the term), albeit at high cost, even after repository closure. A repository would therefore meet this assurance requirement, and no further statements on the subject in Part 60 are indicated. Petition for Rulemaking~ The Commission calls to the attention of all interested parties a pending petition for rulemaking submitted by the States of Nevada and Minnesota which deals, in large part, with the matters addressed by Section III of this notice. All relevant comments received by the Commission in response to the notice of receipt of the petition for rulemaking (published in the FEDERAL REGISTER on December 19, 1985, 50 FR 51701) will be considered along with comments received in response to this*notice. It should be noted that the Commission's present proposal conforms to the approach which was discussed with EPA during the course of its rulemaking. The petition for rulemaking follows the same language very closely, but does suggest certain modifications. The Commission would be particularly interested in comments addressed to the respective merits of the language proposed herein and that proposed by the States of Nevada and Minnesota. The Commission further notes that EPA has provided it with copies of comments regarding the assurance requirements that were received during the 40 CFR Part 191 rulemaking. These comments are available for inspection in the Commission's public document room. 21

[7590-01] IV. Section by Section Analysis of Proposed Conforming Amendments The Commission_considers that the simplest and most useful way to amend Part 60 for consistency with the EPA standards would be to incorporate directly within Part 60 a 11* the substantive requirements of the environmental standards promulgated by EPA, modified as necessary to conform to the terminology currently used in Part 60. The following paragraphs present a section-by-section analysis of the NRC 1 s proposed conforming amendments to Part 60. §60.1 Purpose and scope. This paragraph is analogous to EPA's 40 CFR 191.01 and 191.11 which state the applicability of the EPA standards. Part 60 is, however, a more specific regulation than the EPA standards in that it addresses only deep geologic repositories used for disposal of high-level radioactive wastes, while the EPA. standards apply to other disposal methods and certain other types of radioactive wastes. No changes are proposed for §60.1, but the Commission notes that any regulations developed in the future for alternative disposal methods or for other types of wastes will incorporate any applicable provisions of the EPA standards. §60.2 Definitions. New definitions of several terms are proposed for incorporation within §60.2. These are taken directly from the EPA standards (or from 40 CFR Part 190) and are needed for purposes of impiementation. These added terms are:

1) Active institutional control

2) Community water system

3) Passive institutional control

4) Significant source of groundwater

5) Special source of groundwater

6) Transmissivity

7) Uranium fuel cycle 22

[7590-01] In addition, the definition of 11controlled area 11 and the related definition of "accessible environment" in the EPA standards are different from those currently in Part 60. The Commission proposes to revise its current definitions to conform to EPA 1 swording. In the case of "accessible environment," the change is merely editorial. The amendments to the definition of 11 controlled area" are also largely editorial, except for the specification of extent - i.e., that the controlled area is to encompass 11 no more than 100 square kilometers" and to extend 11 horizontally no more than five kilometers in any direction from the outer boundary of the original location of the radioactive wastes. 11 The Commission has reviewed this aspect of the EPA definition in the light of the policies which it articulated when the final technical criteria of 10 CFR Part 60 were adopted. One of these policies was that the controlled area 11must be small enough to justify confidence that the monuments will effectively discourage subsurface disturbances. 11 The prior rule would have authorized the establishment of a controlled area well over 300 square kilometers (about 75,000 acres) in size. While we would not deny the abstract possibility that effective controls could be instituted even over an area of that magnitude, we have much greater confidence that DOE would be able to demonstrate an ability to discourage subsurface disturbances over an area of more limited extent. It is our judgment that the 100 square kilometers that EPA has adopted, after consultation with the NRC staff, represents an appropriate limitation. The other policy related to the definition of the 11 controlled area 11 is that it must allow the isolation capability of the rock surrounding the underground facility to be given appropriate weight in licensing reviews. This .isolation capability is measured in two ways. First, it is to be taken into account in determining whether releases of radionuclides to the accessible environment are within the limits specified in the 11 containment requirements" (40 CFR 191.13). Second, under §60.113(a)(2), the isolation capability of the geologic setting must be such that the pre-waste-emplacement groundwater travel time along the fastest path of likely radionuclide travel from the disturbed zone to the accessible environment shall be a specified period (generally, 1000 years). 23

