ML23156A048

PRM-061-002 - 57FR32743 - New England Coalition on Nuclear Pollution Petition for Rulemaking (Amendment of Regulations on Waste Classification of Low-Level Waste)

ML23156A048
Person / Time
Issue date:	07/23/1992
From:	Taylor J NRC/EDO
To:
References
57FR32743, PRM-061-002
Download: ML23156A048 (1)

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DOCUMENT DATE:

TITLE:

CASE

REFERENCE:

KEYWORD:

ADAMS Template: SECY-067 07/23/1992 PRM-061-002 - 57FR32743 - NEW ENGLAND COALITION ON NUCLEAR POLLUTION PETITION FOR RULEMAKING (AMENDMENT OF REGULATIONS ON WASTE CLASSIFICATION OF LOW-LEVEL WASTE)

PRM-061-002 57FR32743 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMARING PROPOSED RULE:

PRM-61-002 OPEN ITEM (Y/N) N RULB NAME:

NEW ENGLAND COALITION ON NUCLEAR POLLUTION PETITION FOR RULEMARING (AMENDMENT OF REGULATIONS ON WASTE CLASSIFICATION OF LOW-LEVEL WASTE)

PROPOSED RULE FED REG CITE:

57FR32743 PROPOSED RULE PUBLICATION DATE:

07/23/92 ORIGINAL DATE FOR COMMENTS: 09/21/92 NUMBER OF COMMENTS:

EXTENSION DATE:

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14 FINAL RULE FED. REG. CITE: 59FR17052 FINAL RULE PUBLICATION DATE: 04/11/94 NOTES ON PETITION DENIED. NOTICE OF DENIAL SIGNED BY EDO.

FILED LOCATED ON TATUS Pl..

F ROLE TO FIND THE STAFF CONTACT OR VIEW THE RULEMARING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PRM-61-002 RULE TITLE:

.OPOSED RULE SECY PAPER:

NEW ENGLAND COALITION ON NUCLEAR POLLUTION PETITION FOR RULEMAKING (AMENDMENT OF REGULATIONS ON WASTE CLASSIFICATION OF LOW-LEVEL WASTE)

PROPOSED RULE SRM DATE:

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DATE PROPOSED RULE SIGNED BY SECRETARY:

DATE FINAL RULE 07/16/92 FINAL RULE SECY PAPER:

FINAL RULE SRM DATE:

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SIGNED BY SECRETARY:

03/29/94 STAFF CONTACTS ON THE RULE CONTACT1: MICHAELT. LESAR CONTACT2:

MAIL STOP: T-6D59 MAIL STOP:

PHONE:

PHONE:

DOCKET NO. PRM-61-002 (57FR32743)

In the Matter of NEW ENGLAND COALITION ON NUCLEAR POLLUTION PETITION FOR RULEMAKING (AMENDMENT OF REGULATIONS ON WASTE CLASSIFICATION OF LOW-LEVEL WASTE)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 05/04/92 04/25/92 07/30/92 07/16/92 08/20/92 08/16/92 09/21/92 09/18/92 09/21/92 09/14/92 09/21/92 09/19/92 09/21/92 09/21/92 09/21/92 09/18/92 09/22/92 09/21/92 09/22/92 09/21/92 09/22/92 09/21/92 09/28/92 09/18/92 09/28/92 09/18/92 09/30/92 09/22/92 10/19/92 10/19/92 10/14/92 10/07/92 NEW ENGLAND COALITION ON NUCLEAR POLLUTION PETITION FOR RULEMAKING FEDERAL REGISTER NOTICE - RECEIPT OF PETITION FOR RULEMAKING COMMENT OF MR. DAVID W. HALL (

1)

COMMENT OF VERMONT LOW-LEVEL RADIOACTIVE WASTE AUTH (MR. CHRISTOPHER R. HALLADAY) (

2)

COMMENT OF MR. DONALD G. DORAN (

3)

COMMENT OF SUSAN L. HIATT, DIRECTOR (

4)

COMMENT OF CA RADIOACTIVE MATERIALS MANAGEMENT FOR (DR. ALAN PASTERNAK) (

5)

COMMENT OF US ECOLOGY, INC.

(RONALD K. GAYNOR, SENIOR VP) (

6)

COMMENT OF ROGERS & ASSOCIATES ENGINEERING CORP.

(ROBERT D. BAIRD, VICE PRESIDENT) (

7)

COMMENT OF DOE (ROBERT F. PELLETIER, DIRECTOR) (

COMMENT OF SO CA CHAPTER OF THE HEALTH PHYSICS SOC (DAVID J. KRUEGER) (

9)

COMMENT OF WADE H. WILLIAMS (

10)

COMMENT OF M. FRANK PETELKA, PHO (

11)

COMMENT OF COMMONWEALTH EDISON (MARCIA A. JACKSON, ADMINISTRATOR) (

12)

LTR FROM PETITIONER RE: COMMENTS NOS. 7 & 10 COMMENT OF DEPARTMENT OF HEALTH - CALIFORNIA (EDGARD. BAILEY, C.H.P. CHIEF) (

13)

8)

DOCKET NO. PRM-61-002 (57FR32743}

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 11/09/92 10/26/92 LTR FROM PETITIONER ADDRESSING COMMENTS l THRU 12 12/01/92 11/24/92 LTR PELLETIER (DEPARTMENT OF ENERGY} TO CHILK PROVIDING ADDITIONAL COMMENTS ON THE PETITION AS A SUPPLEMENT TO COMMENT NO. 8 01/13/93 01/05/93 PETITIONER NECNP'S ANALYSIS OF THE SUPPLEMENTAL COMMENT OF THE DEPARTMENT OF ENERGY DATED 11/24/92 03/02/94 02/25/94 COMMENT OF VERMONT DEPARTMENT OF PUBLIC SERVICE (RICHARD P. SEDANO, -COMMISSIONER} (

14}

04/13/94 03/29/94 FEDERAL REGISTER NOTICE ON DENIAL OF PETITION FOR RULEMAKING. PUBLISHED ON 4/11/94 AT 59 FR 17052.

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NUCLEAR REGULATORY COMMISSION 10 CFR Part 61

[Docket No. PRM-61-2]

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A New England Coalition on Nuclear Pollution, Inc.; Denial of Petition for Rulemaking AGENCY:

Nuclear Regulatory Commission.

ACTION:

Denial of petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking submitted by the New England Coalition on Nuclear Pollution, Inc.

(PRM-61-2).

The petitioner requested that the NRC amend its regulations regarding waste classification of low-level radioactive waste (LLW) to restrict the number and types of waste streams which can be disposed of in near-surface disposal facilities and prepare a supplemental Environmental Impact Statement (EIS).

The NRC is denying the petition because the "new information" as presented by the petitioner is not sufficient to invalidate the existing classification system or justify that NRC prepare a supplemental EIS.

ADDRESSES:

Copies of the petition for rulemaking, the public comments received, the petitioner's response to these comments, and the NRC's letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington DC 20555, Telephone:

301-492-3877 or Robert Hogg, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Convnission, Washington, DC 20555, Telephone: 301-504-2579.

SUPPLEMENTARY INFORMATION:

The Petition On July 23, 1992 (57 FR 32743}, the Nuclear Regulatory Commission published a notice of receipt of a petition for rulemaking filed by the New England Coalition on Nuclear Pollution, Inc.

The petitioner requested that the NRC amend 10 CFR Part 61 concerning the classification of low-level radioactive waste for near-surface disposal to restrict the number and types of waste streams which may be disposed of in these disposal facilities.

The petitioner believes the requested changes are necessary because of significant new information concerning intrusion into LLW disposal facilities that was not available at the time the original EIS was developed.

Because of the new information, the petitioner argues that the NRC must prepare a supplemental EIS since the premises leading to the conclusions reached in the original EIS have substantially changed.

The petition is based on three purported changes that the petitioner believes have occurred since the rule was promulgated.

The petitioner asserts that these changes affect the basis used to promulgate 10 CFR Part 61.

2

1.

The petitioner ~rgues that the original EIS was based on a 500 mrem per year dose to "inadvertent intruders." Revised guidance by international organizations has reduced dose limits for individual members of the. public to 100 mrem per year and this new criterion has been incorporated into 10 CFR Part 20.

The petitioner presumes that the intruder and public dose limits are integrally linked. The petitioner asserts that this revised dose limit should also be incorporated into the waste classification system and that this would impact waste streams allowed to be disposed of in LLW facilities.

2.

The petitioner states that the three intrusion scenarios that the NRC considered in the development of 10 CFR Part 61 do not define a broad enough spectrum of possible events.

Of particular concern is that the NRC used regulatory discretion, rather than scientific data, to exclude deliberate intrusion. The petitioner states that recent studies conducted at the behest of the State of Vermont show that, when intrusion is deliberate, the ability of near-surface facilities to properly provide isolation for all of the currently classified LLW streams is questionable.

3.

The petitioner states that because most currently planned LLW facilities are using an engineered structure to isolate the waste, the cost differential between shallow-land burial facilities, assumed in the EIS, and a geologic repository (for high-level w~ste) has significantly changed since promulgation of 10 CFR Part 61.

Because cost considerations were a factor in the development of the waste classification system, a supplemental EIS is needed.

3

Public Comments on the Petition The notice of receipt of petition for rulemaking invited interested persons to submit written comments concerning the petition. The NRC received 14 comment letters. Three comment letters were received from States (two from Vermont), three from private organizations, three from associated industries (including one disposal site operator), three from private individuals, one from a university, and on*e from the Department of Energy.

The comments generally focussed on the main elements of the petition -- revision of the 10 CFR Part 61 waste classification system and the petitioner's rationale for this change.

In addition, *the Commission received responses from the petitioner on many of the points raised by the commenters.

The comments and responses were reviewed and considered in the development of NRC's decision on this petition. These comments and responses are available in the NRC Public Document Room.

Following is a summary of the significant comments.

Four of the commenters supported_ this petition for rulemaking.

They supported the concept of changing the, classification system to restrict the more hazardous components of currently defined LLW, although not necessarily in the same way as proposed in the petition.

One commenter stated that the definitions of LLW and high-level radioactive waste should be changed to essentially require that waste which presents a potential hazard after 100 years be defined as high-level radioactive waste.

Disposal of such newly defined high-level radioactive waste would be the responsibility of the Federal government.

A second commenter believes that the bases for developing the Part 61 classification system are not conservative, and therefore, the petition should 4

be accepted to protect the public from disposal of waste containing long-lived radionuclides.

A third commenter believes that restricting the longevity hazard (long-lived radionuclides) would increase public acceptance of LLW disposal facilities and eliminate program delays.

The fourth commenter, the Vermont Department of Public Service, believes that the classification system should be revised to reclassify non-fuel reactor components as greater than Class C.

It is stated that these components, in Vermont, produce*99 percent of the activity, while comprising less than one-half of one percent of the volume.

These components are easily segregated, and can be stored in spent fuel pools.

The commenter believes the reclassification 11could assist the State processes established by the Low-Level Radioactive Waste Policy Amendments Act of 1985.

11 The other ten commenters believe that granting the petiti.on would not only be unwarranted, as the petitioner has not made a justifiable case for changing the waste classification system, but would also cause significant and unnecessary problems for the disposal of LLW.

Problems cited include major uncertainty and delay while the NRC was developing a new rule, the creation of 11orphan" wastes that would not be acceptable at LLW sites, and the inaccurate use of existing information.

For example, the petitioner refers to a study by Rogers and Associates Engineering Corporation (RAE) prepared for the Vermont Low-Level Radioactive Waste Authority.

Several commenters, including RAE and the Vermont Low-Level Radioactive Waste Authority, commented that the petitioner has incorrectly used the results of this study to assess facility performance and that this study does not support the petitioner's request.

5

The commenters argued that 10 CFR Part 61, and supporting documentation, provide a sound regulatory basis for protection of public health and safety and that the petitioner has not provided any new significant information to justify changing the current rules. These commenters further argued that the petitioner is inappropriately applying requirements in 10 CFR Part 20 to potential intruder exposures at a closed disposal site. They noted that Part 20 limits, and the international recommendations upon which they are based, are regulatory dose limits for routine exposures and are not uniquely pertinent to accidents, inadvertent intrusion, or other hypothetical events.

Some commenters also took exception to the petitioner's goal of protecting against willful, purposeful, or intentional intrusion instead of the inadvertent intruder. They stated that to protect against deliberate misuse of disposed waste would be unnecessarily conservative and unwarranted.

One commenter noted that mining activities on a previously closed LLW disposal site (an activity postulated by the petitioner) would constitute possession of source, byproduct, or special nuclear material and would be regulated under the statutory basis of the Atomic Energy Act of 1954, as amended.

Several commenters were concerned that a revised classification system would generate an "orphan" class of waste.

These wastes would not be accepted at an LLW site and would have to be stored, pending disposal at a high-level waste or other appropriate facility, resulting in additional radiation exposure due to the extra handling and storage required. These commenters stated that the current classification system provides an adequate level of protection of public health and safety.

Other commenters believe that revising the classification system unnecessarily would be extremely disruptive until new regulations were finalized.

Finally, several commenters did not see a need to develop a supplemental EIS because in their view no significant new information has been provided.

Reasons for Denial The NRC is denying the petition for the following reasons:

I. The NRC believes that the petitioner is incorrect in asserting that recommendations by international and national standards organizations (the International Committee on Radiological Protection (ICRP) and the National Council on Radiation Protection and Measurements (NCRP)) on public dose limits applicable to licensee operations should also be applied to hypothetical inadvertent intrusion at a closed LLW facility.

In fact, the ICRP1 distinguishes between limits for the conduct of operations where exposures might be expected and the approach to be taken for "potential exposures,"

which are hypothetical or postulated.

The new 10 CFR Part 20 limit was adopted to impose restrictions on the releases from currently operating licensed facilities or on the ways that current licensees conduct operations.

In contrast to this, the LLW classification system specifically addressed limiting potential exposures to an inadvertent intruder who might hypothetically pursue activities at a closed LLW disposal facility following 1 Annals of the ICRP, ICRP Publication 60, 111990 RecoR111endations of the International Commission on Radiological Protection," Volume 21, pages 25-49 and 70-77.

7

loss of institutional control.

Inadvertent intrusion is a hypothetical exposure scenario evaluated in the EIS to support the concentration limits for classifying radioactive wastes.

It is a separate and different evaluation from the evaluation performed under§ 61.41 to demonstrate protection of the general population from releases of radioactivity.

The NRC's calculations, based on conservative assumptions about intrusion activities, demonstrated that if inadvertent intrusion were to occur, the one or few individuals involved might receive radiation exposure of the order of 200 mrem, well below 500 mrem per year goal selected as the dose rate limitation guideline.

In its final EIS, as noted by the petitioner, the NRC summarized the rationale for retaining the 500 mrem limitation guideline as follows:

"NRC's selection of the 500 mrem limit was based on (1) public opinion gained through the four regional workshops held on the preliminary draft of Part 61; (2) its acceptance by national and international standards organizations (e.g., ICRP) as an acceptable exposure limit for members of the public; and (3) the results of analyses presented in Chapter 4 of the draft EIS.

2 However, a fuller explanation for having selected this dose limitation guideline can be found in the Draft Environmental Impact Statement (DEIS) on 2

Final Environmental Impact Statement on 10 CFR Part 61 "Licensing Requirements for Land Disposal of Radioactive Waste," November 1992, NUREG-0945, Vol. 2, page B-41, (response to issue C-4).

8

10 CFR Part 61 (NUREG-0782, Vol. 1) 3 At that time, three candidate values of different order of magnitude were under consideration; 25 mrem per year, 500 mrem per year, and 5000 mrem per year.

While noting the similarity of the selected value to the then current effective public dose limit in 10 CFR Part 20, the DEIS went on to explain the considerations for selection.*

Selection of the 25 mrem per year value would likely have resulted in considerably more costs, more changes in existing practices and greater reduction in disposal efficiency than the other two candidates. This was cited as "especially important considering the hypothetical nature of the intrusion event." The 5000 mrem per year alternative was seen to involve approximately the same costs and impacts as the 500 mrem per year alternative.

The higher value was considered to potentially result in allowing disposal of larger quantities of long-lived isotopes, which could result in moderately higher intruder hazards extending frir long time periods. Therefore, 500 mrem per year was selected as a general dose rate limitation guideline for the inadvertent intruder.

In the final EIS, the NRC noted that the EPA, in commenting on the DEIS and the proposed 10 CFR Part 61, stated that it was not appropriate to include a dose limit for intrusion in the regulations because the licensee would not be able to monitor or demonstrate compliance with a dose limit related to an event which might occur hundreds of years in the future.

Consequently, the final rule for 10 CFR Part 61 did not include a dose limit for inadvertent 3 Copies of NUREGs may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082.

Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, Va. 22161.

A copy is also available for inspection and/or copying at the NRC Public Document Room, 2120 L Street, NW *. (Lower Level), Washington, DC.

9

intrusion.

However, provisions, including waste classification, were included in the final rule to reduce the likelihood and magnitude of exposures to potential intruders.

\

Finally, as noted above, ICRP distinguishes between limits for the conduct of operations where exposures might be expected and the approach to be taken for "potential exposures," which are hypothetical or postulated.

In the former case, the ICRP proposed imposition of dose limits but in.the latter case recommended that the probability of postulated events or scenarios be con~idered along with their consequences.

The ICRP noted that the initial focus in controlling the consequences of potential or postulated events should be "prevention," that is, by incorporating provisions to reduce the probability of the postulated events which*may lead to radiation exposures.

The existence of multiple controls in the final rule to reduce the likelihood of exposures to postulated inadvertent intruders at closed LLW sites was, and continues to be, wholly consistent with the ICRP perspective. These multiple controls are specifically identified or included in §§ 61.7, 61.12, 61.14, 61.42, 61.52, and 61.59 and are intend~d to prevent inadvertent intrusion and to reduce potential exposure if intrusion were to occur.

For these reasons, the NRC does not believe that the current ICRP or NCRP recommendation that the public dose limit be 100 mrem per year constitutes new information which would warrant modifying these regulations.

The NRC believes that the provisions of 10 CFR Part 61 provide an acceptable level of protection to the public and the inadvertent intruder.

2.

The NRC believes that the petitioner has not provided adequate information to justify.considering "deliberate" intrusion scenarios.

The NRC believes that to protect against deliberate intrusion would be unnecessarily

conservative and unwarranted.

The NRC regulations currently include provisions to protect against intrusion by, for example, requiring government land ownership, records, and the use of markers.

In order to deliberately intrude into the LLW site, an individual will have to break the law and overlook the hazard.

In the development of 10 CFR Part 91, the NRC stated,

"..* it would appear to be difficult to establish regulations designed to protect a future individual who recognizes a hazard but then chooses to ignore the hazard. "

4 The NRC also believes the likelihood of deliberate intrusion is very small. Deliberate intruders would have to ignore the hazard information on markers.

The future value of LLW as a material can not be accurately assessed, but the NRC believes that its value would be unlikely to warrant illegal actions that in themselves would be hazardous, and would require a significant amount of time and effort. If the value of LLW were to become significant, then it is likely that responsible institutions would assess risks and would make rational decisions regarding use or control of the site.

Although the NRC is not relying on institutional controls beyond 100 years, the NRC believes that relevant records will be preserved, and remain accessible for hundreds of years after closure. This would reduce the likelihood and level of exposure of inadvertent or deliberate intrusion~

For example, if intrusion did not occur until 500 years after closure, the exposure would be limited to a few mrem as calculated in the EIS.

The NRC, therefore, believes that its current treatment of intrusion continues to reflect a rational and acceptable approach.

The NRC current regulations 4 Draft Environmental Impact Statement on 10 CFR Part 61 "Licensing Requirements for Land Disposal of Radioactive Waste," September 1981, NUREG-0782, Volume 2, page 4-3.

11

provide reasonable assurance of protection against an inadvertent intruder.

And while not directly protecting against the deliberate intruder, the NRC believes that such an intrusion is unlikely to happen, therefore, the risk is very small.

3. The NRC believes that the petitioner's request for a supplemental EIS, due to increased costs of current disposal plans (including engineered structures), is not valid for several reasons. First, the NRC considered a range of different disposal options and costs, including the use of engineered barriers and structures, in the development of 10 CFR Part 61.

Shallow-land burial, as had been practiced at commercial disposal sites, was considered as the base case for analysis.

Two improved shallow-land disposal alternatives were also considered.

The use of engineered barriers was anticipated and included in cost impact analyses as the upper bound alternative.* Second, although the petitioner is ~orrect in stating that LLW disposal costs for new facilities have significantly increased since promulgation of the rule, so have the expected costs for other potential methods of waste disposal, including geologic disposal, referred to by the petitioner. Third, as noted by one of the commenters, much of the increased cost for new LLW disposal facilities is independent of the disposal technology used.

That is, the increased costs for site characterization, licensing, public involvement, and administration for all disposal sites would tend to minimize long-term cost differentials between shallow-land burial with and without engineered structures. The petitioner is erroneously asserting that costs were a prime consideration in the selection of the waste classification system.

Although costs were considered in the EIS, the NRC principally looked to identify and

. 12

implement improvements in the disposal of LLW, such as the development of the waste classification system, to help ensure adequate protection of the public health and safety and the environment.

The costs of developing and constructing a facility were not the prime consideration.

In addition to the three reasons above, the NRC has also qualitatively considered the effect of imposing a classification system as indicated in the petition. The benefit would be to reduce the potential radiation exposure of a very small number of individuals after the end of the institutional control period. A realistic estimate of the benefit, as shown in the Els, would be a 100 mrem reduction in dose (from 200 mrem to 100 mrem per year) to one or a few individuals per site, 100 years after closure.

To maximize the benefit, the intrusion would need to occur relatively shortly after the end of the institutional control period, since the 100 mrem difference between the existing classification system and that suggested by the petitioner becomes smaller with time.

As discussed earlier, as the time period increases beyond 100 years to 500 years, potential exposures reduce to only a few mrem for the existing classification system.

Not only are the perceived benefits exceedingly small, but if a revised classification system were imposed, the NRC believes that it would result in significant negative impacts.

First, it would take years to revise the waste classification regulations. During this time, current efforts by the States and compact organizations to develop LLW facilities could be severely impacted as they would not know what waste would be acceptable in a LLW facility.

Second, as provided in the Low-Level Radioactive Waste Policy Amendments Act of 1985, States will continue to be responsible to provide for disposal of waste that is classified A, B, and C under the existing classification system 13

in 10 CFR Part 61.

If a new classification system were develop~d that resulted in some currently acceptable waste being unacceptable for a LLW facility, either Congressional action would be necessary to change the Act to make the Federal Government responsible for the waste or the States would be forced to develop alternative methods to dispose of this new class of waste.

And third, additional operational exposures could be expected to occur as specific waste would need to be segregated, handled, treated, stored, and transported while awaiting alternative disposal facilities.

In sum, no new significant information has been provided by the petitioner that would call into question the basis for, or conclusion of, the final EIS.

On the other hand, in a qualitative analysis, it is clear that granting the petition would result in significant negative impacts relative to the small potential reduction in intruder exposures. Therefore, a supplemental EIS is not needed.

For reasons cited in this document, the NRC denies the petition.

Dated at Rockville, Maryland, this ~ 4 day of 4.,,.,/

, 1994.

For the Nuclear Regulatory Commission.

r for Operations~

14

STATE OF VERMONT DEPARTMENT OF PUBLIC SERVICE 120 ST ATE STREET MONTPELIER, VT 05620-2601 TEL.: (802) 828-2811 FAX: (802) 828-2342 TTYffDD (VT): 1-800-734-8390 February 25, 1994 Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attn:

Docketing and Service Branch

Subject:

Petition to NRC (Docket No. PRM-61-2) by New England Coalition on Nuclear Pollution for Rulemaking to Modify 10CFR61.55 Waste Classification Rules The following are comments on the petition for rulemaking regarding waste classification rules.

The petition deserves favorable consideration, at least in part, for the reasons stated below.

1.

The petition urges re-evaluation of the environmental impact of waste classification based on new information.

2.

From work performed by the Vermont Low-Level Radioactive Waste Authority, a single category of nuclear power plant waste results in 99% of the radioactivity in Vermont waste, while comprising less than one-half of one percent of the volume.

Specifically, this category is estimated to include 417,000 curies of a total of 421,000 curies.

It consists of an estimated 872 cubic feet of a total of 446,924 cubic feet.

This category is identified as non-fuel reactor components and includes used control rods and reactor monitors.

These components are easily able to be segregated.

Non-fuel reactor components are classified as Class c.

3.

A likely result of re-evaluation of the environmental impact of waste classification would be reclassification of non-fuel reactor components as "greater than Class C. 11 This would be a highly reasonable result for the following reasons:

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The additional volume is a small increment to the waste volume already under federal jurisdiction.

b.

The components are easily able to be segregated.

c.

Most non-fuel reactor components remain in the reactor until decommissioning.

Components removed during operation would be stored in spent fuel pools.

While taking some additional space, these components are no greater storage hazard than the spent fuel itself.

d.

The removal of such a great amount of radioactivity from the states' waste streams for such a small volume could assist the state processes established by the Low-Level Radioactive Waste Policy Amendments Act of 1985.

4.

It appears clear from the deliberations on the Low-Level Radioactive Waste Policy Amendments Act of 1985 that the Congress has the expectation that NRC has the authority to review its waste classification regulations as it deems advisable.

It is urged that favorable consideration be given to the petition for rulemaking toward the result that non-fuel reactor components are reclassified as "greater than C."