[7590-01] The Commi~sion anticipates that adoption of the EPA terminology will have little effect on ac;,hievement of the containment requirements inasmuch as the controlled area is allowed a horizontal extent as large as five kilometers (presumably in the direction of radionuclide travel). Nor does the Commission anticipate that the limitation will make it impracticable to achieve a demonstration of compliance with the groundwater travel time performance objective. When the Commission adopted Part 60, it observed that the 11 accessible environment 11 might be larger (and, of course, the 11 controlled area 11 might therefore be smaller) than would be the case under the EPA standards then being considered (48 FR 28202). EPA has now moved in the direction of eliminating this difference, and the Commission 1 s amendment, for this reason, represents no important change. The proposed reduction in the maximum allowable extent of the controlled area (i.e., distance to the accessible environment) requires additional discussion to clarify the Commission 1 s concepts of 11disturbed zone 11 and 11 groundwater travel time. 11 *Groundwater travel time from the edge of the disturb~d zone to the accessible environment is one of the criteria which the Commission identified, at the time of proposed rulemaking, as providing confidence that the wastes will be isolated for at least as long as they are most hazardous (46 FR 35280, 35281, July 8, 1981). As noted above, this objective concerns travel time from the edge of the disturbed zone rather than from the edge of the underground facility. The Commission selected the disturbed zone for the purpose of determining the groundwater travel time since the physical and chemical processes which isolate the wastes are 11 especially difficult to understand in the area close to the emplaced wastes because that area is physically and chemically disturbed by the heat generated by those wastes. 11 Ibid. One potential type of effect which could alter local groundwater flow conditions is thermal buoyancy of groundwater. Because buoyancy effects could extend over significant distances (see, e.g., M. Gordon and M. Weber, 11 Non-isothermal Flow Modeling of the Hanford Site, 11 available in the NRC Public document room) and because the Commission is proposing to reduce the maximum allowable distance to the accessible environment, it is particularly 24

[7590-01] important to emphasize that the Commission did not intend such effects to serve as the basis Jar defining the extent of the disturbed zone. The Commission recognizes that such effects can be modeled with well developed assessment methods, and therefore were not the type of effects for which the disturbed zone concept was developed. Any contrary implication in our statement of considerations at the time the technical criteria were issued in final form (see 48 FR 28210) should be disregarded. (The staff is currently developing Generic Technical Positions discussing the disturbed zone and groundwater travel time. These technical positions will be publicly available prior to promulgation of these proposed amendments in final form, and will illustrate how the staff intends to approach these two concepts.) Four other terms defined by EPA deserve additional discussion here. The EPA standards contain a definition of the term 11 transuranic radioactive waste. 11 The Commission does not use this term in Part 60 and thus has no need to define it there. All radioactive waste stored or disposed of at a geologic repository 'licensed under Part 60 - including transuranic radioactive waste - would be subject to the requirements of the EPA standards as applied by the rules proposed herein. EPA defines the terms 11 storage 11 and 11disposal 11 to.mean retrievable storage and permanent isolation, respectively. Under Part 60, on the other hand, the term 11 storage 11 is used in the sense of Section 202 of the Energy Reorganization Act of 1974 (42 USC 5842) to refer to both long-term storage and disposal of wastes. The difference in EPA and NRC usage has no effect upon application of the EPA standards at NRC-licensed geologic repositories. The Commission has recently defined 11 groundwater, 11 for purposes of Part 60, to include all water which occurs below the land surface (50 FR 29641, July 22, 1985), while the EPA standards use the term to mean water below the land surface in a zone of saturation (emphasis added). The EPA standards use the term only in connection with the more specifically defined ~erms 11 significant source of ground water" and 11 special source of ground water. 11 Thus, it is possible to identify 11 significant 11 or 11 special 11 sources of groundwater unambiguously with either definition of the term 11 groundwater, 11 and the Commission therefore proposes to retain its current definition of the term. 25

[7590-01] § 6 0. 21 Co n t e n t _ o*f a pp l i cat i on.. Paragraph (c)ll)(ii)(C) now requires a license application to include certain evaluations of the performance of a proposed geologic repository for the period after permanent closure. The Commission proposes to add an additional sentence to this paragraph requiring that the results of these analyses be incorporated into an overall probability distribution of cumulative releases to the extent practicable. This reflects the language of EPA 1s definition of 11 performance assessment. 11 The Commission also proposes to add a new paragraph to §60.21 requiring submittal of a general description of the program for post-permanent closure monitoring of the geologic repository. (See the discussion (Section III) regarding the EPA assurance requirements - specifically 40 CFR 191.14(b).) §60.51 License amendment for permanent closure. Paragraph (a)(l) currently requires that an application to amend a license for permanent closure must include a description of the program for post-permanent closure monitoring of the geologic repository. The Commission proposes to revise this paragraph to specify in more detail the information to be submitted, including descriptions of the parameters to be monitored and the length of time for which the monitoring is to be continued. (See also th~ preceding discussion regarding 40 CFR 191.14(b).) §60.52 Termination of license. The Commission proposes to add a new condition for license termination which would explicitly require that the results available from post-permanent closure monitoring confirm the expectation that the repository will comply with the performance objectives of Part 60. (See also the preceding discussion regarding 40 CFR 191.14(b).) §60.101 Purpose and nature of findings. The EPA standards use the phrase 11 reasonable expectation 11 to describe the required level of confidence that compliance will be achieved with the provisions of the standards. The Supplementary Information accompanying the EPA standards contrasts the concept of 11 reasonable expectation 11 with the 26

[7590-01] reasonable assurance standard that is used by the Commission in dealing with other licensing actJons. The Commission has considered adopting EPA 1 s 11 reasonable expectation 11 concept, but has decided that doing so would result in a needless, and potentially confusing, proliferation of terms. Instead, the Commission proposes to expand the current discussion of 11 reasonable assurance 11 in §60.101 to make clear its belief that the level of confidence associated with the term, when used in connection with the long-term issues involved in repository licensing, is the same as that sought by EPA in its use of the term 11 reasonable expectation. 11 §60.111 Performance of the geologic reoository operations area through permanent closure. Paragraph (a) currently requires compliance with 11 such generally applicable environmental standards for radioactivity as may have been established by the Environmental Protection Agency. 11 The Commission proposes to replace this wording with the specific dose limits promulgated by EPA in 40 CFR 191.03(a) of its standards. The proposed wording would apply the dose limits to any member of the public outside the geologic repository operations area, consistent with EPA 1 s phrase 11 any member of the public in the general environment. 11 The EPA provision includes wording that requires reasonable assurance of compliance with the dose limits. In Part 60, Subpart B now specifies the findings that must be made by the Commi~sion for issuance of a license, including a finding of reasonable assurance of compliance with the performance* objective of §60.111. Because Part 60 already requires that findings be made with reasonable assurance, it is unnecessary to repeat such a requirement within this proposed performance objective. One additional amendment, unrelated to the EPA standards, is being proposed for §60.111. The current wording of this section now requires that the geologic repository operations area be designed so that radiation

• exposures, radiation levels, and releases of radioactive materials 11will at all times be maintained within the limits specified in Part 20...

11 (emphasis added). The words 11at all times 11 were intended to emphasize the need to design the geologic repository operations area so that any waste retrieval found to be necessary in the future could be carried out in 27

[7590-01] conformance with-the radiation protection requirements of 10 CFR Part 20. In order to clarify the meaning of the phrase 11at all times, 11 the Commission is proposing to revise this wording to read 11will at all times, including the retrievability period of §60.lll(b), be maintained within the limits specified in Part 20.. 11 §60.112 Overall system performance objective for the geologic repository after permanent closure. The current wording of this section now refers to 11 such generally applicable environmental standards for radioactivity as may have been established by the Environmental Protection Agency. 11 The Commission proposes to replace this wording with the specific provisions promulgated by EPA in 40 CFR 191.13, 191.15 and 191.16 of its standards, reworded as appropriate for incorporation into Part 60. As discussed previously, the Commission proposes to revise the language of §60.101 to make clear that its concept of the phrase 11 reasonable assurance 11 in Part 60 closely parallels the meaning intended by 11 reasonable expectation 11 in the EPA standards. Inasmuch as the findings to be made by the Commission must be made with 11 reasonable assurance, 11 there is no need to use the term 11 reasonable expectation 11 in the specific standards. EPA requires that cumulative releases of radioactivity to the environment be evaluated on the basis of 11 performance assessments. 11 This concept already is built into the structure of Part 60. As discussed previously, however, the Commission is proposing an addition to §60.21 which would specifically require a license application to incorporate the results of analyses, as stated by EPA, in an overall probability distribution of cumulative releases to the extent practicable. The individual and groundwater protection requirements of the EPA standards refer to 11 undisturbed performance 11 of a disposal system, where 11 undisturbed performance 11 is defined to mean 11 the predicted behavior of a disposal system, including consideration of the uncertainties in predicted behavior, if the disp~sal system is not disrupted by human intrusion or the 28