Sincerely,

~~~

Commissioner State Liaison Officer

New England Coalition on Box 545, Brattleboro, Vermont 05302 Mark Haisfield Office of Nuclear Regulatory Response U.S. Nuclear Regulatory Commission Washington, DC 20555

Dear Mark Haisfield:

Nuclear Pollution, Inc.

00Jf\~~1tone (802) 257-0336 January 5, 1993

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1-: C51 F (<.321~<.U Thank you for sending the DOE's additional comments on our petition RPM-61-2.

They certainly make up in quantity what they lack in quality!

Some of these comments renew charges made in the DOE's previous letter and those of other commenters to whom we have already responded. Unless I have new points to raise, I will allow my earlier comments to stand.

First, DOE begins by asserting that there are three "premises" for our petition. The first, concerning Part 20 will be discussed at length below. The second premise is simply wrong: our petition never mentions the increase in LLW disposal costs, and does not recom-mend sending any waste to a repository. We claim that the original EIS used SLB rather than engineered disposal methods as the economic base case, and that in so doing, the cost dif-ference between these methods and "geologic" disposal (below 30 meters from the earth's surface) was exaggerated. These are very different propositions, to be explored in more detail below.

Finally, we do not consider the RAE "Identification" study a "premise" for our peti-tion, as noted in Halladay 1) in our October 26 comments. We also responded to Bob Baird's comments extensively, and will not revisit these issues.

Turning to the DOE's specific comments, I will use their numbering system:

1. 1) The reason the change in Part 20 necessitates reexamining 61.55 is that this section explic-itly utilized Part 20 as its basis, as the petition states and documents with extensive footnotes.

For more comments, see #2.

1. 2) DOE's analysis here essentially says this: NRC did not really mean what it said in the FEIS. This confused petitioners (us) and presumably everyone else except DOE. Specifically, when NRC says "NRC's selection of the 500 mrem limit was based on... 2) its acceptance by national and international standards orfanizations," as well as "3) the results of analyses pre-sented in Chapter 4 of the draft EIS," NRC really didn't know what it was talking about.

In our view, NRC did mean exactly what it said (in more than one place). Because we also recognize that NRC did not "adopt" Part 20 as it could have, there is no reason to analyze each of DOE' s speculative claims about what would have been the case if the NRC had chosen to adopt Part 20.

The facts are simple. The analysis for the original EIS was based on figures which were not pulled out of the air, but specifically chosen for various reasons. Some of these figures

1. FEIS, Vol 2. B-41.

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have now changed. Our petition suggests that the reasonable (and lawful) course is to recon-sider the EIS' s reasoning in light of this change.

The change in Part 20 is the legal trigger for this reconsideration, but the underlying rationale is really more basic. The reason that Part 20, NCRP and ICRP standards have changed is that there is new scientific information about radiation.

DOE refers to a "general consensus that it [500 mrem] constituted a reasonable limit."

(p.5) It is quite possible that any consensus based on the old information, will have changed because more recent information is now available. If DOE really wants to find out, they should hold public workshops around the country and ask.

1. 3) We do not discuss "an optional 25-millirem limit for inadvertent intrusion as if costs were the only objection.... " Indeed, the petition specifically quotes three reasons given by NRC (page 7). Cost was the first of these. The rest of this comment is a statement of DOE's opin-ion as to what the limit should be, and is not germane at present.

1. 4) DOE argues that while we are right, we are wrong. They admit that "it is strictly true that no Part 60 licenses have yet been issued." They also admit that the existing sites "prob-ably meet the Part 61 siting requirements." (emphasis added) But DOE cannot prove this any more than we can disprove it, because no one really knows for sure. DOE does not mention that the Beatty site is now closed, and Barnwell expects to close in June, 1994. The only exist-ing site which would be effected is Richland.

1. 5) DOE claims that we misinterpreted §20.1001-2 because "The sections have nothing to do with the specific issue of inadvertent intrusion, and in fact, nowhere in Part 20 is the issue of inadvertent intruder [sic] addressed." (p.7) We never claimed otherwise. DOE further claims that "The word "disposal," as used in these sections, is not meant to apply only to 10 CFR Part 61." (p. 7, emphasis added) We never suggested anything different. Finally, we agree that NRC did not directly refer to Part 20 in §61.42 as it did in §61.43. We never suggested otherwise. This comment addresses issues not raised in our petition. It is therefore irrelevant.

1. 6) DOE correctly states NRC's position in the EIS. For the reasons we extensively articulat-e eel in the petition and in previous comments, we do not agree with this position.

1. 7) DOE states in footnote 3, "Although the petitioner emphasizes that most future LLW disposal facility designs would incorporate engineered concrete disposal structures, the peti-tioner discusses these designs in the petition as if they were no different, if not worse, than shallow land burial." Nonsense. We never said anything like this, nor did we imply it. We have no idea where DOE got this impression. It is a total misrepresentation of our views.

DOE makes two main points here. First: "If NRC did develop a waste classification system for engineered disposal methods... one would expect higher concentration limits for a number of radionuclides." (p.9) 1) We note that the statement is, of necessity, purely hy-pothetical. 2) The statement would be correct for long-lived radionuclides only if the NRC were willing to give much longer "credit" for engineered designs than the several hundred years claimed by the designers. 3) Because the long-lived isotopes will last longer than the engineering, 2 we doubt that NRC would do this, and we doubt even more that there would be

2. Peak doses for several of these isotopes come well into the multi-thousand year period.

2

any rational basis to do so. All of this is speculative.

Second, DOE suggests that SLB is not much cheaper than engineered disposal methods.

Since this is discussed in more detail below, we will pick up the point in #9 below.

1. 8) There is nothing in this comment which is germane to our petition. We note, however, that DOE chose to quote only those commenters who wished to extend the control period.

There were others who sought to shorten it; the debate was not one-sided.

1. 9) The DOE's cost analyses are disingenuous at the very best. There is a fairly extensive literature comparing the (admittedly hypothetical) costs of a variety of low-level radioactive waste disposal facility designs.

Indeed, the most extensively cited reference was prepared for DOE itself: Alternative Concepts for Low-Level Radioactive Waste Disposal (DOE/LLW-60T). DOE found that a shallow land disposal facility would cost $196 million versus $294-434 million for engineered facilities. (Table S-1) It is somewhat surprising to see DOE ignoring its own study.

DOE argues that "the use of engineered concrete structures" is "not likely" to "signifi-cantly add(ing) to the cost of LLW disposal," when compared to the shallow land methods utilized as the cost basis for the Part 61 EIS. In view of the data in its own study, this presum-ably means that the difference between $196 million and $434 million, i.e. $238 million, is not "significant." But DOE also argues that a purported increase of $140 million for disposal of the hypothetical 12 % of the waste mentioned in our petition would "significantly" increase costs. DOE can't have it both ways.

Moreover, all of the DOE's calculations here are off-the-cuff, based on nothing wha-tever. Were no cost literature available, this might be an acceptable way to calculate costs.

There are, however, numerous studies, and they do not bear out any of DOE's claims. We have already cited DOE/LLW-60T and, in footnote 37 of our petition, a study by SENES Corp. for AECL. NRC's study, Evaluation of Alternative Methods for the Disposal of Low-Level Radioactive Wastes, NUREG/CR-0680 also found that engineered structures significant-ly added to costs: $501- $536 million for eastern US vault structures versus $84 million for SLB. Mined cavity disposal was actually cheaper than engineered vaults in this study. (Table 4.3) Rogers and Associates has done numerous studies for a variety of states; none of them support DOE's claim.

This is not the place for a literature review. DOE's claims are based solely on hot air and speculation. Ours are documented.

One point should be noted. Our petition does not advocate disposal in either of DOE's repositories. The costs of both Yucca Mountain and WIPP are substantially higher than the literature estimates for a geologic LLW facility. DOE' s calculations are based on the costs of the DOE repositories, and are not indicative of other geologic disposal options.

The petition's original point remains valid. According to every study we have seen, and we might add, according to common sense, SLB is the cheapest method of disposal. It is ipso facto cheaper than any of the engineered methods being contemplated by the eastern sited states. Therefore, the difference in costs between SLB and geologic disposal is greater than the difference between any of these other methods and mines. This is a simple, documented, and, in any case, almost self-evident proposition.

3

1. 10) We gather that DOE is trying to suggest that lowering the amount of waste in a facility could raise the per cubic foot charge for the rest of the waste to be disposed. The studies we have seen, including the studies cited above do not support this argument. Once again, DOE is engaged in ad hoc speculation with no documented basis.

1. 10 - 12) We never suggested that an NRC rulemaking would be free. Fortunately, NEPA does not require EIS' s or supplemental EIS' s only when they are free. There are costs asso-ciated with a cleaner and healthier environment, just as there are costs (not discussed by DOE) in making people sick, and in contaminating large areas of land and water (an activity in which DOE has a great deal of experience). GAO estimates that DOE will need to spend well over

$100 billion to clean up the messes it created by "saving" taxpayers money. Sometimes cheap and even free is not inexpensive.

1. 13) We do not cite "the increasing costs of LLW disposal as justification for the petition's proposals" or for anything else. Our point concerns the difference in costs as stated in the petition and in #9 above. The rest of this argllment addresses a straw man which is irrelevant to our petition.

1. 14) DOE argues that because intrusion into a LLW disposal facility would be illegal, it is therefore "an illogical scenario." This postulate is repeated several times throughout DOE's comments, as though it were a stunning insight into human behavior.

DOE seems to believe that once laws are written, they are automatically obeyed. As of 1980, the latest year for which I have figures, this theory leaves a mere 13,295,000 criminal offenses unaccounted for. 3 We suggest that a scenario which is repeated over 13 million times in a year may be "illogical," but it is assuredly not improbable or, more to the point here, "non-credible." It is fortunate indeed that the Justice Department does not share DOE's novel theories about law and crime.

1. 15) Our petition will have no consequence as to the responsibility for LLW. Unless Congress amends the Low-Level Radioactive Waste Policy Amendments Act of 1985, the states will be responsible for all of what is currently classified as LLW, regardless of any future change in the Part 61 classification system, and regardless of what "States and Compacts would feel."

(p.17)

1. 16) DOE's hypothetical analysis is contradicted by the EIS. As we noted on page 7 (and footnote 31) of our petition, lowering the intruder dose limit (to 25 mrem) did make a dif-ference: specifically, it slightly increased the amounts of waste which would have been consid-ered unacceptable for near-surface disposal. If DOE is arguing for a different methodology than that used in the EIS, it should petition NRC for a rulemaking to change it.

1. 17) As we have pointed out in earlier comments, our petition does not assume that revising the EIS will result in additional wastes being found unsuitable. We suggested that this might occur, and we hope that it will.

It was not "conservative" for the NRC to assume that SLB would be used, since its regulations require nothing more. California and Washington both intend to use SLB. The fact that other facilities will not use this method is due not to any conservatism on NRC' s part,

3. Statistical Abstract of the United States: 1981, p. 173, Table No. 293.

4

but to decisions in the sited states to prohibit its use by state initiatives.

The argument that the limits could be raised because of engineered structures entirely ignores the issue of time. Engineered structures will fail before long-lived nuclides have a chance to decay. See #7 above.

We cannot enter into a nuclide by nuclide debate here. If the rulemaking we requested takes place, there will be plenty of time for that.

1. 18) We note, first of all, that our "To whom it may concern" letter was included with the petition due to a clerical error on our part.

Second, the fact that there is no "federal mandate to consider intrusion" is irrelevant.

NRC did consider intrusion, and based one of its four performance objectives on it. The NRC is mandated to protect the public's health and safety, which is why it considers intruder protec-tion. What Congress decided to do in a law about HLW has no bearing here.

Third, the New England Coalition on Nuclear Pollution did consider, and reject, less conservative assumptions. So did NRC. If DOE wants to push the point, it can do so in its petition for rulemaking. What the NRC could have considered is purely speculative and not relevant.

Fourth, we enjoyed DOE's scenario about intergalactic terrorists; it's definitely the high point of these comments. We note the substantial difference between events which repre-sent imaginative constructs and happenings which (as our petition noted) have already oc-curred. To our knowledge, there have been no acts of intergalactic terrorism to date. There are over 10 million offenses against the United States every year. To equate these two scenarios as "illogical" and therefore not "credible" is neither "logical" nor "credible."

Fifth, what the RAE study showed is simply this: if more conservative assumptions are used, different results ensue. Put differently, the study shows that the assumptions used have an effect on the results. This is not really a very surprising conclusion.

1. 19) DOE is correct that we made no effort to quantify what constitutes a "large" quantity of stainless steel. We are well aware that the amount of steel in a LLW facility is likely to be small relative to current levels of production. Our point, which we hesitate to belabor, was that this material has only been produced for a bit more than 75 years, and already some scien-tists (see footnote 74 in the petition) are concerned that we may be exhausting our resources of the component materials. Centuries from now, if the component resources are exhausted, then existing metal could become the only source (via recycling) of these resources.

Our real point is much broader in any case. Materials which have no value today may suddenly become enormously important to a future civilization. Similarly, materials which we consider vital may have little value 500 years from now. Centuries ago, wars were fought over spices.

The value of any material is culture-bound. Cultures change. Therefore, in many instances, values change. With the change in values comes a change in the possible motiva-tions for entry into a LLW facility. We do not pretend to know which of the materials in a LLW facility will have economic value 500 years from now. Both NRC and DOE assume that they do know. We believe that this assumption is naive, and quite possibly, wrong.

5

1. 20) Having no first hand knowledge of the Juarez incident, we are perfectly willing to take DOE's word for it that the material involved was a sealed source and that the individuals involved were not unwitting.

Having cleared up the details, our point remains valid, indeed underscored. The incid-ent shows that there are individuals in the world who are willing to violate laws, however "illogically" (see #14 above) and steal radioactive materials. Knowingly or otherwise, the material was circulated to unwitting individuals whose "exposures were regrettably high."

This is precisely why an agency with a public health and safety mandate must consider issues of intrusion into a facility housing toxic materials. We never suggested that the incident caused "international catastrophe" or "upheavals in society." (p. 25)

1. 21) It would be foolish indeed to say that terrorist use of radioactive waste "would never occur." During 1992, there were repeated reports of Western European authorities discovering radioactive materials smuggled out of the Eastern bloc. In some cases, the materials were sufficiently "hot" to cause symptom~ of radiation sicl.ness in the smugglers.

We don't know what constitutes "most terrorist activities" in DOE's eyes, but we do know that attempts to create a black market in radioactive materials have existed and still exist in the world. Has the DOE ever heard of Iraq?! The "old canard" just happens to be true.

1. 22) DOE argues that the state of the world 100 years ago is "irrelevant" because "time only moves forward." We assume that this is a philosophical statement about history: namely, that over time, civilization only progresses. We remind the DOE of some examples which, on their face, constitute counterexamples to this theory: the fall of the Roman Empire, the Dark Ages, World War I, Nazi Germany, Somalia, post-Communist Yugoslavia, etc.

This is no place for a disquisition on the philosophy of history. It is sufficient to assert that there are few knowledgeable cultural historians or philosophers who would be willing to accept DOE's simplistic thesis at face value. Civilizations expand and contract; discoveries are made, and lost. The "reversion" of future societies does not depend only on "cataclysm."

Societies change for many, many reasons, and in a wide variety of ways. In short, "There are more things in heaven and earth... than are dreamt of in [DOE's] philosophy."

In any case, we do not postulate a "more primitive and ignorant lifestyle." We postu-late that a different lifestyle, with different values, different bodies of knowledge, and different social institutions is not only possible, it is probable over a 500 year span. Unless of course, one subscribes to the "end of history" thesis published just as eastern Europe was in the pro-cess of coming apart at the seams.

Once again, we thank you for the opportunity to respond to these comments. Since there is nothing directly germane to our petition in the documents DOE attached to its com-ments, we will not respond to them here. If more comments are received, we will appreciate receiving them.

srr1.~1u J f n tlf3'f'e7 erg 6

DOCKET NUMBER PET TION RULE PRM b I -2 Department of ln~~~R 317'13 Washington, DC 20585

, '>JliL ii USNRC NOV 2 4 1992

• 92 OEC -1 A11 :S9 Samuel L. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 (WF, 16G15)

Dear Mr. Chilk:

This is in further response to a July 23, 1992, Federal Register Notice (57 FR 32743) requesting public comment on a petition for rulemaking filed by the New England Coalition on Nuclear Pollution (Docket PRM-61-2).

In our initial (September 21, 1992) response to the petition, we recommended that NRC deny the petition.

We noted that the petition contained errors as well as many unsubstantiated or misleading claims, opinions, and extrapolations.

We indicated that we would provide additional comments at a later date.

Attached are additional comments on the petition based on a preliminary review.

We have also provided preliminary comments on a report prepared by Rogers and Associates Engineering Corporation (RAE) that was cited by the petitioner.

The RAE report is deliberately very conservative because it is meant as a screening analysis, rather than an analysis of a specific disposal facility or site.

Nonetheless, we have identified a number of concerns with the report.

Our review, however, was hampered because the report provides few details about analysis assumptions and other critical information.

We again recommend that NRC deny the petition.

As a separate matter, we also recommend that NRC obtain from RAE the details of the report analysis.

However, NRC need not delay action on the petition while these details are being collected.

Mr. G. Roles of my staff may be contacted if you have questions.

Attachments z~

Raymond F. Pelletier Dire ctor Office of Environmental Guidance

Preliminary Comments on Petition by New England Coalition on Nuclear Pollution The petition should be rejected.

It 6ontains many unsubstantiated claims, opinions, and extrapolations, and in many cases is either erroneous or misleading.

The petition essentially rests on the following premises:

1.

A change to 10 CFR Part 20 radiation protection limits necessitates a corresponding change to the Part 61 intruder dose limits.

2.

Because the costs of LLW disposal have increased, the cost-benefit analysis compared to repository disposal would shift in favor of sending more waste to a repository.

3.

A report prepared by the Rogers and Associates Engineering Corporation (RAE) for the State of Vermont indicates that new and more conservative intruder scenarios should be considered, including a deliberate intrusion scenario.

The petition requests that NRC prepare a supplement to the Part 61 environmental impact statement (EIS) and reanalyze the Part 61 waste classification system and other requirements.

But the petition cannot withstand even a cursory scrutiny.

First, the petition is erroneous about the relationship of 10 CFR Part 20, and its recent revisions, to LLW disposal.

The petition misrepresents the development of the Part 61 regulation, and the basis for the Part 61 waste classification system.

Regarding cost analyses, the petition provides no facts or cost analyses to justify its claim.

But our analysis indicates that a change in the Part 61 regulation as advocated by the petitioner could be costly for all waste generators.

Regarding technical analyses, the RAE report cited by the petitioner has not been thoroughly peer-reviewed, certainly not to the degree that the NRC rulemaking and supporting analyses were reviewed since their publication a decade ago.

The report is not generally available; nor are the details of the analyses contained in the report.

(The report provides little detailed information other than a sketchy outline of the scenarios considered, plus the results.)

Without such a peer review, and without disclosure of all details of the analyses, the petition should be rejected as lacking technical justification.

In any case, in a September 21, 1992, letter to NRC, an author of the cited RAE report has indicated that the report is deliberately

2 extremely conservative.

(It is intended essentially as a screening analysis (Ref. 1).)

The RAE author has also rejected the petitioner's assertion that the RAE report supports the petition. 1 Our own preliminary analysis of the RAE report indicates a number of problems, as indicated in an attachment.

We have found that the conclusions in the report, rather than providing insights about wastes "containing significant quantities of long-lived radionuclides," are largely artifacts of the grossly conservative assumptions used for the report analysis.

Regarding the need to consider deliberate intrusion, as advocated by the petitioner and addressed in the RAE report, we note that the intrusion scenario advocated -- that of a miner recovering radioactive material for reuse -- would constitute possession of source, byproduct, or special nuclear material pursuant to the Atomic Energy Act of 1954, as amended.

Therefore, the activities depicted could not legally occur without authorization pursuant to this Act.

A deliberate intruder would constitute a radiation worker to which regulatory standards and safeguards would apply.

Thus, it would be neither appropriate nor necessary for NRC to consider deliberate intrusion as part of establishing a radioactive waste disposal classification system.