[7590-01] occurrence of u_n-likely natural events. 11 The Commission considers undisturbed performance, as defjned by EPA, to be equivalent to performance in the absence of 11 unanticipated processes and events, 11 as currently defined in Part 60. The Commission is prop.osing to use the current Part 60 terminology rather than introduce a new term from the EPA standards. §60.113 Performance of particular barriers after permanent closure. Section 60.113 specifies performance objectives for individual barriers of a geologic repository, and permits the Commission to approve or specify specific numerical requirements on a case-by-case basis. The Commission considers that §60.113 clearly requires use of both engineered and natural barriers. Nevertheless, in order to avoid any possible confusion regarding the provisions of §60.113(b), the Commission proposes to add additional clarifying language to this section making it clear that a repository must incorporate a system of multiple barriers, both engineered and natural. (See the preceding discussion in Section III regarding the EPA assurance requirements - specifically 40 CFR 191.14(d).) Paragraph (b)(l) of §60.113 now refers to 11 any generally applicable environmental standard for radioactivity established by the Environmental Protection Agency. 11 The Commissicrn proposes to replace this wording with a direct reference to the overall system performance objectives of §60.112. §60.114 Institutional control. The Commission proposes to add a new §60.114 to Part 60 to clarify its views regarding reliance on institutional controls. (See the preceding discussion in Section III.regarding 40 CFR 191.14(a).) §60.115 Release limits for overall system performance objectives. The Commission proposes that the table of release limits (and accompanying notes) in Appendix A of the EPA standards be added to Part 60. in a new §60.115. §60.122 Sitina criteria. Part 60 contains provisions related to the presence of economically valuable mineral resources at a repository site. Part 60 does not, however, 29

[7590-01] address deposi~s of materials which, though of limited economic value, are not reasonably availab!e from other sources. Because the economic value of materials could change in the future, the Commission proposes to add an additional potent1ally adverse condition to Part 60 related to significant concentrations of material that is not reasonably available from other sources. EPA used the term 11widely available. 11 The Commission believes that an additional consideration --the practicality of obtaining materials from alternative sources - is also germane, and the Commission is therefore proposing the phrase 11 reasonably available 11 for this potentially adverse condition. (See also the preceding discussion in Section III regarding 40 CFR 191.14(e).) §60.144 Monitoring after permanent closure. Part 60 currently requires DOE to carry out a performance confirmation program which is to continue until repository closure. Part 60 does not now require monitoring after repository closure because of the likelihood that post-closure monitoring of the underground facility would degrade repository performance. The Commission proposes to add a new §60.144 to Part 60 which would require post-closure monitoring of repository characteristics provided that such monitoring can be expected to provide material confirmatory information regarding long-term reposito-ry performance and provided that the means for conducting such monitoring will not degrade repository performance. (See the preceding discussion in Section III regarding 40 CFR 191.14(b).) Environmental Impact Pursuant to Section 121(c) of the Nuclear Waste Policy Act of 1982, this proposed rule does not require the preparation of an environmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 or any environmental review under subparagraph (E) or (F) of section 102(2) of this Act. Paperwork Reduction Act Statement The information collection requirements contained in this proposed rule are of limited applicability and affect fewer than ten respondents. Therefore, 30

[7590-01] Office of Management and Budget clearance is not required pursuant to the Paperwork Reduction_Act of 1980 (44 U.S.C. 3501 et seq.). Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility.A.ct of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. The only entity subject to regulation under this rule is the U.S. Department of Energy, which does not fall within the scope of the definition of 11 small entities 11 set forth in the Regulatory Flexibility Act. List of Subjects in 10 CFR Part 60 High-level waste, Nuclear power plants and reactors, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Waste treatment and disposal. Backfitting Requirements The provisions of 10 CFR 50.109 on backfitting do not apply to this rulemaking because the rule is not applicable to production and utili~ation facilities licensed under 10 CFR Part 50. ror 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, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR Part 60. PART 60 -- DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES

1.

The authority citation for Part 60 continues to read as follows: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 31

[7590-01] 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332)_; sec. 121, Pub. L. 97-425, 96 Stat. 2228 (42 U.S.C. 10141). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), §§60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

2.