Regarding the preparation of a supplemental EIS, as requested by the petitioner, that action is not necessary unless the impacts from a decision change substantially from the original basis.

Because the petitioner has failed to demonstrate the existence of a substantial change, the petition should be rejected.

General Comments Many of the issues raised in the petition are multidimensional, combining techncial, policy, and legal matters.

Because of this, and the way in which the petition is written, we find it difficult to succinctly organize our comments.

Based on a preliminary review of the petition, we have organized our comments into the following general groups:

regulatory issues (including NRC's development of the Part 61 regulation), cost issues, legal issues, technical issues, and miscellaneous issues.

Unfortunately, some overlap among these issues cannot be avoided.

10n page 1 of the petition, the petitioner claims that New intrusion scenarios should be analyzed, since the EIS's choice of three scenarios cannot withstand careful scrutiny."

The scenarios in the Part 61 EIS have already withstood thorough review over the past 10 years.

Certainly greater and more exacting scrutiny has been provided to the EIS scenarios and analyses than to those in the RAE report.

3 Regulatory issues

1.

Contrary to the petitioner"s claim, NRC's recent adoption of an annual 100 millirem limit in 10 CFR Part 20 does not require NRC's adoption of a similar limit for inadvertent intrusion into a low-level waste disposal facility.

The Part 20 limits, and the international recommendations upon which the Part 20 limits are based, are to be applied to direct radiation and routine releases of radioactive material from an operating facility, not to accidents, inadvertent intrusion, or other hypothetical events at a LLW disposal facility.

For example, Section 20.1301(a) of Part 20 states, "Each licensee shall conduct operations... " [emphasis added]

Further, Section 20.1301(c) states, "A licensee or license applicant may apply for prior NRC authorization to operate up to an annual dose limit for an individual member of the public of 0.5 rem (5 mSv)." [emphasis added]

2.

On page 5 of the petition, the petitioner argues that because NRC references the International Commission on Radiological Protection (ICRP) as part of its justification for the intruder dose limit, NRC should adopt a lower dose limit in compliance with new ICRP recommendations.

This argument is not valid, although perhaps there is an explanation for the petitioner's confusion.

A relatively detailed discussion of the reasoning behind selection of the dose limit for intrusion is provided in Chapter 4 of the draft EIS.

Unfortunately, when NRC tried to summarize all the details of its rationale in a few sentences, as in the particular section of the final EIS cited by the petitioner, NRC used imprecise language about how it actually decided on the 500-mrem limit.

NRC did not adopt ICRP recommendations as the basis for the waste classification dose limit.

Rather, NRC cited the 500-mrem limit for normal release as then recommended by the ICRP and others for purposes of comparison.

If NRC had adopted ICRP recommendations as the basis for the Part 61 classification system, then NRC would have had to take the position that inadvertent intrusion constituted or was equivalent to a routine release of radioactive material from a nuclear facility.

(The cited ICRP recommendations only apply to routine releases.)

NRC rightfully did not do this.

In addition, NRC would have had to require that protection of an inadvertent intruder adhered to the ICRP's three recommended principles of radiation protection:

(a) Justification.

(No practice should be adopted unless its introduction produces a positive net benefit.)

4 (b) Optimization of protection.

(Exposures should be kept as low as is reasonably achievable, economic and social factors taken into account.)

(c) Individual dose limits.

(Doses incurred by individuals, either in the course of their normal lives as members of the public or as a result of their occupation, should not exceed the dose limits recommended for the appropriate circumstances by the ICRP.)

However, the Part 61 performance objective for intrusion did not incorporate these recommendations.

The approach NRC took was to examine the dose limits that were then in use for various applications, and then considered three dose guidelines for analysis in the draft Part 61 environmental impact statement (EIS) (Ref. 2).

The phrase "dose guidelines" was used deliberately in the draft EIS to indicate that the levels of dose that were being considered had been abstracted from their original application.

The dose guidelines were those in the range of 25 millirems/yr based on comparison with limits in 40 CFR Part 190, 500 millirems/yr based on comparison with limits recommended by ICRP and others, and then in use as a basis for the release limits in 10 CFR Part 20, and 5,000 millirems/yr based on comparison with allowable occupational radiation exposure levels.

In the draft EIS, a dose guideline in the range of the 500-millirem/yr (whole body) was determined to be the most reasonable alternative.

However, NRC believed that the selection of a dose guideline for intrusion was more a matter of judgement than of technical analyses.

As stated in Section 4.5.1 of the draft Part 61 EIS A dose guideline of 500 mrem/year to the whole body would therefore appear to be acceptable for protection of an inadvertent intruder.

Such potential intrusion may never occur and if it should occur, would only be expected to involve local exposure of a few individuals.

The use of a 500 mrem/year dose guideline has also been extensively discussed at the four regional workshops held on LLW disposal.

Comments on this guideline were also received on the preliminary draft regulation 10 CFR 61 which was made available for public comment.

The workshops and public comments are discussed in Appendix c.

Broad acceptance of this guideline was generally expressed in these workshops and comments.

Thus, NRC's adoption of a 500 millirem/yr dose guideline for

5 development of its waste classification system was primarily based on a general concensus that it constituted a reasonable limit considering the purposes for which it was to be used.

Despite any changes to Part 20 or ICRP,

recommendations, there has been no indication that the above consensus has changed.

It should also be recalled that many commenters on the proposed Part 61 rule thought that a 500 mrem/year dose guidline was too low, a fact ignored by the petitioner.

As stated on page B-41 of the final Part 61 EIS (Ref. 3) --

The majority of the commenters, including Argonne National Laboraory, the Union Carbide Corporation and the U.S. Department of Energy, Oswald Anders, the LLW Management Program Review Committee, and the Carolina Power and Light Company, in their comments about considering probability of occurrence, expressed concern about weighting too heavily inadvertent intrusion in determining disposal requirements for waste.

Several expressed concern about the basis for the 500 mrem limit and some recommended that a higher dose limit (e.g., 5000 mrem or 25 rem) should be applied.

Furthermore, on page B-40 of the final EIS, NRC stated that the performance objective for intruder protection "is to keep potential exposures to an inadvertent intruder to a dose limit that is not unreasonably high given the accidental and hypothetical nature of the event."

Despite any changes to Part 20 or ICRP recommendations, a 500 mrem/year dose guideline remains a dose level that is not unreasonably high, particularly considering the small numbers of individuals likely to be exposed to this level of dose from any intrusion event.

3.

The petitioner discusses an optional 25-millirem limit for inadvertent intrusion as if costs were the only objection against its adoption.

However, one must realize that a variety of institutional controls would be imposed to minimize the likelihood and extent of inadvertent intrusion, which makes intrusion more in keeping with an accident situation.

A 25-millirem limit is inappropriate as a limit for intrusion because of its original derivation and use, and its use in Part 61 in Section 61.41.

A 25-millirem/year standard was originally promulgated by the Environmental Protection Agency (EPA) in 40 CFR Part 190 to limit possible public doses from release of radioactive isotopes from normal operations of nuclear fuel cycle facilities.

It does not apply to accident conditions at these facilities.

A 25-millirem/year requirement was subsequently adopted by NRC to control possible doses from possible releases of radioactive

6 material from a LLW disposal facility over the long term, and again does not pertain to accident situations at either an operating or closed disposal facility.

2

4.

The petitioner argues that because no disposal facility has yet been licensed under Part 61, NRC should completely reconsider the waste classification system in Part 61.

This argument is without foundation.

Although it is strictly true that no Part 61 licenses have yet been issued, it is also completely misleading.

All technical requirements in 10 CFR Part 61 (either as Part 61 requirements or compatible Agreement State requirements) have been applied to all operating LLW disposal facilities since the Part 61 waste classification system went into effect on December 27, 1983.

This includes the Barnwell disposal facility which is located well east of the Mississippi River.

Waste has been characterized and classified in compliance with Part 61, and disposal facilities have been designed and operated in general compliance with Part 61.

The Part 61 performance objectives apply.

The only significant reason why these operating disposal facilities have not been issued Part 61 (or equivalent Agreement State) licenses is because the facilities were sited before Part 61 was promulgated (although all sites probably meet the Part 61 siting requirements) and may contain some radioactive wastes in concentrations exceeding the Part 61 waste classification limits.

Thus, for all practical purposes Part 61 is being implemented today.

Any changes to the Part 61 classification system would disrupt current as well as future LLW management activities.

5.

On page 6 of the petition, the petitioner makes an erroneous statement that because the new 10 CFR 20.1002 mentions waste disposal pursuant to a number of parts of NRC's regulations, this means that the "new 100 millirem limit is intended to apply to low-level radioactive waste disposal," and that there is "no question that the basis for the 500 millirem limit for protection of inadvertent intruders has evaporated, and that more recent technical guidance clearly indicates that the proper figure should now be 100 millirem."

In addition, in footnote 27 on the same page, the petitioner cites 10 CFR 20.l00l(b).

Because this 2In any case, an annual 25-millirem limit would be simply impractical.

Natural soil would fail this limit through an intruder-farming or homesteader scenario, because natural radioactive isotopes in average soil results in a dose of 30-40 mrem/yr.

7 paragraph uses the word "disposal," the petitioner-erroneously suggests that this also provides justification that the new Part 20 limits should apply to inadvertent intrusion.

The petitioner has misinterpreted Sections 20.1001 and 20.1002.

The sections have nothing to do with the specific issue of inadvertent intrusion, and in fact, nowhere in Part 20 is the issue of inadvertent intruder addressed.

The purpose of the cited sections is to indicate that the Part 20 requirements are generally applicable to all NRC licensees.

The word "disposal," as used in these sections, is not meant to apply only to 10 CFR Part 61.

In the context of Part 20, it can apply to a large number of licensee actions, including those actions listed in Section 20.2001.

"Disposal" can include transfer to an authorized recipient, decay in storage, release into effluents, disposal on-site pursuant to section 20.2002, or disposal of some wastes containing small quantities of C-14 or H-3 by less restrictive means.

Regarding the Part 61 regulation, the application of the Part 20 requirements to a disposal facility licensed under the Part 61 regulation is addressed in Section 61.43.

In this section, the application of Part 20 is properly limited to operations at the disposal facility -- that is, Part 20 applies to protection of workers and off-site individuals during disposal facility operations, the same as it applies to any licensed facility.

However, Section 61.43 applies a more conservative standard for releases of radioactive material as effluents.

It states that "Operations at the land disposal faclity must be conducted in compliance with the standards for radiation protection set out in Part 20 of this chapter, except for releases from the land disposal facility, which shall be governed by paragraph 61.41 of this part."

Section 61.42 is the performance objective in Part 61 that addresses protection of an inadvertent intruder.

The final Section 61.42 lacks a reference to Part 20.

Section 61.42 in the proposed Part 61 rule also lacked a reference to Part

20.

It did include a proposed requirement to limit possible whole body radiation doses to an inadvertent intruder to 500 millirems per year.

This requirement was deleted from the final Section 61.42 not because NRC believed that an annual dose in the range of 500 millirem limit was the wrong limit, but because NRC recognized that it was unneeded in the context of licensing disposal facilities pursuant to Part 61, and because a licensee would not be able to monitor or demonstrate compliance with a specific dose limit that applies to an event that might occur hundreds of years in

6 *

7.

8 the future (see 47 FR 57449, December 27, 1982).

On page 6 of the petition, in the first complete paragraph, the petitioner states that a 500 millirem exposure limit, under the new Part 20, is meant to apply "primarily to temporary situations."

Part 20 is not applicable to inadvertent intrusion.

However, if it was applicable, it would seem that inadvertent intrusion would indeed constitute "a temporary situation."

It was, and is, envisioned by NRC as a hypothetical event that may never occur.

During the development of the Part 61 classification system, NRC felt that intrusion would most likely not be an extensive activity, nor one lasting for many years.

The assumption of extensive intrusion requires that one assume that a intruder contacts and disperses large pieces of cement, metal drums, and other unsavory detritus.

NRC felt that the assumption that a person could live on and grow food in such a churned-up mess was one that was extremely conservative, if not stretching the bounds of credibility.

Throughout the petition, the petitioner repeatedly differentiates between shallow land burial and highly engineered concrete disposal facilities. 3 The petitioner tries to justify revisiting the Part 61 rulemaking by claiming that (1) "the fact that shallow-land burial methods will not be utilized east of the Mississippi is a significant new circumstance bearing on the Part 61 waste classification system," and (2) the Part 61 cost analysis is faulty because if one uses engineered methods rather than shallow land burial, as planned by a number of states and compacts, then the cost difference between near-surface disposal and geologic disposal is so small that additional wastes should be deemed unsuitable for near-surface disposal.

Neither claim is realistic and neither claim justifies the petitioner's request.

The petitioner understands neither the derivation and scope of Part 61, nor the economics of siting, licensing, and operating a disposal facility.

10 CFR Part 61 applies to all land based disposal methods for LLW disposal.

The waste classification system and other technical criteria in Subpart D apply to all near-surface disposal methods, as defined in 10 CFR 61.2, including 3Although the petitioner emphasizes that most future LLW disposal facility designs would incorporate engineered concrete disposal structures, the petitioner discusses these designs in the petition as if they were no different, if not worse, than shallow land burial.

8.

9 engineered bunkers.

In both the draft and final EIS for Part 61, NRC considered a variety of near-surface disposal methods, including engineered methods, and performed dose assessments as well as cost analyses for disposal of LLW in humid as well as arid environments.

The waste classification system was derived assuming that the waste was disposed by shallow land burial.

This was done not because NRC expected that all or most LLW disposal facilities would be shallow land burial facilties, but because it was believed to be the most conservative case.

One would expect that possible impacts from LLW disposal by engineered methods would be equal to or less than those from disposal by shallow land burial.

If NRC did develop a waste classification system for engineered disposal methods, as suggested by the petitioner, one would expect higher concentration limits for a number of radionuclides.

Regarding the cost analysis, it was noticed during the Part 61 EIS analyses that costs for near-surface LLW disposal are mostly determined by costs associated with preconstruction activities, as well as the amount of waste over which to recover these preconstruction costs.

Costs for operational activities, such as construction of trenches or engineered bunkers, are not as significant.

(Also see comments 9 and 10.)

On page 13 of the petition, the petitioner addresses the concept of institutional controls as if the intention was to release the disposal site for completely unrestricted use.

It also states that "one of the.main justifications for confining the institutional control period to 100 years was the uncertainty involved in projecting our social structures on future societies over longer periods of time.

This does not accurately reflect the determination and use of the 100-year active institutional control period in 10 CFR Part 61, nor the necessary distinction between active and passive institutional controls.

Institutional controls had been a feature of LLW disposal well before promulgation of the Part 61 regulation.

From the beginning of the licensing process for LLW disposal facilities, LLW disposal facilities had to be located on land owned by the state or Federal government, so that unauthorized use of the disposal facility land could be precluded.

But over time, the concept of institutional controls evolved.

In 1978, EPA issued a draft "Criteria for Disposal of Radioactive Waste" that suggested a 100-year institutional control period, although EPA completely lacked any basis for suggesting the 100-year period (43 FR 53262, November 15, 1978).

Later, the concepts of active and passive institutional controls were developed.

10 For the Part 61 rulemaking, NRC chose a 100-year active institutional control period for the Part 61 rule.

This selection was primarily based on consensus of public opinion as expressed in "work performed by EPA; public comments on a preliminary draft of Part 61 and an advance notice of proposed rulemaking; and four regional workshops" (seep. B-140 of the final Part 61 EIS).

NRC noted EPA's preferences and also considered the desires of States and others for a relatively short time period for active institutional controls.

States needed to plan for site surveillance and monitoring costs, and wanted to limit these costs.

In comments on the proposed Part 61 rule, some commenters thought that the proposed 100-year period could be raised to 300 years, because institutions such as a state or Federal government could be expected to survive for much longer than 100 years. 4 The Commission responded, in the December 27, 1982 Federal Register Notice for the final rule, that it "was not a question of how long the government can survive, but how long should they be expected to provide custodial care" (47 FR 57459).

As stated on page B-42 of the final Part 61 EIS, "The rule does not presuppose collapse or failure of government, but rather places a restriction on the character of radioactive material disposable by near-surface disposal that serves to relieve government of the burden of actively excluding persons from the site in perpetuity." [emphasis added]

Furthermore, NRC expected that after the end of active controls (monitoring, maintenance, etc.), passive 4In fact, one commenter pointed out that "Our Constitution contains no provision for the dissolution of our government.

Marbury v. Madison, 5 U.S. 1 Cranch) 137 (1803) [sic] As Chief Justice Marshall explained, '(t)he (Constitution's) principles... so established, are deemed fundamental.

And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.'"

The commenter also noted that a Civil War was fought over this issue.

(See p. B-416 of the final Part 61 EIS.)

5Congress has recently determined that some forms of active institutional controls may be both desirable and very long-lasting.

For a HLW geologic repository which may be sited at Yucca Mountain, Section 801(c) of the Energy Policy Act of 1992 effectively requires perpetual DOE oversight of the repository.

DOE oversight is considered sufficient to prevent an unreasonable risk of activities that might breach the repository's barriers or increase the exposure of members of the public beyond allowable limits.

11 institutional controls could extend indefinitely (e.g., see page B-42 of the final Part 61 EIS).

Passive institutional controls include measures such as government ownership, regulations restricting land or resource use, markers, and records.

State or Federal ownership of disposal facility land is required by the Part 61 regulation.

A distinction between active and passive institutional controls has also been made by EPA for both its existing standard for high-level waste disposal, 40 CFR Part 191, and for its draft standard for low-level waste disposal, draft 40 CFR Part 193 (Ref. 4).

Cost issues

9.

Contrary to the petitioner's claim, should the requested change to 10 CFR Part 61 result in disposal of 12 percent of the annual volume of LLW by a method other than a near-surface LLW disposal facility, the annual cost for LLW disposal in the U.S. could significantly increase.

The cost for disposal of this 12% of existing LLW could very conservatively increase by approximately $140 million over the cost of currently planned concrete engineered disposal facilities.

Perhaps the petitioner does not understand all the cost factors comprising the total fee for LLW disposal and how they relate to one another.

Fees charged for LLW disposal will be comprised of the following cost factors:

1.

2.

3.

4.

5.

6.

7 *

8.

9.

10.

11.

12.

Environmental studies of proposed disposal sites Hydrology, geology, and similar site studies Conceptual design studies Detailed design Regulatory licensing efforts Permitting efforts Site procurement Site development Interest on monies used to bring the project from conception to completion Local and state surcharges and taxes Annual operating and maintenance (includes construction costs for disposal units)

Perpetual care fees Of the above 12 cost factors, items 1 through 9 will be amortized over the life of the facility and, therefore, 6Amendments to the Nuclear Waste Policy Act of 1982 allow for transfer of state-owned LLW disposal facility land to the control of the Federal government.

12 become an annual fixed cost.

Furthermore, cost items 1 through 9, plus item 12, are essentially independent of thesize of the disposal facility.

Item 10 can vary annually depending on the revenue needs of the state and local community.

Item 12 can vary if funding requirements for the perpetual care fund changes.

As for the use of engineered concrete structures significantly adding to the cost of LLW disposal, based on the above discussion of cost factors, this is not likely to happen.

Item 11 is about the only cost factor that will vary significantly depending on the disposal method -- e.g, whether shallow land burial or an engineered disposal method is used.

However, this cost factor does not dominate.

Currently, fees for LLW disposal in below grade trenches, which vary based on factors such as weight, curie content, or radiation level, are typically less than $100/ft 3

But when adding the surcharges associated with the Low-Level Radioactive Waste Policy Amendments Act {Amendments Act),

which will not remain in effect after the compacts open new disposal facilities, LLW disposal fees exceed $100/ft 3

Disposal fees for new facilities are expected to exceed

$150/ft3 and may exceed $200/ft3, depending on the volume of waste to be disposed.

For the purpose of discussion, we assume a disposal fee of $250/ft 3 for shallow land burial, and assume that the cost to construct and close the various disposal trenches is negligible.