Section 60.2 is amended by revising the definitions of 11 accessible environment 11 and 11 controlled area 11 and by adding seven new definitions in alphabetical order as follows: §60.2 Definitions. 11Accessible environment 11 means: (1) the atmosphere, (2) land surfaces, (3) surface waters, (4) oceans, and (5) all of the lithosphere that is beyond the controlled area. 11Active institutional control 11 means: (1) controlling access to a disposal site by any means other than passive institutional control, (2) performing maintenance operations or remedial actions at a site, (3) controlling or cieaning up releases from a site, or (4) monitoring parameters related to disposal system performance. 11 Community water system 11 means a system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. 11 Controlled area 11 means: (1) a surface location, to be identified by passive institutional controls, that encompasses no more than 100 square kilometers and extends horizontally no more than five kilometers in any 32

[7590-01] direction from the outer boundary of the underground facility, and (2) the subsurface underlyi~g such a surface location. 11 Passive institutional control 11 means: (1) permanent markers placed at a disposal site, (2) public records and archives, (3) government ownership and regulations regarding land or resource use, and (4) other methods of preserving knowledge about the location, design, and contents of a disposal system. 11 Significant source of groundwater 11 means: (1) an aquifer that: (i) is saturated with water having less than 10,000 milligrams per liter of total dissolved solids; (ii) is within 2,500 feet of the land surface; (iii) has a transmissivity greater than 200 gallons per day per foot, provided that any formation or part of a formation included within the source of groundwater has a hydraulic conductivity greater than 2 gallons per day per square foot; and (iv) is capable of continuously yielding at least 10,000 gallons per day to a pumped or flowing well for a period of at least a year; or (2) an aquifer that provides the primary source of water for a community water system as of November 18, 1985. 11 Special source of groundwater 11 means those Class I groundwaters identified in accordance with the Envirorimental Protection Agency 1 s Ground-Water Protection Strategy published in August 1984 that: (1) are within the controlled area encompassing a disposal system or are less than five kilometers beyond the controlled area; (2) are supplying drinking water for thousands of persons as of the date that the Department chooses a location within that area for detailed characterization as a potential site for a disposal system (e.g., in accordance with Section 112(b)(l)(B) of the NWPA); and (3) are irreplaceable in that no reasonable alternative source of drinking water is available to that population. 11Transmissivity 11 means the hydraulic conductivity integrated over the saturated thickness of an underground formation. The transmissivity of a series of formations is the sum of the individual transmissivities of each formation comprising the series. 33

[7590-01] "Uranium f-uel cycle" means the operations of milling of uranium ore, chemical conversiorrof uranium, isotopic enrichment of uranium, fabrication of uranium fuel, gen~ration of electricity.by a light-water-cooled nuclear power plant using uranium fuel, and reprocessing of spent uranium fuel, to the extent that these directly support the production of electrical power for public use utilizing nuclear energy, but excludes mining operations, operations at waste disposal sites, transportation of any radioactive material in support of these operations, and the reuse of recovered non-uranium special nuclear and by-product materials from the cycle.

3.

Section 60.21 is amended by revising paragraph (c)(l)(ii)(C), adding a new paragraph (c)(9) and redesignating the existing paragraphs (c)(9) through (c)(lS) as paragraphs (c)(l0) through (c)(l6). §60.21 Content of aeolication. (c) (1) (ii) * (C) An evaluation of the performance of the proposed geologic repository for the period after permanent closure, assuming anticipated processes and events, giving the rates and quantities of releases of radionuclides to the accessible environment as a function of time; and a similar evaluation which assumes the occurrence of unanticipated processes and events. In making such evaluations, estimated values shall be incorporated into an overall probability distribution of cumulative release to the extent practicable. (9) A general description of the program for post-permanent closure monitoring of the geologic repository. 34

I e [7590-01]

4.

SectioA-60.51 is amended by revising paragraph (a)(l) to read as fo 11 ows: §60.51 License amendment for oermanent closure. (a) (1) A detailed description of the program for post-permanent closure monitoring of the geologic repository in accordance with §60.144. As a minimum, this description shall: (i) identify those parameters that will be monitored; (ii) indicate how each parameter will be used to evaluate the expected performance of the repository; and (iii) discuss the length of time over which each parameter should be monitored to adequately confirm the expected performance of the repository.

5.

Section 60.52 is amended by designating current paragraph (c)(3) as paragraph (c)(4) and by adding a new paragraph (c)(3) as follows: §60.52 Termination of license. (c) (3) That the results available from the post-permanent closure monitoring program confirm the expectation that the rep~sitory will comply with the performance objectives set out at §60.112 and §60.113; and

6.