To adjust the $250/ft 3 fee to that for engineered concrete disposal, we add the cost to install formed reinforced concrete.

Assuming $350/yd 3 of installed concrete and 2 cubic yards of concrete per cubic yard of waste, the disposal fee would increase by only

$26/ft 3 or 10 percent (again assuming no costs for constructing and closing the shallow land burial trenches).

This may be compared with the costs for disposal of waste in a geologic repository for low-level waste.

According to the Amendments Act, disposal of this waste (which would have radionuclide concentrations less than the Part 61 Class C limits) would remain the individual responsibilities of the individual compacts and go-it-alone states.

Nonetheless, we conservatively assume a single repository licensed by NRC.

Based on DOE-developed cost data reported in January 1986 (Ref. 5), the cost to dispose of transuranic (TRU) waste at the WIPP facility (a mined geological repository) was

$35,000/m3 or about $1000/ft3

• TRU waste is in many ways physically similar to LLW.

The associated radiation levels cover a wide range for both waste types, and both wastes contain process wastes, scrap materials, and unneeded components.

Using an annual escalation rate of 3 percent per year since 1986, the annual disposal cost would now be

10.

13

$1212/ft 3 for a geologic repository such as the WIPP facility.

The cost difference between surface engineered disposal and geological disposal is therefore $936/ft3

($1212/ft3

$276/ft3 ).

The average annual volume of LLW generated in the U.S. over the last 2 years was 1,255,500 ft 3

Twelve percent of this volume disgosed of with an increase in the disposal fee of $936/ft results in an annual increase in disposal costs of $141 million.

This additional expense is much more likely to be underestimated than overestimated.

The above costs for WIPP don't include regulatory costs which would be applicable if a geologic disposal facility was licensed by NRC.

In addition, the above analysis ignores the difficulties of siting a radioactive waste disposal facility, which based on recent history with siting near-surface LLW disposal facilities, would be significant.

Furthermore, each compact or go-it-alone state could end up being compelled to develop a separate geologic repository for a very small amount of waste.

There would be no savings from economy of scale, and disposal costs would escalate dramatically.

In addition to the costs addressed above, a supplemental NRC rulemaking on Part 61 would result in additional costs being experienced by the generators of the remaining 88% of LLW hypothetically found still suitable for near-surface

~disposal.

These additional costs would be caused by the economics of LLW disposal, which are strongly influenced by the amounts of waste disposed, and by the delays in licensing LLW disposal facilities that would result from a supplemental NRC rulemaking.

These additional LLW disposal costs would be passed on to disposal facility customers.

Regarding waste volume considerations, we refer again to the 12 cost factors listed in the previous comment.

We repeat that cost items 1 through 9, plus 12, are essentially independent of the size of the disposal facility.

These costs will not vary greatly between very large compact disposal sites and small compact or go-it-alone states, and are likely to be large.

(For example, one designer has estimated the cost of items 1 and 2 to be between $30 and

$60 million.)

Therefore, even if there was a 12 percent reduction in the annual volume of LLW delivered to LLW disposal facilities, this would not result in a 12 percent reduction in the total annual LLW disposal cost.

Cost items 1 through 9 and 12 would have to be recovered whether 1 cubic foot of waste is disposed or 100,000 cubic feet.

(The cost per cubic foot may change, but not the total funds collected.)

These funds would have to be collected from the generators of the remaining 88% of the waste.

Therefore, a 12 percent reduction in waste volume could result in a 12 percent increase in disposal fees.

14 Regarding delays, any rulemaking that NRC undertakes to change 10 CFR 61.55 would be controversial, and would likely require at least three years to complete.

During this time, we expect that very little progress in opening new LLW disposal capacity would be made.

Meanwhile, existing LLW disposal capacity is being eliminated or restricted.

This means that generators must store waste for additional years, at additional costs and radiation exposures.

In addition, expenses associated with developing new disposal capacity will not cease, even though progress would come to a halt.

These costs include the costs of data collection, administration, siting and design studies, and other costs imposed by the different compact authorities.

In some compacts, disposal facilities are being sited by private industry.

At least one company has incurred considerable predisposal costs.

These costs -- some of which represent interest on borrowed money -- must be recovered in the form of increased disposal fees when new disposal facilities are eventually sited and licensed.

11.

Any revision to 10 CFR 61.55 would also delay near-term decommissioning efforts and increase their costs.

The reclassification of additional low-level wastes as greater-than-Class C (GTCC) wastes would directly affect the cost of decommissioning.

The magnitude of this increase would depend on how 10 CFR 61 is revised.

Establishing and maintaining facilities for onsite storage of waste until a disposal facility is available would increase costs.

The inability to ship low-level waste offsite would result in schedular delays in decommissioning activities such as final termination surveys.

12.

The burden of any increased disposal costs resulting from the rulemaking proposed by the petitioner will not be equitably distributed.

Many nuclear utilities can recover costs through rate increases, which would be distributed over the many users of the electrical system.

But the real cost burden would primarily fall on small generators such as hospitals, research facilties, and universities.

Many but not all wastes generated by hospitals are very short lived and may be held for decay before disposal as non-radioactive waste.

But life is not so simple for many research and academic institutions, where the use of radio-labeled compounds (and generation of LLW) is common.

From "Low-Level Radioactive Waste From Cradle to Grave" (Ref. 6) --

Radioactive materials are ubiquitous throughout all academic and biomedical research and educational activities.

Their use is invaluable as radioactivity greatly improves sensitivity and specificity over chemical assay methods of detection.

In universities

13.

15 radioisotopes are used to aid classroom and laboratory instruction in physics, biology, chemistry, geology, and ecology.

Research in modern biology and medicine hinges on the continued and probably expanded use of small amounts (micro-to millicurie or 10 kilo-to megabecquerel) of radioactivity.

Furthermore, radiolabeled chemicals are essential for predicting the field behavior of pesticides and other environmentally released compounds.

Similarly, most new drug formulations undergo metabolic studies that use radioactive compounds.

Certain research efforts that use radioisotopes as tracers, and thus produce waste, would be forced to spend a much greater fraction of a fixed (if not shrinking) research budget on LLW disposal.

This reduces the monetary resources that can actually be devoted to research.

To the extent that such research involves diseases such as cancer, increases in disposal costs caused by the proposed revision to Part 61 could result in the loss of lives.

To emphasize the importance of the use of labeled compounds in research, we have attached a paper by Dr. Jeanne Krieger, of the Du Pont Merck Pharmaceutical Company, entitled "Mixed Waste, a Generator's Comments."

Although this paper addresses the specific problem of disposal of mixed waste, many points are equally valid for disposal of LLW.

Among these points is the fact that over a 15 year period starting in 1975, no less than 10 Nobel Prizes for physiology and medicine were awarded for work involving labeled compounds.

Radioactive isotopes used for labeling these compounds included C-14 7, tritium, S-35, and P-32.

Dr. Krieger can be contacted at 508-671-8541 for further information.

The petitioner cites the increasing costs of LLW disposal as justification for the petition's proposals, asserting that because the costs for LLW disposal have increased since the promulgation of the Part 61 rule, which occurred about a decade ago, the difference between costs for disposal in a near-surface facility and costs for disposal in a geologic repository is much smaller than that believed for the Part 61 rulemaking.

7In the RAE study touted by the petitioner, of the 6 wastes streams "failed" in the study, four did so because of putative exposures to C-14.

These waste streams were all from nuclear power reactors, although it is strongly believed that the vast majority of C-14 in LLW is generated by institutional and industrial generators (e.g., see NUREG-1418, Ref. 7 )

• 16 The petitioner's reasoning is faulty because the petitioner does not consider that projected costs for waste disposal have increased generally over the past decade, not just for near-surface disposal of LLW.

We believe that if one investigated, one would find that almost any disposal alternative that could be proposed for radioative waste disposal would cost considerably more today than that estimated a decade ago.

An example is a geologic repository for HLW disposal.

In the Federal Register Notice for the final licensing procedures for the Part 60 rule, which was published on February 25, 1981, NRC estimated that the "at depth" portion of site characterization of a geologic repository located in soft rock would cost no more than $25-30 million (46 FR 13973).

But today, just over a decade later, the estimated cost for characterizing the site at Yucca Mountain is $6.2 billion.

Therefore, a decade ago NRC projected a large difference between costs for disposal of LLW by near-surface methods and costs for disposal of LLW by geologic methods.

We believe that today, a significant difference in costs remains.

Although the costs for near-surface disposal of LLW have increased since a decade ago, potential costs for geologic alternatives to near-surface disposal should have also increased.

Legal issues

14.

The petitioner advocates an illogical scenario of deliberate intrusion into a LLW disposal facility to recover valuable stainless steel (see comments 19-20).

But even if one wished to hypothesize such a scenario, one must do so with the realization that LLW disposed in a LLW disposal facility consists of source, byproduct, or special nuclear material as defined by the Atomic Energy Act of 1954, as amended.

Deliberate intrusion for extraction of radioactive material would constitute possession of source, byproduct, or special nuclear material, which is prohibited without authorization pursuant to the Atomic Energy Act.

The petition envisions a deliberate intruder as a miner working full time in a radioactive environment.

(The RAE report referenced by the petitioner assumes that the miner works in close proximity to waste for 2000 hours0.0231 days <br />0.556 hours <br />0.00331 weeks <br />7.61e-4 months <br /> out of the year.)

But in this case, a miner's activities would be licensed by either the State or NRC, if the disposal facility was sited on State-owned land, or authorized by the Department of Energy (or other federal agency), if the disposal facility was sited on Federally-owned land.

In either case, the deliberate intruder would be a radiation worker whose exposure to radiation would be controlled by regulations or orders, and reduced to levels as low as

17 reasonably achievable.

Another possibility -- that a deliberate intruder tries to recover radioactive material without authorization -- would be an illegal act punishable by civil and criminal sanctions.

In this case, a deliberate intruder's actions would be necessarily furtive, to avoid detection.

Under these conditions, it should prove very difficult for a deliberate intruder to recover much material of value, if any.

Potentially valuable material would be distributed within hundreds of thousands of cubic feet of waste and soil, and very likely buried under tons of concrete.

It would be very difficult (not to say unrealistic) for an intruder to secretly sift through such a large quantity of material, knowingly subjecting himself to radiation exposure, in the hopes of recovering something of value.

It might be postulated that in the far future, the Atomic Energy Act is non existent, and that this would justify a deliberate intrusion scenario.

But this argument would be illogical.

If the Atomic Energy Act (or supplemental legislation) was eliminated, then its elimination would logically result from a conscious decision by Congress that source, byproduct, and special nuclear material did not require control to protect national security or public health and safety (e.g., scientific achievements greatly reduce the risk of cancer from radiation exposure).

In this case, the need for the intruder scenario would also seem to be eliminated.

Also see comment 22.

15.

Under the Amendments Act, the states and compacts are responsible for disposal of all commercially generated LLW not exceeding the Part 61 Class C concentrations, as well as similar wastes generated by some government entities.

In fact, the Amendments Act specifies the Class C limits in effect as of January 26, 1983.

Any changes to the Part 61 classification system by NRC would have no effect on this legal mandate.

If NRC lowered the Class C limits, waste having concentrations between the old and new limits would remain the responsibility of the states and compacts.

DOE has no authority to accept such wastes for disposal.

However, we doubt that States and Compacts would feel it their duty to dispose of such waste, after NRC essentially tells them they didn't have to do so.

An "orphan" class of waste would result.

Meanwhile, the process of siting new disposal facilities would be seriously disrupted.

If NRC raised the Class C limits, we doubt that any state or

18 compact would accept any waste having concentrations between the old and new limits.

States and compacts would rightfully point out that disposal of such waste is GTCC waste according to the Amendments Act, and responsibility for disposal of this waste lies with the Federal government.

Nonetheless, we believe that many members of the public would believe that NRC is "trying to dispose of high-level waste and GTCC waste as LLW," and there would be considerable public consternation.

Again, the process of siting new disposal facilities would be disrupted.

Technical issues

16.

The petitioner recommends that NRC reduce annual dose limits for inadvertent intrusion from 500 millirem to 100 millirem.

However, the petitioner does not acknowledge that the conservative way in which NRC established the classification limits in Part 61 probably already largely achieves this objective.

The Part 61 classification system is based upon calculations involving hypothetical intrusion events for which an intruder is assumed to contact and disperse several hundred cubic meters of waste and soil.

It is very important to realize, however, that there is no reason to suppose that the intruder will be any more likely to contact one portion of the waste and soil mixture than another.

Given this, the waste classification calculations were based on assumptions about exposures to concentrations of radionuclides as averaged over 232 cubic meters of excavated waste mixed with 680 cubic meters of soil (see the draft Part 61 EIS).

This volume of excavated waste is far larger than the volume of any single waste container.

Nonetheless, NRC conservatively applied these calculated average concentrations as concentration limits for individual containers of waste.

Based on analyses in the final Part 61 EIS, NRC staff expected that the average radionuclide concentrations within waste would be lower than the allowable limits in the Part 61 tables.

As indicated on page B-40 of the final EIS, according to calculations performed by NRC for the final EIS, the waste classification concentration limits in Section 61.55 would "result in actual potential exposures to an inadvertent intruder of a few hundred mrem at 100 years and a few mrem at 500 years."

The disposal record generally supports NRC's expectation that average radionuclide concentration levels within a waste class would be much less than the concentration limits for that class.

NUREG-1418 can be examined for commercial disposal data for the years 1987 through 1989 (Ref. 7).

For 1990, we have assembled data as obtained from commercial

19 disposal facility operators and have summarized these data in an attachment to these comments.

Given this, it would certainly not appear to be useful to modify the Part 61 classification system, with all the delays and other problems associated with such an undertaking, in an effort to reduce hypothetical doses to a hypothetical inadvertent intruder by no more than a few dozen hypothetical millirems.

17.

The petitioner assumes that a reexamination of the Part 61 classification system would result in additional wastes determined to be unsuitable for near-surface disposal.

This might not be the case, even if lower dose limits for inadvertant intrusion were used.

The Part 61 classification system was derived based on a number of conservative assumptions.

By revising these conservative assumptions and using more current dosimetry models, the Class C classification limits for a number of radionuclides might be raised, not lowered.

First, NRC derived the Part 61 classification system by conservatively assuming that waste was disposed by shallow land burial.

This was done so that any impacts from LLW disposal would tend to be at a maximum.

However, many new LLW disposal facilities will incorporate multi-barrier concrete disposal systems which would be expected to confine waste and deter intrusion to a greater extent than that assumed for development of the Part 61 classification system.

Farming and land use options should be reduced, particularly if the disposal facility was constructed partially above grade.

(The closed disposal facility would resemble an evenly smoothed and mounded hill or mesa, which should suggest to an inadvertent intruder that the hill was a product of man rather than nature.)

For such engineered features, an argument could be made that classification limits could be raised.

8 Second, as addressed in comment 16, the way in which NRC applied the calculations for classification automatically 8Based on discussions with one designer of engineered concrete disposal facilities, it is understood that their construction will be as follows.

The LLW is placed inside reinforced concrete boxes which have a 1-inch thick poly-liner.

(This represents two separate barriers.)

This box is located in a concrete housing and all unoccupied space is filled with concrete, which then becomes a solid concrete monolith.

This represents a third barrier.

The monolith is then covered with a fourth barrier that resists water infiltration.

This is then mounded over with soil.

20 incorporates a conservatism frequently greater than the factor of five reduction in intruder dose limits that has been suggested by the petitioner.

If NRC did reconsider the Part 61 classification system using a lowered intruder dose limit, it would be logical to apply this dose limit to control average concentrations of radionuclides within a disposal facility.

This would remove one of the major conservatisms in development of the existing classification system.

Based on the above evidence, allowable container concentrations could be much higher -- e.g., higher than a factor of five or even ten -- than average disposal facility concentrations to achieve this lowered dose limit.

Third, since the development of the Part 61 classification system, improved information is available for some critical parameters used for modeling uptake and dose from ingested radioactive materials.

For example, the classification limit for C-14 was determined by assuming a plant root uptake factor obtained from NRC Regulatory Guide 1.109.

This uptake factor is known to be unrealistic; one study suggests that it is too large by about a factor of ten.

(See Sheppard, et al., "Soil-to-Plant Transfer of Carbon-14 for Environmental Assessment of Radioactive Waste Repositories," EPRI NP-6956, August 1990.)

Use of a more realistic plant root uptake factor, all other parameters being equal, would raise allowable concentration limits for C-14 by an order of magnitude.

As another example, the ingestion bone dose conversion factors for Ni-59 and Ni-63, respectively, are 70 and 400 times lower when using more modern internal dosimetry than they are using the old ICRP-2 dosimetry.

(ICRP-2 method-ology was used for the ingestion dose conversion factors for the Part 61 waste classification system.)

Application of the same dose limit and pathway analyses would produce proportionally less restrictive classification limits.

Thus, assuming shallow land burial, a reanalysis of the Part 61 waste classification system might result in higher concentration limits for a number of radionuclides.

Even higher limits might be allowable for the multi-barrier engineered concrete disposal facilities that are currently under consideration for commercial LLW disposal.

18.

The petitioner states that that NRC should reopen the Part 61 rulemaking, using additional, more conservative assumptions for waste classification, including deliberate intrusion.

The petitioner essentially observes that if one's modeling assumptions are more conservative, one calculates higher doses.

As justification, the petitioner cites the RAE report for the State of Vermont.

In fact, in the commenter's April 25, 1992, letter "to whom it may

21 concern," the commenter states that RAE report indicates that "under modeling scenarios different from those used by NRC"... certain Class A, B, and C reactor waste streams... "would cause an earth mounded concrete vault facility to fail." [emphasis added]

However, the petitioner's arguments are faulty.

First, there is no federal mandate to consider intrusion into LLW disposal facilities, either inadvertent or deliberate.

The fact that NRC considers inadvertent intrusion at all demonstrates that NRC "has gone the extra mile" to assure protection of public health and safety and the environment.

NRC has not established radionuclide concentration limits for protection of an inadvertent intruder into either a mill tailings facility or a high-level waste (HLW) geologic repository.

Regarding HLW repositories, Section 801(b) of the Energy Policy Act of 1992, signed into law on October 24 of this year, restricts NRC from considering the potential for intrusion into any HLW geologic repository that may be sited at Yucca Mountain.

Consistent with the findings and recommendations of the National Academy of Science, NRC must assume for its regulations that engineered barriers and post-closure DOE oversight of the Yucca Mountain site are sufficient to "(A) prevent any activity at the site that poses an unreasonable risk of breaching the repository's engineered or geologic barriers; and (B) prevent any increase in the exposure of individual members of the public to radiation beyond allowable limits."

Second, the petitioner only considers the possibility of more conservative assumptions.

But with equal if not greater justification NRC could consider less conservative assumptions.

We have discussed a number of these conserva-tive assumptions in other comments (see comments 16 and 17).

In addition, NRC could have assumed that society would become so sophisticated that no breakdown in institutional controls would occur, or that contractors constructing houses and wells would be required by law to routinely test for radiation levels and various contaminants. 9 NRC could 9The trend is for increasing numbers of tests for possible environmental contaminants.

For example, tests for radon in homes and public buildings are becoming common.

As another example, proposed EPA regulations under the Safe Drinking Water Act would require that operators of public drinking water systems routinely test for the presence of radionuclides in drinking water supplied by these systems (see 56 FR 33050, July 18, 1991).

22 have assumed that the risks from exposure to radiation will significantly decline during the next century because of scientific achievements that result in much higher rates of disease preventions and cures than is currently the case.