Section 60.101 is amended by revising paragraph (a)(2) to read as fo 11 ows: 35

§60.101 Purpose ~nd nature of findings. (a) * [7590-01] (2) While th~se performance objectives and criteria are generally stated in unqualified terms, it is not expected that complete assurance that they will be met can be presented. A reasonable assurance, on the basis of the record before the Commission, that the objectives and criteria will be met is the general standard that is required. For §60.112, and other portions of this subpart that impose objectives and criteria for repository performance over long times into the future, there will inevitably be greater uncertainties. 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. For such long-term objectives and criteria, what is required is_ reasonable assurance, making allowance for the time period, hazards, and uncertainties involved, that the outcome will be in conformance with those objectives and criteria. Demonstration of compliance with such objectives and criteria will involve the use of data from accelerated tests and predictive models that are supported by such measures as field and laboratory tests, monitoring data and natural analog studies. Demonstration of compliance with the performance objectives of §60.112 will also involve predicting the likelihood and consequences of events and processes that may disturb the repository. Such predictions may involve complex computational models, analytical theories and prevalent expert judgment. Substantial uncertainties are likely to be encountered and sole reliance on numerical predictions to determine compliance may not be appropriate. In reaching a determination of reasonable assurance, the Commission may supplement numerical analyses with qualitative judgments including, for example, consideration of the degree of diversity or redundancy among the multiple barriers of a specific repository. 36

[7590-01]

7.

In section.60.111, paragraph (a) is revised to read as follows: §60.111 Performance of the qeologic repository operations area through permanent closure. (a) Protection against radiation exposures and releases of radioactive material. The geologic rep?sitory operations area shall be designed so that until permanent closure has been completed: (1) The annual dose equivalent to any member of the public outside the geologic repository operations area, resulting from the combination of (i) discharges of radioactive material and direct radiation from activities at the geologic repository operations area and (ii) uranium fuel cycle operations, shall not exceed 25 millir~ms to the whole body, 75 millirems to the ~hyroid, and 25 millirems to any other critical organ. (2) Radiation exposures and radiation levels, and releases of radioactive materials to unrestricted areas, will at all times, including the retrievability period of §60.lll(b), be maintained within the limits specified in Part 20 of this chapter.

8.

Section 60.112 is revised to.read as follows: §60.112 Overall system performance objective for the geologic repository after oermanent closure. The geologic setting shall be selected and the engineered barrier system and the shafts, boreholes and their seals shall be designed: (a) So that, for 10,000 years following permanent closure, cumulative releases of radionuclides to the accessible environment, from all anticipated and unanticipated processes and events, shall: (1) Have a likelihood of less than one chance in 10 of exceeding the quantities calculated in accordance with §60.115. (2) Have a likelihood of less than one chance in 1,000 of exceeding ten times the quantities calculated in accordance with §60.115. 37

[7590-01] (b) So that fo~ 1,000 years after permanent closure, and in the absence of unanticipated proce-sses and events, the annual dose equivalent to any member of the public in the accessible environment does not exceed 25 millirems to the whole body or 75 millirems to any critical organ. For the purpose of applying this paragraph, all potential pathways from the geologic repository to people shall be considered, inclu~ing the assumption that individuals consume 2 liters per day of drinking water from any significant source of groundwater outside of the controlled area. (c) So that for 1,000 years after permanent closure, and in the absence of unanticipated processes and events: (1) Except as provided in paragraph (c)(2) of this section, the radionuclide concentrations averaged over any year in water withdrawn from any portion of a special source of groundwater do not exceed: (i) 5 picocuries per liter of radium-226 and radium-228; (ii) 15 picocuries per liter of alpha-emitting radionuclides (including radium-226 and radium-228 but excluding radon); or (iii) the combined concentrations of radionuclides that emit either beta or gamma radiation that would produce an annual dose equivalent to the total body or any internal organ greater than 4 millirems per year if an individual consumed 2 liters per day of drinking water from such a source of groundwater. (2) If any of the average annual radionuclide concentrations existing in a special source of groundwater before construction of the geologic repository operations area already exceed the limits in paragraph (c)(l) of this section, the increase, caused by the geologic repository, in the existing average annual radionuclide concentrations in water withdrawn from that special source of groundwater does not exceed the limits specified in paragraph (c)(l) of this section. 38

[7590-01]

9.

In section 60.113, paragraph (b)(l) is revised and a new paragraph (d) is added to read as-follows: §60.113 Performance of particular barriers after permanent closure. (b) (1) The overall system performance objectives of §60.112. (d) Notwithstanding the provisions of paragraph (b) of this section, the geologic repository shall incorporate a system of multiple barriers, both engineered and natural.

10.

A new §60.114 is added to read as follows: §60.114 Institutional control. Neither active nor passive institutional control shall be deemed to assure compliance with the overall system performance objectives set out at §60.112 for more than 100 years after permanent closure. However, the effects of institutional c~ntrol may be considered in assessing, for purposes of that* section, the likelihood and C?nsequences of processes and events affecting the geologic setting.

11.

A new §60.115 is added to read as follows: §60.115 Release limits for overall system performance objective._ The following table shall be used to make the calculations referred to in paragraph (a) of §60.112. 39

[7590-01] TABLE 1 ---RELEASE.LIMITS FOR OVERALL SYSTEM PERFORMANCE OBJECTIVE (Cuma-lative Releases to the Accessible Environment for 10,000 Years After Disposal) Radionuclide Americium-241 or 243 Carbon-14 Cesium-135 or 137 Iodine-129 Neptunium-237 Plu~onium-238, 239, 240 or 242 - Radium-226 - - Strontium Technetium-99 Thorium-230 or 232 - - - - - Tin-126 Uranium-233, 234, 235, 236 or 238 Release Limit per 1000 MTHM or other unit of waste (see Notes) (curies) 100 100 1000 100 100 100 100 1000 - - - - 10000 10 1000 100 Any other alpha-emitting radionuclide with a half-life greater than 20 years 100 Any other radionuclide with a half-life greater than 20 years that does not emit alpha particles 40 1000

[7590-01] Application of Table 1 NOTE 1: Units of Waste. The Release Limits in Table 1 apply to the amount of wastes in any one of the following: (a) an amount of spent nuclear fuel containing 1,000 metric tons of heavy metal (MTHM) exposed to a burnup between 25,000 megawatt-days per metric ton of heavy metal (MWd/MTHM) and 40,000 MWd/MTHM; (b) the high-level radioactive wastes generated from reprocessing each 1,000 MTHM exposed to a burnup between 25,000 MWd/MTHM and 40,000 MWd/MTHM; (c) each 100,000,000 curies of gamma or beta-emitting radionuclides with half-lives greater than 20 years but less than 100 years (for use as discussed in Note 5 or with materials that are identified by the Commission as high-level radioactive waste in accordance with part (B) of the definition of high-level waste in the Nuclear Waste Policy Act (NWPA)); (d) each 1,000,000 curies of other radionuclides (i.e., gamma or beta-emitters with half-lives greater than 100 years or any alpha-emitters with half-lives greater than 20 years) (for use as discussed in Note 5 or with materials that are identified by the Commission as high-level waste in accordance with part (B) of the definition of high-level waste in the NWPA); or (e) an amount of transuranic (TRU) wastes containing one million curies of alpha-emitting transuranic radionuclides with half-lives greater than 20 years. NOTE 2: Release Limits for Specific Oisoosal Systems. To develop Release Limits for a particular disposal system, the quantities in Table 1 shall be adjusted for the amount of waste included in the disposal system compared to the various units of waste defined in Note 1. For example: (a) If a particular disposal system contained the high-level wastes from 50,000 MTHM, the Release Limits for that system would be the quantities in Table 1 multiplied by 50 (50,000 MTHM divided by 1,000 MTHM). (b) If a particular disposal system contained three million curies of alpha-emitting transuranic wastes, the Release Limits for that system would be 41