Future risk-based radiation protection standards might permit much higher exposures to radiation than are allowed today.

Third, there are a myriad of possible scenarios that could be envisioned involving intrusion into a LLW disposal facility.

One can never say with certainty what the future will bring.

This is why it would be profoundly foolish to try to do so, and why -- if intrusion is to be considered at all -- it is far preferable to limit the consideration to a few basic scenarios.

Otherwise, one could analyze the issue forever without ever coming to a conclusion.

Fourth, no matter what kind of disposal method is used, or how many or extensive the barriers, it is always possible to dream up an intrusion scenario for which the dose limits cited by the petitioner would be exceeded.

For example, one could dispose of LLW encased within a 500-foot block of solid lead in a geologic disposal facility on the moon.

However, all that one would have to do to "demonstrate" in a "technical analysis" that such a disposal method was "unsafe" would be to assume that all barriers had been bypassed.

For example, one could assume that intergalatic terrorists exhume the waste and shoot it to the earth, to be distributed throughout the earth's atmosphere.

Thus, it is pointless to try to find the worst conceivable scenario, however unlikely.

Rather, if inadvertent intrusion is to be considered, the only useful activity would be to try to consider a few reasonable scenarios, as NRC has already done for the Part 61 rulemaking.

Fifth, the RAE study provides no justification for the petitioner's request.

This point is addressed in detail in an attachment.

Briefly, however, the RAE study does not demonstrate that more barriers are needed to protect public health and safety.

The RAE study assumed that all barriers were bypassed.

No credit was taken for any engineered features or certain other logical constraints.

19.

On page 12 of the petition, the petitioner seriously jeopardizes its creditability by conjecturing that future LLW disposal facilities will likely provide an economic source of stainless steel in large concentrations.

The petitioner states that large quantities of stainless steel exist in low-level radioactive waste but provides no reference and does not attempt to quantify "large."

23 However, although LLW includes metals of various types, and certainly most LLW containers are composed of low-grade steel, we doubt that very much stainless or high alloy steel is currently disposed in LLW disposal facilities.

Steel can be "radioactive" either because the surface is contaminated with radioactive material or the metal is made radioactive from neutron activation.

Apparently, the petitioner is most concerned about high-activity activated metals such as reactor core components, based on the RAE report cited by the petitioner which calculated high exposures to a "miner" of reactor core components from a LLW disposal facility.

Regarding contaminated metal, the nuclear power industry is, whenever possible, attempting to decontaminate the metal because of the costs of LLW disposal.

The decontaminated metal can then be reused.

This particularly applies to materials such as stainless steel which are expensive and can be decontaminated with ease.

Activated metals cannot be decontaminated, although there does not appear to be significant quantities being disposed.

Regarding activated metals from nuclear reactors, consider the following data for the years 1987 through 1990, wherein we list the combined volumes of all classes (waste classes A, B, and C) of activated metals (which consist of zircaloy, inconel, and other metals in addition to stainless steel) disposed at all commercial LLW disposal facilities:

Disposed Volume (ft 3 )a 1987 1988 1989 1990 Four-year Ave.

1,648 1,692 4,970 4,012 3,080 aVolumes for 1987-1989 are from Ref. 7.

Volumes for 1990 are from data obtained from disposal facility operators.

An annual average of 3,100 ft 3 of activated metal waste does not constitute a large quantity of waste, particularly when one considers that typically only about 15 to 20 percent of the space within a container of activated metal waste actually contains waste.

In addition, much activated metal waste consists of tubes or irregularly shaped objects, so that the actual mass of the waste is much less than the mass that would be suggested by multiplying the envelope volume of the waste by the density of steel.

Even conservatively assuming that all the activated metal volume is solid, conservatively assuming a density of 8 g/cm3, and assuming waste containers 15% full, one arrives at an average annual disposed activated metal waste mass of about 105 metric tons (MT) at all LLW disposal sites.

24 To estimate how much activated metal might be contained in a single commercial disposal facility sited in accordance with the Amendments Act, we assume that there are 14 disposal facilities operating in accordance with current compact plans, and that each disposal facility operates for 30 years.

In this case, a single disposal facility could conservatively contain, on average, about 225 MT of activated stainless steel, zircaloy, and inconel from reactor operations.

An additional source of activated and contaminated steel could arise from decommissioning nuclear power plants.

The first nuclear power plants to be decommissioned will be small units.

However, we assume that all activated and contaminated metals (except GTCC wastes) from a single very large (1175 MWe) pressurized water reactor (PWR) nuclear power plant are disposed at a single disposal facility.

From Ref. 8, we estimate a total mass of 590 MT of activated metals from the reactor vessel, cavity, and internals.

Of this mass, about 400 MT would be contributed by the reactor pressure vessel, bottom, and head, and would consist of carbon steel rather than stainless steel.

About 3900 MT of contaminated metal could also be generated from reactor decommissioning, of which perhaps half might consist of stainless steel.

Probably much of this contaminated metal could be decontaminated and recycled rather than disposed.

Considering the ever-growing cost of LLW disposal, even very rigorous steel decontamination and recycle activities could prove to be cost-effective.

Reference 9 estimates the quantities of wastes that might result from decommissioning a large (1155 MWe) boiling water reactor (BWR) nuclear power station. 10 Reference 9 estimates generation of about 223 MT of activated metal wastes (not including GTCC wastes), of which 65 MT is stainless steel and 158 MT is carbon steel.

This reference also estimates 10,500 MT of contaminated carbon steel, stainless steel, and aluminum.

Again, probably much of the contaminated steel could be decontaminated and recycled rather than disposed.

This mass of metal is not significant.

By comparison, assuming the average production rate in the 1980's, 600 million tons of alloy and stainless steel would be produced in the U.S. alone, between 1970 and 2020 (Ref. 10).

There should be significant quantities of scrap stainless steel without resorting to the expense and difficulty of mining LLW disposal facilities.

This is especially the case when 10Incidently, the only nuclear power reactor sited in Ver-mont is Vermont Yankee, a 504 MWe boiling water reactor.

25 one considers that any stainless steel actually disposed in a LLW disposal facility would be distributed through hundreds of thousands of cubic feet of waste, and very likely buried under tons of concrete.

It should be extremely difficult and economically unfeasible to attempt to recover disposed metals or other materials for reuse.

Miscellaneous issues

20.

21.

The petitioner tries to demonstrate the validity of a mining scenario by relating a supposed incident where radioactive stainless steel was unknowingly sold into the scrap market.

This is misleading.

First, the incident referenced by the petitioner did not involve "radioactive stainless steel" but a sealed cobalt-60 source in a stolen medical irradiator.

There was no "radioactive stainless steel" involved.

The source and irradiator was smelted and mixed with non-radioactive steel, resulting in production of some steel products containing Co-60 (and a contaminated smelter).

This incident was discovered using existing radiation detection devices, and although some individual exposures were regretably high, it certainly did not cause an international catastrophe, nor did it cause upheavals in society.

In any case, many if not most scrap recycle facilities (as well as many landfills and hazardous waste disposal facilities) now use off-the-shelf radiation detection equipment to screen incoming shipments for radioactive material.

The chances of widespread undetected diversion of radioactive materials to the scrap metal market is much less likely today than it was before the incident took place.

The petitioner attempts to raise the spectre of terrorist use of radioactive waste as justification for a more stringent classification system.

As justification, the petitioner mentions the Juarez and Beatty incidents where radioactive materials became distributed.

The Juarez incident is discussed above.

The Beatty incident purposefully involved very low levels of radioactive material, and any public doses that might have been received were very small.

From our understanding, members of the public in the Beatty area participated in the incident.

The spectre of terrorist use of radioactive waste is an old canard.

Although one cannot say that such an incident would never occur, one can say that it would not be in keeping with most terrorist activities, which generally involve more showy spectacles such as explosions.

22.

On pages 9 through 12 of the petition, the petitioner attempts to support its case that much more conservative

26 assumptions about human intrusion should be made.

Two of the principal points are:

(1) today's world is far different than 100 years ago, which is proof that non-credible events could happen in the future, and (2) resoures may be in such short supply in the future that not only might there be an overpowering need for stainless steel, but that a waste disposal facility may have to be used for farming or other uses.

The first point is irrelevant, for a simple reason:

Time only moves forward.

Whatever was the lifestyle or state of technology some hundreds of years ago does not matter because we do not live in that time.

And neither will those that live after us.

Currently, we can detect many forms of radiation using relatively inexpensive equipment.

There is no reason to suppose that future generations will not have access to existing technology, and there is every reason to believe that radiation detection technology will have considerably advanced.

The ability to treat cancers and other diseases should also be considerably advanced.

The possibility of a converse future, that future societies have reverted to a more primitive and ignorant lifestyle is irrelevant for purposes of radioactive waste disposal.

If such a lifestyle takes place, it could only happen after a cataclysm so dramatic that survivors would have far more pressing concerns than the possibility of a few hundreds of hypothetical millirems from a lost LLW disposal facility.

Regarding the second point, rather than the possibility that stainless steel will be a rare, precious commodity, it may with equal likelihood become a commonplace entity.

Recall that aluminum was once a precious metal, not unlike gold, until an inexpensive process was discovered to extract aluminum from bauxite ore.

Now aluminum is used to can beer.

In addition, the petitioner may not be aware that 10 CFR 61.7 already allows for productive use of a LLW disposal site during the active institutional control period "provided that the integrity and long-term performance of the site are not affected."

There is no reason to suppose that productive use of a LLW disposal site might not continue after the assumed end of the active institutional control period.

All that would be required would be a few restrictions on excavation or well construction, which can be easily assured by mostly passive administrative means.

The land might be used for grazing, a tree farm, a park, golf course, a wildlife habitat, or for many other applications.

_J

27 References

1.

Personal communication, R. Baird, Rogers and Associates Engineering Corporation, with G. Roles, U.S. Department of Energy, September 16, 1992.

2.

U.S. Nuclear Regulatory Commission, "Draft Environmental Impact Statement on 10 CFR Part 61, Licensing Requirements for Land Disposal of Radioactive Waste," NUREG-0782, Office of Nuclear Material Safety and Safeguards, September 1981.

3.

4.

U.S. Nuclear Regulatory Commission, "Final Environmental Impact Statement on 10 CFR Part 61, Licensing Requirements for Land Disposal of Radioactive Waste," NUREG-0945, Office of Nuclear Material Safety and Safeguards, November 1982.

U.S. Environmental Protection Agency, "Environmental Standards for the Management, Storage, and Land Disposal of Low-Level Radioactive Waste (40 CFR Part 193) and Naturally Occurring and Accelerator-Produced Radioactive Waste (40 CFR Part 794)," draft, April 1989.

5.

DOE memorandum, Arlen E. Hunt to J.M. McGough, document number WIPP:~EH:85-2748, January 17, 1986.

6.

Gershey, E.L., et al., "Low-Level Radioactive Waste from Cradle to Grave," Van Nostrand Reinhold, New York, 1990.

7.

Roles, G.W., "Characteristics of Low-Level Radioactive Waste Disposed During 1987 Through 1989," U.S. Nuclear Regulatory Commission, December 1990.

8.

Smith, R.I., et al., "Technology, Safety and Costs of Decommissioning a Reference Pressurized Water Reactor Power Station," NUREG/CR-0130, Battelle Pacific Northwest Laboratory for U.S. Nuclear Regulatory Commission, June 1978.

9.

Oak, H.D., et al., "Technology, Safety and Costs of Decommissioning a Reference Boiling Water Reactor Power Station," NUREG/CR-0672, Battelle Pacific Northwest Laboratory for U.S. Nuclear Regulatory Commission, June 1980.

10.

111 edition of the Statistical Abstract of the United States, 1991 National Data Book, U.S. Department of Commerce, page 759, data point 1333 for "alloy and stainless."

Preliminary Comments on "Identification of Waste Streams Containing Significant Levels of Long-Lived Radionuclides" The report, "Identification of Waste Streams Containing Significant Levels of Long-Lived Radionuclides" (RAE-9120/1-1, April 1992), was prepared by Rogers and Associates Engineering Corporation (RAE) for the Vermont Low-Level Radioactive Waste Authority.

The report was meant as a screening analysis to identify "wastes containing significant levels of long-lived radionuclides" in low-level waste (LLW) in response to Vermont Act 296.

We have conducted only a preliminary review of the report, partly because of a lack of time and partly because the report generally presents only the analysis results; most of the significant details important to the analysis are not provided.

Nonetheless, our preliminary review has revealed a number of problems that detract from the usefulness of the report as a screening mechanism.

We suggest that the Nuclear Regulatory Commission (NRC) obtain more details about the analysis from RAE and conduct a more complete review.

To. analyze putative impacts from LLW disposal, the report sets forth several well water, inadvertent intrusion, and deliberate intrusion scenarios; and each scenario is based on extremely conservative -- in some cases inappropriate or non credible --

assumptions.

The analysis is furthermore non site-specific.

Despite this, the report compares doses calculated from these scenarios against a set of dose limits (of which some are chosen inappropriately), concluding that waste streams that exceed the chosen dose limits constitute "wastes containing significant levels of long-lived radionuclides."

The problem with this approach is that the conclusions are merely artifacts of the analysis assumptions.

By making more or less stringent assumptions, more or fewer waste streams could be determined to contain "significant levels of long-lived radionuclides."

Instead of identifying six "long-lived" waste streams, the report could have concluded that no LLW streams (or different LLW streams) fit this description.

In addition, because the scenarios are abstracted from reality, and because the analysis does not consider site-specific environmental conditions, the calculated doses are meaningless in and of themselves.

Another concern is that the results may be independent of the quantities of each waste stream, which would be a misleading situation.

A far better approach would have been a comparison of relative hazard among the different waste streams.

One would assume disposal of all waste streams in accordance with their projected volumes, and then normalize the results.

Then the waste streams

2 contributing the most to the unit dose could be identified.

However, even under this approach, one would have to interpret the results very carefully, because comparisions of the contributions of the different waste stream to the total dose would still depend on the assumptions made for the analysis.

If the assumptions are so conservative to be non-credible, then one must question whether any comparisons among waste streams could be considered reliable.

Otherwise, we note other problems.

One of the most significant is that the deliberate intruder scenario as envisioned in the report is inappropriate.

Because the activities depicted in the scenario involve possession of source, byproduct, or special nuclear material pursuant to the Atomic Energy Act of 1954, as amended, such activities could not legally occur without authorization.

The deliberate intruder would therefore constitute a radiation worker to which regulatory standards and safeguards would apply.

Comments

1.

2.

The report almost completely lacks details critical to the analysis, such as the assumed amounts of rainfall percolating into the waste, the volume of water into which radionuclides are assumed to be leached from waste, etc.

Rather, the report merely presents a few figures (which don't resemble the disposal method actually planned for Vermont), a few paragraphs, and the results.

For details of the model, the report refers the reader to the users manual for the PATHRAE-EPA computer code (Ref. 1).

However, this reference provides few additional clues about the assumptions used for the report analyses, because a large number (if not most) of the values for the parameters in the PATHRAE-EPA models are supplied by the user of the PATHRAE-EPA code.

We do note that PATHRAE-EPA was developed for EPA primarily to examine disposal of LLW into landfills as part of development of radiation protection limits for waste considered below regulatory concern.

The disposal method to be used in Vermont is quite different from a landfill.

This leaves the question as to whether PATHRAE-EPA is a appropriate model for the report analyses.

The report frequently cites DOE Order 5820.2A as justification for the limits chosen for inadvertent intrusion.

However, the limits in DOE Order 5820.2A for protection of an inadvertent intruder are meant to be used for analysis of the impacts that might be associated with a specific DOE disposal facility, and are not meant to be applied as a generic standard for analysis of individual commercial LLW streams.

3 NRC and DOE have adopted different approaches for LLW management.

In 10 CFR Part 61, NRC promulgated a generic waste classification system designed to be used by pot~ntially thousands of licensees.

NRC took this approach because it could not know where LLW disposal facilities licensed under Part 61 would be located, nor the details of the disposal site environment, nor the particular designs of the disposal facilities licensed under Part 61.

NRC used an annual intruder dose objective in the range of 500 millirem to derive the classification limits.

Because the Part 61 rule specifies all activities required to protect an inadvertent intruder, under normal circumstances a disposal facility applicant need not calculate possible doses to a potential inadvertent intruder.

Chapter III of DOE Order 5820.2A contains requirements for disposal of LLW, and these requirements were developed considering a different approach to LLW management, necessitated by DOE's particular situation.

DOE doesn't have the freedom of site-selection that exists in the commercial sector, and also must accept waste from far fewer generators of waste.

For these and other reasons, DOE did not adopt a general waste classification system but adopted a performance objective approach whereby site-specific classification systems would be developed.

Section III(3)(a)(3) of DOE Order 5820.2A addresses protection of an inadvertent intruder, requiring that "the committed effective dose equivalent received by individuals who inadvertently may intrude into the facility after the loss of active institutional control (100 years) will not exceed 100 mrem/yr for continuous exposure or 500 mrem for a single acute exposure."

At first glance, it would appear that DOE requirements are about a factor of five more stringent for "continuous exposure" than the range of exposures used for the Part 61 classification system.

However, this is deceptive because of the way in which NRC established the Part 61 classification system.

NRC calculated concentration limits by assuming that an entire disposal facility would be filled with waste at that concentration, and then conservatively applied these facility concentration limits as limits for individual waste containers.

In so doing, NRC expected that actual concentrations in disposed waste would be much less than the container limits.

(LLW disposal records have largely supported this expectation -- see Ref. 2.)

In contrast, the annual 100- and 500-mrem limits in DOE Order 5820.2A are meant to be applied as facility limits.

DOE is considering using the 100- and 500-mrem limits as a basis for determining average site concentration limits, which would mean that container limits could be higher than the site average limits.

4

3.

Citing DOE Order 5820.2A as a basis for deliberate intrusion is a clear misrepresentation of the Order.

DOE Order 5820.2A sets no performance objective for protection of a deliberate intruder.

It is egregiously inappropriate to cite the 500 millirem inadvertent intruder limit in the Order as a general standard for acute exposures under other circumstances than those for which it is to be used under the Order.

4.

The deliberate intrusion scenario is inappropriate for consideration in the report, for the same reason that the report neglects consideration of exposures to workers during disposal operations.

As stated on page 2-4 of the RAE report, radiation workers "are required to be adequately protected under regulations separate from those that apply strictly to disposal."

The report assumes that as a vocation, a person knowingly and openly intrudes into a LLW disposal facility to retrieve radioactive material, and does so for 2000 hours0.0231 days <br />0.556 hours <br />0.00331 weeks <br />7.61e-4 months <br /> a year.

However, LLW disposed in a LLW disposal facility consists of source, byproduct, and special nuclear material as defined by the Atomic Energy Act of 1954, as amended.

Thus, deliberate intrusion for extraction of radioactive material would constitute possession of source, byproduct, or special nuclear material.

Such possession is prohibited without authorization pursuant to the Atomic Energy Act.

In the case of a LLW disposal facility sited on land owned by a state government, authorization would probably entail an application for, and approval of, a material or facility license.

Material extraction activities would be subject to the regulatory requirements of 10 CFR Part 20 (or state equivalent), and any exposures received by the deliberate intruder would be limited to those specified in Part 20, as reduced to levels as low as reasonably achievable (ALARA).

In the case of a LLW disposal facility sited on land owned by the federal government, extraction of radioactive material would be prohibited without specific authorization from the Department of Energy (or future equivalent agency).

Material extraction activities would be subject to the Department's regulations and orders.

Again, any exposures received by a deliberate intruder would be limited to those specified in the regulations and orders, as reduced to levels ALARA.

In either case, a deliberate intruder should be considered a radiation worker who is "adequately protected under regulations separate from those that apply strictly to disposal."

5.

6.

5 The report improperly cites EPA's draft LLW standard, 40 CFR Part 193, as justification for the 4 mrem/yr criterion used for the well water scenario.

This standard, which has never been proposed let alone promulgated, is only applicable for releases to the general environment -- that is, outside the boundary of the site.

This applies to EPA's draft requirement for protection of individuals (25 mrem/yr effective dose equivalent (ede)) as well as EPA's draft requirements for protection of groundwater.

The 4 mrem/yr standard cited in the report was abstracted from these latter requirements.

But the report then misuses the 4 mrem/yr limit by applying it inside the site boundary, to an illogical well water scenario.

If such a scenario is to be considered -- and other problems in logic could be overcome -- then the most appropriate dose criteria would be one that is orders of magnitude larger, to a level more in keeping with dose guidelines that have been used for inadvertent intrusion.

On page 2-3, the report cites 10 CFR Part 61 as a reference for "exposures to members of the general public as a result of other releases from the disposal facility other than to groundwater -- 25 mrem per year."

However, this statement is inaccurate.

First, the Part 61 limits in 10 CFR 61.41 and 61.43 definitely apply to releases to groundwater, and compliance with these limits would be assessed at the boundary of the disposal facility.

Second, unlike all the other dose limits cited in the report, the Part 61 limits are in terms of critical organ dose, not ede.

The limits are 25 mrem/yr to any organ except thyroid, which is limited to 75 mrem/yr.

The Part 61 limits incorporate an ALARA requirement.

7.

The report assumes that all intrusion occurs at 100 years following the end of disposal operations.

However, a 100-year delay time is too short; a minimum delay time would be on the order of 107 years.

More realisticly, an even longer delay time would probably be appropriate.

Assuming that the LLW disposal facility is licensed under Part 61 or an equivalent Agreement State regulation, the disposal facility operator must conduct a number of operations to formally close the disposal facility.

Closure must be accomplished in accordance with an application to the regulatory agency (10 CFR 61.27).

The regulatory agency must approve the application for closure and amend the disposal facility license (10 CFR 61.28).

The site closure process would probably require a minimum of two years to complete, and probably longer, considering the pace at which regulatory decisions are typically made.

After closure, the

8.

6 disposal facility operator must conduct a five-year period of post-closure observation and maintenance pursuant to 10 CFR 61.29 (and realistically, this period would probably take longer to complete).

After completing this activity the disposal facility license may be transferred to the site owner pursuant to 10 CFR 61.30.

However, license transfer would only take place after the site owner has finished its review and decision process for license acceptance, a process which may be expected to require some time to complete.

Only after license transfer should one assume the beginning of the active institutional control period.

Thus, the closure and observation and maintenance periods would require a minimum of 7 years to complete, and in all likelihood a considerably longer time -- perhaps 120 to 130 years.

This may seem like a small point, but as shown later, it significantly affects some of the conclusions reached by the report.

As another small point that can significantly affect some of the conclusions reached by the report, an additional delay period could be considered to account for decay of the radionuclides within waste disposed during site operations.

The analyses for the report are based on the assumption that an intruder contacts waste disposed during the last year of disposal operations, which minimizes the delay (and decay) time before the onset of the intrusion scenarios, and therefore maximizes calculated intruder doses.

But waste will not be disposed only during the last year of operation, but throughout the life of the disposal facility.

Assuming that the operating life lasts 30 years, waste disposed during the first year of operation will have decayed for 30 years by the end of operations.

This affects calculations for inadvertent intrusion.

Because inadvertent intrusion should be considered a random event, there is no reason to suppose that an intruder would be any more likely to contact waste disposed during the last year of operation than the first.

Therefore, one could consider an "effective" decay period during disposal operations to account for average concentrations of radioactive isotopes within the disposal facility at the time of scenario initiation.

This effective decay period would be added to the closure, observation and maintenance, and institutional control periods.

9.

To implement the inadvertent intruder scenarios, the report makes several fantastic assumptions that are critical to the results.

The report considers two inadvertent intrusion scenarios, and implements both at 100 years following the end of site operations.

For the intruder-constructor scenario, the intruder is assumed to penetrate 6.5 feet of

7 earthen cover, as well as 2.5 feet of reinforced concrete, and then contacts waste which is dispersed while the intruder constructs a house.

For the intruder-resident scenario, the intruder is assumed to live at the contaminated house, draw water from a contaminated well, and grow and consume crops grown in contaminated ground.

Neither scenario is credible.

First, the disposal facility is to be designed to be largely above-grade, which means that after closure, the disposal facility would resemble a flat-topped hill having sloping sides.

One would expect that the regularity of the hill --

the perfectly flat top and the evenly sloping sides -- plus other features such as markers and monuments would suggest to an intruder that the hill was a product of man rather than nature.

Yet the report assumes that the intruder questions nothing, but chooses to build a house on the hill, ignoring easier (and less expensive) construction elsewhere.

Second, the report ignores the fact that the waste has been disposed within a highly engineered concrete structure which has been specifically designed and constructed to exclude water from the waste.

In fact, the report assumes elsewhere that the concrete structure develops no cracks or any other imperfections for a period of 300 years.

This means that not only is the concrete structure still completely intact at the time of the 100-year intruder scenarios, but the waste would in all likelihood also be intact.

One would find intact containers of waste should excavation into the disposal facility actually occur.

But nonetheless, the report assumes that an inadvertent intruder -- without having the slightest notion that anything was amiss -- digs through the 2.5-foot thick concrete cap and disperses large pieces of concrete throughout the area of construction, as well as containers of waste.

(The pieces of concrete and waste would, incidently, include items weighing hundreds of pounds.)

Then the intruder is assumed to build a house on the waste containers and concrete rubble and grow tomatoes in it.

And apparently, considering the description of the scenario in the report and in the PATHRAE-EPA reference, the intruder doesn't even bother to pour a concrete slab or install any other flooring which would attenuate gamma radiation.

And besides that, the intruder is assumed never to leave the site.

Rather, he squats amidst the dirt, waste, and concrete rubble for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, 365 days a year.

Presumably he never leaves the basement so he can always be closest to the source of radiation.

These are scenarios that would not be plausible even on "The Simpsons."

8

10.

The RAE report is certainly not clear about how intruder doses are to be determined for Class Band C wastes.

On page 3-9 the report indicates that the cover is 12.5-feet thick over the Class Band C waste disposal units, and apparently consists of a reinforced concrete cap as well as soil.

The report further goes on to say that for the intruder-constructor scenario, "no waste is excavated during construction of a home over these [Class Band C disposal units]."

On the next page, for the intruder-resident scenario, the report again indicates that basement construction does not extend into disposed Class Band C wastes.

11.

If this is the case, then why are doses from dust and food pathways calculated for the two intruder scenarios for Class Band C waste streams?

If the waste is not contacted, then there is no mechanism for the pathways to occur.

The report mentions nothing about the possibility of a water well contacting the waste.

In fact, the report emphasizes that the water well scenario involves a well placed to the side of the waste.

In addition, if exposures to gamma radiation were to occur for Class Band C wastes under the conditions of these scenarios, exposures would only occur from radiation which has been attenuated through a layer of soil and concrete.

Has this been considered in the report?

In any case, such putative exposures could be significantly reduced merely by increasing the thickness of either the soil or reinforced concrete cover.

Finally, it might be recalled that when constructing a house, floors are usually installed.

Most modern homes are constructed so that one doesn't stand around in the dirt.

Any flooring in the house would further attenuate radiation doses.

The water well scenario incorporates an additional set of unfortunate assumptions.

First, as noted above, the water well is assumed to be located onsite, as opposed to offsite, and its location would be more in keeping with an intruder scenario.

(The report chooses inappropriate dose limits.)

Second, the water well is located so close to the waste that it can only be installed by drilling on or near the side of a hill.

Why wouldn't a well be drilled at a location lower in elevation, where the distance to water would be less, and drilling would be less expensive?

Third, and most importantly, the assumptions are such that there is no way that sufficient water could be withdrawn from such a well to make it useful.

9 The screened part of the well is assumed to be located only a meter below the bottom of the waste and a meter to one side, which means that the well would be withdrawing water from the vadoze zone rather than the aquifer (assuming the disposal site is sited in compliance with 10 CFR Part 61).

This wouldn't be a terribly efficient way to withdraw water sufficient for a family farm.

But nonetheless, "no account was taken of dilution in the groundwater system that would otherwise reduce the projected consumption of radioactive contaminants and the resulting radiation exposures" (p. 2-5 of the report).

In a September 21, 1992, letter to the Commission, the author of the study indicates that "only leachate from the bottom of the disposal unit is withdrawn."

In other words, an intruder is assumed to hire a drilling contractor to drill a well (at no small expense) and instructs the contractor to deliberately drill a well that could provide only a very small amount of water, even though the intruder wants to use the water to supply household needs, water a garden, feed cows and goats, and so forth.

And the intruder is assumed to never bother to check the water for hardness or contaminants.

Recall that the intruder is assumed to drink on a daily basis, two liters of pure leachate -- water that has been in contact with cement, metal drums and waste.

One would expect that such water would be considerably tainted and unfit for consumption.

Perhaps the assumption is that the intruder completely lacks a sense of taste.

12.

We don't completely understand how the report uses the water well scenario to determine that the six waste streams "contain significant levels of long-lived radionuclides."

In the report analysis, is the entire disposal site assumed to be filled with a single waste stream, or is the total quantity of each waste stream assumed to be consistent with that projected over the life of the disposal facility?

This critical detail is not provided, although we suspect the former situation.

NRC should recognize that one cannot compare concentrations within different waste streams without also considering the quantities of each waste stream.

This is because scenarios involving water pathways depend on the quantity of the radionuclide rather than its concentration, and because impacts at a real site would be governed by all the waste in the site (the entire radionuclide inventory).

Consider the following example:

One waste stream consists of 1000 m3 of waste at a concentration of 1 Ci/m3, while the second waste stream consists of 10 m 3 of waste at a concentration of 10 Ci/m 3

The second waste stream contains radionuclides in higher concentrations than the first, but

10 represents a smaller inventory and, all things assumed equal, a smaller potential for hazard.

Because of these considerations, the well water scenario as used in the report probably lacks usefulness as a screening mechanism.

A much more appropriate and useful approach would be to assume disposal of all waste in the site, in the correct projected quantities, and then identify those waste streams that provide the largest fraction of the well water dose.

And because one is conducting an abstract comparison rather than a site-specific analysis, a far better approach would be to normalize the results.

Given the lack of consideration of site-specific environmental conditions, and the conservative assumptions, the calculated doses mean nothing in and of themselves, but only in comparison to one another.

(Even in this case, one would have to be careful about how the results are interpreted, because the comparisons would still be significantly influenced by the analyses assumptions.

Even in a comparative analysis, if the assumptions that go into the analysis are non-credible, then one must suspect the reliability of the comparisons.)

Assuming that the screening analysis provided reliable information, one would have identified the most significant waste streams and radionuclides.

The next step would, for an actual site and for realistic assumptions and scenarios, determine whether regulatory dose limits might be exceeded.

If so, then mitigative measures could be considered for the significant radionuclides and waste streams (as in limiting the quantity of that waste stream in any single disposal site, or in improved waste packaging).

13.

Similarly, the manner in which the report considers intrusion also significantly detracts from use of the intrusion scenarios as screening mechanisms.

We have already addressed some of the many fanciful assumptions inherent in the intruder analyses, and which significantly detract from any comparison that made be made among the waste streams.

Once again: If the analysis is based on fanciful assumptions, then the analysis results are also fanciful, and one must question whether any comparisons based on the results may be considered to be reliable.

It is also important to recognize that if one is to calculate hypothetical intruder doses as a function of individual waste streams, then these doses depend on radionuclide quantities as well as radionuclide concentrations.

Under the scenarios, the intruder is assumed to contact a relatively large amount of waste.

This assumption is inherent in the assumption that the waste is

11 contacted from an activity such as construction of a basement.

The report provides no details of the analyses but for the intrusion scenarios considered for the Part 61 draft EIS, about 230 m 3 of waste was assumed to be excavated (Ref. 3).

This amount of waste is far larger than any single container of waste.

It also means that a large number of different waste streams would also be probably found within this volume, and there is no basis for the assumption of any other distribution than a random one.

To illustrate, assume that 230 m3 of excavated waste consists of 30 m3 of resins at a concentration of 5 Ci/m3,

as well as 200 m 3 of dr~ active waste (DAW) at a concentration of 1 Ci/m.

The total radionuclide inventory is 350 Ci.

Thus, all factors being equal, even though the radionuclide concentration in the resins exceed that in the DAW by a factor of five, 60% of the activity in the excavated waste is provided by the DAW, making the DAW more "hazardous" to the intruder than the resins.

This means that a strict comparison of dose among the different waste streams, as presented in the report, has only limited usefulness.

The relative "hazard" of a waste stream depends on its volume as well as its radionuclide concentration and distribution.

A more appropriate approach would be to normalize calculated doses and then determine which waste streams contribute the largest fractions of the dose according to considerations such as volume and a random mixture of waste within a disposal unit.

(However, one must take into account the segregation of Class A waste from Class Band C wastes.)

14.

In the report, six waste streams are determined to "contain significant levels of long-lived radionuclides" because of a putative risk of exposure to C-14, where comparison is made to a dose limit of 4 mrem/year.

Waste streams and calculated C-14 doses are listed below:

Waste Stream Class A Condensate Phase Separator Resins Class B Condensate Phase Separator Resins Class B Reactor Water Cleanup System Resins Class C Non-Fuel Reactor Components Class A Decontamination Resins Class A Reactor Vessel Internals Dose (mrem/yr) 22.9 542 179 20.7 8.76 5.02 Of these streams, at least four would not be considered to "contain significant levels of long-lived radionuclides" if a more appropriate dose guideline was used, one in the range of a dose limit for an inadvertent intruder.

At least two of the calculated doses are not significantly larger than 4 mrem/yr, and two other calculated doses are also reasonably close.

12 But most importantly, the designation of the six waste streams as containing "significant quantities of long-lived radionuclides" is an artifact of the analysis assumptions, which are overly conservative.

We have already noted that an individual is assumed to drink undiluted leachate.

(However, nowhere does the report indicate how much water this might be.)

We also note that the assumed water consumption rate is 2 L/day, although EPA's Science Advisory Board has suggested that a more realistic daily average would be about 0.66 L/day (Ref. 4).

In addition, we note that although the report assumes that all C-14 is released to the groundwater pathway, considerable C-14 would be expected to be released from a disposal facility as a gas.

EPA, in fact, estimates that about 2/3 of the C-14 within a LLW disposal facility would be released as a gas (Ref. 5).

Merely by choosing other reasonable assumptions, much lower exposures could be calculated, and fewer waste streams would be designated as "long-lived."

For example, assume that the leachate is diluted by an arbitrary factor of five, 1/3 of the C-14 is actually released to the groundwater pathway, and the individual is assumed to drink a more realistic average of 0.66 liters of water per day.

In this case, calculated C-14 doses would be reduced by a factor of about

45.

In this case, calculated doses for only one of the above six waste streams would exceed 4 mrem/yr, and only one would be deemed to "contain significant quantities of long-lived radionuclides."

15.

An ill-considered conclusion pertains to the statement that Co-60 and Cs-137 are present in waste "... in sufficiently high concentrations that they represent potential hazards at future times when intrusion scenarios must be postulated.

Despite the preoccupation of Vermont Act 296 with long-lived radionuclides, this evaluation has identified the hazard of these short-lived radionuclides as appropriate justification for examining the possibility of separating waste containng them from other waste."

As discussed below, this conclusion is merely an artifact of the particular set of assumptions made for the report.

The conclusion is particularly inappropriate for Co-60, which has a 5.26-year half-life.

The report found that one waste stream containing this radionuclide exceeded the 500 mrem/yr criteria assumed (incorrectly) for the deliberate intrusion scenario.

The report calculated 907 mrem from a postulated exposure to Class C non-fuel reactor components which takes place 100 years after the end of site operations.

However, if one delayed the onset of the scenario for only a few years the calculated doses would

13 fall to levels below the 500-mrem criterion.

As noted in comment 7, for a disposal facility licensed under a regulatory program compatible with that of NRC's, a site closure period would follow site operations, as well as a site observation and maintenance period.

Because these periods would probably last a minimum of 7 years, a delay time of 107 years should be the minimum considered, assuming for the moment that the deliberate intrusion scenario is appropriate for consideration (which it isn't).

A delay time of 107 years would reduce calculated doses from Co-60 by a factor of about 2.5, from 907 mrem/yr to about 360 mrem/yr.

This, of course, neglects any likely delays during the period before the onset of institutional controls, and neglects radionuclide decay during site operations (see comment 8).

Combining these two considerations, one could envision a total delay time up to about 140 years, which would reduce Co-60 doses to about 5 mrem/yr.

So for Co-60, a small variation in the timing that the scenario is assumed to occur has a significant effect on the results.

This does not appear to be a salient attribute of a long-lived radionuclide.

Regarding Cs-137, we note two scenarios where this isotope is presumed to exceed dose criteria.

We have already noted that the deliberate intrusion scenario is not appropriate as formulated in the report.

For the intruder-resident scenario, the report determines that Class B condensate phase separator resins could result in an annual dose of 254 mrem, where exposure is again assumed to occur 100 years after the end of site operations.

We have already commented on the leaps in illogic inherent in the assumption that the intruder-resident scenario would occur in the manner assumed in the report.

We again call attention to the ease by which exposures could be attenuated merely by increasing the thickness of the assumed shielding.

In particular, we note that if one assumes that the scenario occurs at about 140 years following the end of site operations, rather than ioo years, the 100 mrem/year dose criterion would not be exceeded.

This suggests that for Cs-137, like Co-60, a small variation in the timing that the scenario is assumed to occur makes a critical difference in the results.

This again does not appear to be an attribute of a long-lived radionuclide.

Thus, the report provides few insights about the hazard of Co-60 and Cs-137 in the wastes under consideration for disposal in Vermont.

14 REFERENCES

1.

Rogers, V. and C. Hung, "PATHRAE-EPA:

A Low-Level Radioactive Waste Environmental Transport and Risk Assessment Code," EPA 520/1-87-028, U.S. Environmental Protection Agency Office of Radiation Programs, December 1987.

2.

Roles, G.W., "Characteristics of Low-Level Radioactive Waste Disposed During 1987 Through 1989," NUREG-1418, U.S. Nuclear Regulatory Commission, December 1990.

3.

U.S. Nuclear Regulatory Commission, "Draft Environmental Impact Statement on 10 CFR Part 61, Licensing Requirements for Land Disposal of Radioactive Waste," NUREG-0782, Office of Nuclear Material Safety and Safeguards, September 1981.

4.

U.S. Environmental Protection Agency, "National Primary Drinking Water Regulations:

Radionuclides," Federal Register, 56 FR 33054, July 18, 1991.

5.

Gruhlke, J., et al., "Estimates of the Quantities, Form, and Transport of Carbon-14 in Low-Level Radioactive Waste," EPA 520/1-86-019, U.S. Environmental Protection Agency Office of Radiation Programs, September 1986.

Average Radionuclide Concentrations in Commercial LLW in 1990 This paper presents average concentrations of the radionuclides listed in 10 CFR 61.55 for low-level waste (LLW) disposed in 1990 in commercial LLW disposal facilities.

The concentrations are listed as a function of waste class, pursuant to 10 CFR 61.55, and LLW disposal facility.

Data is presented for the three principal commercial disposal facilities operating in the US:

the Chem-Nuclear Systems, Inc. disposal facility located near Barnwell, SC, and the U.S. Ecology Inc. disposal facilities located near Beatty, NV and Richland, WA.

The data for this paper was obtained from the disposal facility operators, and represents a compliation of data reported on manifests accompanying shipments of LLW to the disposal facilities during calendar year 1990.

Table 1 presents average concentrations (in units of Ci/m 3