(7590-01] the quantities in Table 1 multiplied by three (three million curies divided by one million curies). (c) If a particular disposal system contained both the high-level wastes from 50,000 MTHM and 5 million curies of alpha-emitting transuranic wastes, the Release Limits for that system would be the quantities in Table 1 multiplied by 55: 50,000 MTHM 5,000,000 curies TRU + = 55 1,000 MTHM 1,000,000 curies TRU NOTE 3: Adjustments for Reactor Fuels with Different Burnup. For disposal systems containing reactor fuels (or the high-level wastes from reactor fuels) exposed to an average burnup of less than 25,000 MWd/MTHM or greater than 40,000 MWd/MTHM, the units of waste defined in (a) and (b) of Note 1 shall be adjusted. The unit shall be multiplied by the ratio of 30,000 MWd/MTHM divided by the fuel 1 s actual average burnup, except that a value of 5,000 MWd/MTHM may be used when the average fuel burnup is below 5,000 MWd/MTHM and a value of 100,000 MWd/MTHM shall be used when the average fuel burnup is above 100,000 MWd/MTHM. This adjusted unit of waste shall then be used in determining the Release Limits for the disposal system. For example, if a particular disposal system contained only high-level wastes with an average burnup of 3,000 MWd/MTHM, the unit of waste for that disposal system would be: (30,000 MWd/MTHM) 1,000 MTHM X ----------------- = 6,000 MTHM ( 5,000 MWd/MTHM) If that disposal system contained the high-level wastes from 60,000 MTHM (with an average burnup of 3,000 MWd/MTHM), then the Release Limits for that system would be the quantities in Table 1 multiplied by ten: 60,000 MTHM = 10 6,000 MTHM 42

[7590-01] which is th.e sime as: 60, (JOO MTHM ( 5,000 MWd/MTHM) X ----------------- 10 1,000 MTHM (30,000 MWd/MTHM) NOTE 4: Treatment of Fractionated Hiah-Level Wastes. In some cases, a high-level waste stream from reprocessing spent nuclear fuel may have been (or will be) separated into two or more high-level waste components destined for different disposal systems. In such cases, the implementing agency may allocate the Release Limit multiplier (based upon the original MTHM and the average fuel burnup of the high-level waste stream) among the various disposal systems as it chooses, provided that the total Release Limit multiplier used for that waste stream at all of its disposal systems may not exceed the Release Limit multiplier that would be used if the entire waste stream were disposed of in one disposal system. NOTE 5: Treatment of Wastes with Poorly Known Burnups or Original MTHM. In some cases, the records associated with particular high-level waste streams may not be adequate to accurately determine thi original metric tons of heavy metal in the reactor fuel that created the waste, or to determine the average burnup that the fuel was exposed to. If the uncertainties are such that the original amount of, heavy metal or the average fuel burnup for particular high-level waste streams cannot be quantified, the units of waste derived from (a) and (b) of Note 1 shall no longer be used. Instead, the units of waste defined in (c) and (d) of Note 1 shall be used for such high-level waste streams. If the uncertainties in such information allow a range of values to be associated with the original amount of heavy metal or the average fuel burnup, then the calculations d~scribed in previous Notes will be conducted using the values that result in the smallest Release Limits, except that the Release Limits need not be smaller than those that would be calculated using the units of waste defined in (c) and (d) of Note 1. 43

[7590-01] NOTE 6: LJ5e of Release Limits to Determine Compliance with §60.112(a). Once release limits-for a particular system have been determined in accordance with Notes 1 through 5, these release ltmits shall be used to determine compliance with the requirements of §60.112(a) as follows. In cases where a mixture of radionuclides is projected to be released to the accessible environment, the limiting v_alues shall be determined as follows: For each radionuclide in the mixture, determine the ratio between the cumulative release quantity prGjected over 10,000 years and the limit for that radionuclide as determined from Table 1 and Notes 1 through 5. The sum of such ratios for all the radionuclides in the mixture may not exceed one with regard to §60.112(a)(l) and may not exceed ten with regard to §60.112(a)(2). For example, if radionuclides A, 8, and Care projected to be re1eased in amounts Q, Qb, and Q, and if the applicable Release Limits are RL, RLb, and a c a RL, then the cumulative releases over 10,000 years shall be limited so that C the following relationship exists: Qa Qb Qc RL a + + RL b RL C 1 44

[7590-01]

12.

In sectio*n 60.122, paragraph (c) is amended by redesignating the current paragraphs-(c)(l8) through (c)(21) as paragraphs (c)(l9) through (c)(22) and by adding a new paragraph (c)(l8) to read as fo 11 ows: §60.122 Siting criteria. (c) (18) The presence of significant concentrations of any naturally-occurring material that is not reasonably available from other sources.

13.

A new §60.144 is added to read as follows: §60.144 Monitorina After Permanent Closure. A program of monitoring shall be conducted after permanent closure to monitor all repository characteristics which can reasonably be expected to provide material confirmatory information regarding long-term repository performance, provided that the means for conducting such monitoring will not degrade repository performance. This program shall be continued until termination of a license. Dated at Washington, D.C. this 1986. For the Nuclear Regulatory Commission. Secretary o the Commission 45}}