) which were determined by dividing the total radionuclide activity reported for a Part 61 waste class by the total volume reported for that waste class.

The citation for TRU represents the sum of alpha-emitting transuranic radionuclides having half-lifes exceeding five years.

Comparisons with Part 61 Class C limits are provided in Table 2, assuming an average waste density of 2 g/cm 3

In most cases, the average concentrations are more than an order of magnitude below the Class C limits for the radionuclides.

Apparent exceptions to this generalization include Class C disposal of C-14 and transuranic radionuclides at Beatty, where average activities in Class C waste averagedi respectively, 3.5 and 0.046 Ci/m3

• 1 The comparison is uncertain for radionuclides normally found in activated metals, particularly Ni-63.

(Ni-63 generally has the most influence over the classification status of activated metal wastes, but is also frequently reported in other waste stre~ms.)

We currently lack data about the actual distribution of Ni-63 within activated metals and other waste streams during 1990.

However, at the Richland and Beatty sites, activated metals are normally disposed mingled with other waste forms.

But at 1However, only 2400 cubic feet of Class C waste were disposed at Beatty during 1990, and this Class C waste would have been disposed mingled with Class B waste and stable Class A waste.

This would reduce radionuclide concentrations over the mass of stable Class A, B, and C wastes (C-14 and transuranic concentrations as averaged over combined Class Band C wastes are 2.3 and 0.015 Ci/m 3

, respectively).

In addition, disposal trenches at Beatty are typically dug to depths greater than 50 feet, as are disposal trenches at the Richland commercial facility.. Thus, we would expect that Class C waste at these disposal facilities would be disposed at a greater depth than at Barnwell.

2 Barnwell, activated metals emitting very high levels of radiation are normally disposed in a separate slit trench.

Ni-63 concentrations in waste in the slit trench may be relatively close to the Class C limits for activated metals.

Lower activity activated metals may be disposed in a trench mixed with other Class B, C, and stable Class A wastes.

Evidence suggests that the concentrations of many of the long-lived radionuclides listed in the tables are overreported.

Tc-99 and I-129 are reported mostly in waste from nuclear power reactors, and as such, are routinely overreported (Ref 1).

So apparently is C-14 in nuclear reactor waste (Ref. 1), although most C-14 in commercial LLW is reported by generators other than nuclear reactors (Ref. 2).

As observed in reference 1, quantities of these radionuclides are determined in reactor waste by periodically sampling waste and developing scaling factors to scale the radionuclides to easy-to-measure radionuclides such as Cs-137 or Co-60.

Because of limitations in the sensitivity of measurement techniques, the scaling factors normally used in the nuclear industry generally greatly overestimate quantities of these radionuclides.

This situation has persisted because these radionuclides never influence the classification status of the waste from nuclear reactors (but are important on an inventory basis at a disposal facility).

Relatively little transuranic activity is reported in commercial LLW, where consistent with 10 CFR Part 61, transuranic activity refers to alpha-emitting transuranic radionuclides having half-lifes exceeding five years.

In 1990, nearly 70% of the transuranic activity in commercial LLW consisted of Am-241, and nearly all of the Am-241 activity was disposed at the Beatty facility.

This Am-241 activity is most likely contained in scrap from sealed source and device manufacturers.

Transuranics in scrap waste are prohibited from disposal at the Barnwell facility.

For shipment to Barnwell, operators of nuclear power reactors must report trace quantities of transuranic isotopes -- generally plutonium isotopes -- that might appear in waste.

The total quantities of transuranics reported in shipments to Barnwell probably repres~nt overestimates, for the same reasons that cause I-129 and Tc-99 to be overreported.

The reported inventory of Ni-59 also appears to be large, particularly at the Barnwell site.

We cannot address this issue in detail without a knowledge of the radionuclide inventories specifically within activated metals.

Nonetheless, we can compare the total reported inventories of Ni-59 and Ni-63 reported in LLW delivered to the Barnwell site within the last few years, as well as the total reported inventories in all activated metals delivered to the Barnwell site.

Data for the years 1988 and 1989 were obtained from reference 2:

Ni-59 Activity (Ci)

Ni-63 Activity (Ci)

Metal Activity (Ci) 3 1988 4.968E+l 8.431E+3

1. 508E+5 1989 6.952E+l 2.827E+4 6.413E+5 1990 1.660E+2

1. 630E+4 3.772E+5 We would not expect a precise correlation between the total Ni-59 and the total activated metal activities, nor a precise correlation between the total Ni-59 and Ni-63 activities.

Nonetheless, we find it strange that the reported Ni-59 activity would dramatically increase between 1989 and 1990, while the Ni-63 and total activated metal activities would both decrease.

REFERENCES

1.

Robertson, D.E., et al, "Concentrations and Behavior of I-129, Tc-99, and C-14 in Low-Level Radioactive Wastes from Commercial Nuclear Power Stations," from proceedings of Waste Management '91, Tucson, Arizona, February 24-28, 1991.

2.

Roles, G.W., "Characteristics of Low-Level Radioactive Waste Disposed During 1987 through 1989," NUREG-1418, U.S. Nuclear Regulatory Commission, December 1990.

- j

4 Table 1.

Average Radionuclide Concentrations (Ci/m3 )

in Commercial Waste for Part 61 Radionuclides Nuclide & Site Barnwell Class A Class B Class C C-14 Cm-2 142 Co-60 Cs-137 H-3 I-129 Nb-94 Ni-59 Ni-63 Pu-241 Sr-90 Tc-99 TRU (a)

Richland C-14 Cm-242 Co-60 Cs-137 H-3 I-129 Nb-94 Ni-59 Ni-63 Pu-241 Sr-90 Tc-99 TRU (a)

Beatty C-14 Cm-242 Co-60 Cs-137 H-3 I-129 Nb-94 Ni-59 Ni-63 Pu-241 Sr-90 Tc-99 TRU ( a) a:

Sum of having 2.13E-03 2.95E-06 1.56E-Ol 2.94E-02

1. OlE-02 1.43E-05 1.72E-06 2.68E-04 1.25E-02 3.25E-04 2.66E-04 6.24E-05 3.82E-05 1.03E-02 5.30E-07 8.79E-02 7.76E-03 1.28E-Ol 1.89E-06 5.65E-07

1. 98E-05 5.64E-03 5.77E-05 1.13E-04 8.0SE-05 7.98E-06 2.33E-02 8.02E-05 1.07E+Ol 2.53E+OO 1.49E+Ol 4.96E-05 5.89E-04 6.66E-02 3.32E+OO 5.95E-03 1.57E-01 7.lSE-04 3.35E-04 4.09E-02 2.49E-05

1. OSE+Ol 6.83E+OO 1.47E+03 2.l?E-05 1.22E-02 2.24E+OO 3.99E-03 5.00E-02 8.35E-03 2.16E-04 2.45E-01

1. OlE-03 9.37E+02 2 1.28E+Ol l.OlE+OO 8.09E-05 4.43E-04 6.46E-01 7.55E+Ol 3.19E-02 2.24E+Ol 2.18E-02 1.85E-03

1. 07E-01 3.63E-05 5.14E+OO 4.87E+OO 1.74E-02 1.16E-03 6.06E-03 6.75E+OO 5.48E-02 7.29E+OO 1.44E-02 4.04E-03 2.23E-03 9.53E-04 3~51E+OO 3.54E-06 6.73E-07 5.21E-05 6.30E-Ol 7.46E+OO 6.81E-01 5.74E-03 7.63E+OO 3.14E+Ol 6.21E-02 1.24E+02 2.66E+OO 4.33E-06 2.83E-06 9.75E-06 8.93E-06 1.48E-04 4.0SE-05 1.41E-04 1.48E-08 9.79E-03 1.89E-02 3.30E-01 2.43E-05 3.39E-05 1.17E-02 3.53E-04 6.92E+OO 3.15E+OO 8.31E-05 2.31E-06 1.66E-02 2.95E-06 1.16E-05 4.60E-02 alpha-emitting transuranic radionuclides half-lives exceeding five years.

5 Table 2.

Comparison of Class C Concentrations with Part 61 Class C Limits Fraction of Limit Nuclide Class C Limie Barnwell Richland Beatty C-14 8

3.06E-02 1.34E-02 4.39E-01 (80) 3.06E-03 1.34E-03 4.39E-02 Cm-242 20,000 2.53E-05 9.l0E-07

1. 31E-06 Cs-137 4600 4.96E-03 1.06E-03 6.83E-03 I-129 0.08

1. 0lE-03 1.45E-02 1.22E-04 Nb-94 (0.2) 2.22E-03 7.40E-04 Ni-59 (220) 2.94E-03 2.75E-05 6.73E-11 Ni-63 700

1. 08E-0l 9.64E-03 4.71E-04 (7000) l.08E-02 9.64E-04 4.71E-05 Pu-241 3500 4.56E-03 7.85E-03 1.67E-03 Sr-90 7000 3.20E-03 1.04E-03 4.S0E-04 Tc-99 3

7.27E-03 4.80E-03 5.53E-03 TRU ( C) 100 9.25E-03 2.02E-02 2.30E-0l

a.

Limits are in units of Ci/m3 except for Cm-242, Pu-241, and TRU, which are in units of nCi/g.

Limits in parentheses indicate limits for activated metals.

b.

Tabulated values were determined by dividing average Class C concentrations in Table 8 by Class C limits.

An average waste density of 2 g/cm3 is assumed for Cm-242, Pu-241, and TRU.

c.

Sum of alpha-emitting transuranic radionuclides having half-lives exceed_ing 5 years.

10109192 14:54 B DUPONT MERCK PHARMACEUTICAL 8 NO.203 P0021006 MIXED WASTE A GENERATOR'S COMMENTS Jeanne K. Krieger The Du Pont Merck Pharmaceutical Company Compounds labeled with carbon-14 and tritium are used worldwide as tools for fundamental research in academic biochemical and medical research laboratories. Mixed waste, waste that is both hazardous and radioactive, 1s generated in the manufacture of these vital products.

Application of innovative waste minimization strategies will continue to reduce the volume of waste, but not eliminate it. As long as radiolabeled compounds are synthesized, mixed waste will be generated and disposal or treatment capacity will be needed.

To assure the continued availability of compounds labeled with radioisotopes for research purposes common resolution of the mixed waste dilemma is required.

THE IMPACT OF MIXED WASTE ON MEDICAL RESEARCH The continued availability of compounds labeled with carbon-14, tritium sulfur-35 and phosphorous-32 is essential for maintaining the quality of our health care system.

If one examines the Nobel Prizes awarded in Medicine and Physiology for the past 15 years, the work in ten of those years could not have been done, 1f 1t were not for the availability of compounds labeled with rad1oact1vtty.

10109192 14:55 8 DUPONT MERCK PHARMACEUTICAL 8 MIXED WASTE REQUCTION PROGRAM$

NO.203 P0041005

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Three strategies have been applied to mixed waste volume management:

reduction at source, waste minimization and treatment. Treatment implies either making the material non-radioactive, an approach that is impractical due to.the dilute nature of the waste stream, or making the material non-hazardous.

The latter can be achieved, in principle, by either solidification or thermal degradation.

Implementation of a thermal degradation program requires a RCRA Class B Permit, a process that 1s slow, expensive and fraught with uncertainty. The labeled chemicals' industry has demonstrated solid waste management practices.

Mixed waste treatment initiatives ar.e being frustrated by the restrictive regulatory requirements.

APPROACHES TO RESOLUTION OF THE MIXED WASTE DILEMMA Either relief from the restrictive regulatory environment can be sought by allowing the primary hazard to dictate the predominant regulatory framework, or innovative approaches to securing treatment or disposal capacity can be defined. Consider first the approaches to regulatory relief by regarding the waste stream as a function of the activity.

One portion of the waste stream, namely that which 1s exceedingly low 1n radioactivity may be regarded as de minjmys as a radioactive hazard and regulated for 1ts chemical toxicity alone.

10109192 14:55 6 DUPONT MERCK PHARMACEUTICAL 6 NO.203 P005!006 Similarly there is a fraction which contains relatively ins1gn1f1cant quantities of organics.

For th1s stream the EPA should promulgate de m1n1mys regulations and the body of radioactive regulations should prevail.

Lastly, there is the fraction of the waste stream from the synthesis of labeled chemicals which contains both significant activity and significant radioactivity. For this waste stream, the regulations embedded in 10CFR61 are adequate for protection of the public and the enviro~ment. Additional testing, leachate barriers or double containment provide no additional benefit to the public.

Compounds labeled with radioactivity are used,1n medical research and fundamental biochemical studies because of their exquisite sensitivity. lhe energy of decay allows radioactive substances to be detected at concentrations far below those that can be detected by standard chemical and physical techniques.

The regulation of I0CFR61 provides the means to contain the rad1oact1v1ty; it certainly provides the barriers to contain the chemical hazard.

If regulation of the significant hazard does not prevail, innovative alternatives for the development of treatment or disposal capacity need to be developed. Capacity can be provided by the private sector, by intervention of the states or by the federal government.

As long as we continue to benefit from the medical advances associated with the manufacture of compounds labeled with radioactivity, there will be a need for thoughtful resolution of the mixed waste issue.

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Box 545, Brattleboro, Vermont 05302 Phone (*1'*0336 DCC~<~, 'UMBER

. -~? October 26, 1992 Mark Haisfield PE71flOf 1 ~ULE PRM tfJ-i,.~

• 92 NOV -9* PS :39 Office of Nuclear Regulatory R~sp~nse (S7 FR, 3 :;_ 7 '-f i)

U.S. Nuclear Regulatory Comm1ss1on

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To whom it may concern:

Thank you for sending the twelve comments received by the Nuclear Regulatory Commission prior to October 13. We assume that you will continue to forward comments as you receive them. In this letter, I will respond to the comments, in the order that they are numbered and packaged, except for those of Robert Baird of Rogers and Associates and Wade Williams. In those two cases, we refer you to our letter dated October 14. We will utilize a numbering system which we should have adopted in the first letter.

We begin with David Hall:

Hall 1) While we agree that Congress has done a poor job of defining the categories of "low-level" waste and "high-level" waste, we also recognize that these definitions are codified in statute. For this reason, they cannot be changed by the NRC, and our petition does not make this request. Our petition is directed only to the classifications of "low-level" waste, which are within the purview of the Nuclear Regulatory Commission.

Next, Christopher Halladay of the Vermont Low-Level Radioactive Waste Authority:

Halladay 1) Mr. Halladay alleges that "The reasons advanced by the Coalition in support of its petition are based in large part on a study done for the Vermont Low-Level Radioactive Waste Authority by Rogers and Associates Engineering Corporation." Not so. The main points in our petition -- the change in dose standards, the question of facility cost comparisons, and the question of intrusion scenarios -- are based on our review and analysis of the NRC literature, as the copious footnotes in the petition show.

We cited the Rogers study in footnote 38 and on page 14 for what is clearly stated as a hypothesis ("It is probably not coincidental that... "): namely, that the 10% of the waste stream mentioned in the DEIS (Vol 2, 4-63 and Vol 1, p. 14) may well be the same portions of the waste stream identified in the Rogers report. We are perfectly happy to leave to the supple-mental EIS the task of either verifying or falsifying our hypothesis.

We also cited the study in support of another explicitly hypothetical statement: "if some of what were hitherto considered "non-credible" scenarios were to be actualized, a near-sur-face facility... would fail.... there is the very real possibility that.... " In this case too, whether the hypothesis is correct or not is not central to the basic merits of our petition.

These are the only places in the petition where the study is used. The petition is care-fully footnoted to document our other sources.

We continue to feel that we have properly cited and utilized the "Identification" study, as we noted at length in our responses to Robert Baird's comments.

In any case, the "Identification" report should not become a diversion from the main points raised in our petition: namely, whether there is "new" and "significant" information meriting 1

Educating the Public i n Clean Alternativ e s to Nuclear Pow e r

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the preparation of a supplemental EIS.

Halladay 2) Mr. Halladay's other comments have no bearing on our petition at all.

We have no comments on the letters of Donald G. Doran and Susan Hiatt of OCRE, which are supportive of our petition. Our next observations concern the comments of the California Radioactive Materials Management Forum:

Forum 1) "Waste streams as [currently] defined... are currently disposed of safely.... " The letter provides no factual support for this statement. Four points are worth noting in response.

First, it is now acknowledged that there has been leakage of radionuclides at the Barnwell facility. 1 Second, as noted in our petition, workers at the Beatty, Nevada site re-moved radioactive tools from the facility and used them offsite. (Footnote 9 of our petition documents this incident.)

Third, but most importantly, the oldest of the three current sites has now contained waste for 20 out of the 500 years of its design life (i.e. 4 % ), so all are in their infancy. Yet already, two of them have experienced some degree of failure. Even if we ignore these ble-mishes in the historical record, pronouncing these sites successful at this time is like touting the triumph of the Titanic after the first day of its voyage. The verdict on these sites belongs to future historians, not to us.

Finally, the safety of existing sites (none of which was licensed under Part 61) misses the philosophical point on which the original EIS was correctly based: "Since it is not possible to control today what may happen several hundred years in the future, NRC is controlling the concentration of waste disposed of today.... " (NUREG-0945, Vol. 2, B-40). The issue raised in the petition is not the short operating record of existing facilities, nor futuristic projections of what that record will look like in four or five centuries, but rather whether or not today's concentration limits are adequate. In sum, the commenter's point is without factual basis and largely irrelevant.

Forum 2) On the question of orphan waste, please see Ecology 2 below.

Forum 3) "We regard the petition as a transparent attempt to interrupt ongoing efforts in a number of states and compacts to develop new LLRW disposal facilities.... " The Forum is free to regard our petition as it wishes. We cannot read their minds; we wish they would refrain from trying to read ours.

Our petition grows out of our ongoing effort to constructively monitor and participate in one of the siting processes to which the Forum refers. As we have noted previously, and as OCRE's letter also suggests, we believe that our petition is more likely to facilitate siting ef-

1. U.S. Geological Survey, "Hydrology of the Low-Level Radioactive Solid Waste Burial Site and Vicinity Near Barnwell, South Carolina,"Open File Report 82-863, Reston, VA, 1982, p.

77; J. Cahill, "Movement of Radionuclides in Unconsolidated Coastal Sediments at the Low-Level Radwaste Burial Site Near Barnwell, South Carolina," Proceedings of Waste Manage-ment '82, Tucson, AZ, 1983, vol 2. pp. 357-368; A. Daniel, "Tritium Leak Found at Chem-Nuclear," Augusta Chronicle, Augusta, GA, Feb. 1, 1992, p.1.

2

forts than to impede them.

Next US Ecology:

Ecology 1) "The petition is instead based largely on a misreading of 10 CFR Parts 20 and 61.... " In the specific instances these comments address, it is US Ecology, not our petition, which misreads the cited documents.

Ecology 2) US Ecology believes that: "A decision to lower the Class C limits would create a "de facto" orphan waste category." This blanket proposition is based on a number of unstated suppositions.

First, it is quite clear that any waste reclassified in 1992 would remain a state respon-sibility, precisely because the Low-Level Radioactive Waste Policy Amendments Act of 1985

("LLRWPAA85") refers specifically to NRC classifications as of January 26, 1983. Nothing in our petition suggests a transfer of responsibility. Thus, regardless of any action the Nuclear Regulatory Commission may take concerning our petition, all waste currently classified as "low-level" would remain a state responsibility unless Congress revises the LLRWPAA85.

Presumably, US Ecology added the phrase "de facto" to its sentence because "de jure," no such "orphan waste" category would exist.

The notion of "orphan" waste is also predicated on the assumption that the states will opt to build new near-surface facilities for the rest of the waste, thus leaving this reclassified waste as "an orphan." In that case, the states would be required either to provide storage or to create disposal solutions -- probably geological facilities -- for this new class of waste. Since the volume of material involved is very small, interstate compacting is also a possibility.

Still, these are not the only feasible options. States could opt not to utilize near-surface facilities for the remainder of the waste stream either, thus adopting a different strategy for handling all of the waste. This option is especially viable in states which have made little siting progress, and also in states where near-surface hydrology is problematic (e.g., all of the states in the "humid" east). We have no way of foretelling which strategies states will choose, but neither does US Ecology.

In sum, the notion of "orphan waste" is a speculative one at best.

It is true, as the letter notes in its comment #5, that "no specific... regulations exist" for disposal of "low-level" waste in anything other than near-surface facilities. We note first that we are not the cause of this state of affairs, and second, that the NRC has repeatedly stated its intention to develop alternative regulations if necessary. (See 10 CFR 61.50 (b),

NUREG/CR-3774, Vol. 1, pp. 1-3, NUREG-1213, pp. 1-3 and ff., NUREG-1241, etc.)

Ecology 3) Comment #1 on page 2 of the US Ecology letter neatly evades the point. We are well aware that the NRC specifically chose not to "set out a specific [dose] limit in the perfor-mance objective," since such a limit would be "essentially impossible to monitor against and ensure compliance." (NUREG-0945, Vol. 2, B-40) This however does not imply that the Part 20 dose limits "are not germane."

On the contrary, NRC is quite explicit in stating that "NRC's selection of the 500 mrem limit was based on... (2) its acceptance by national and international standards organizations (e.g., ICRP) as an acceptable exposure limit for members of the public; and (3) the results of 3

analyses presented in Chapter 4 of the draft EIS." (same, B-41) The assertion that the stated basis of a regulation is "not germane" to the regulation is clearly absurd.

Ecology 4) Comment #2 admits that "cost comparisons were considered in NRC's supporting documentation," but then argues that "they were never the primary consideration." We never said they were. There are hundreds of pages of analysis in the original EIS, and it would be difficult to specify the primary consideration.

Our petition correctly argues that cost considerations were one of the bases for the original EIS, that they were a factor in the waste classification system, that the factual basis for the cost comparisons has changed, and that therefore a new analysis is required.

Ecology 5) Comment #3's statement that"... there is no [explicit] statutory requirement for intruder protection analysis... " is true as far as it goes, but it doesn't go very far.

First, NRC is required by statute to protect the health and safety of the population; there is no statutory exclusion for intruders. Second, the NRC is required by statute (NEPA) and its own (Part 51) and other (CEQ, etc.) regulations to perform an EIS when issuing a regulation like Part 61. Third, the courts have ruled that when an EIS is required, a supple-mental EIS must be filed when "new" or "significant" information is presented. Our petition presents such information, and details why it meets the courts' definitions of the terms "new" and "significant." This comment presents no basis for challenging our reasoning, except through invalid inference.

Ecology 6) Comment #4 is largely true, but totally irrelevant.

Ecology 7) We did not at all miss "the systems approach to waste management" in Part 61.

On the contrary, our petition assumes, as does NRC, that waste classification is a key compon-ent to proper waste management. We then examined the basis for the existing waste classifica-tion system, and noted that new information is available since the original EIS was formulated.

Ecology 8) For just this reason, we do not agree that "The proper place for the petition's concerns to be raised is during licensing proceedings on specific, proposed facilities and how intruder protection is afforded in that specific circumstance." First, in the very systems ap-proach touted in the preceding comment, the most basic provision for intruder protection is not facility specific "intruder barriers," but rather the waste classification system itself.

Second, although we are accused by US Ecology and others of attempting to "disrupt, destabilize and prolong the process of establishing the new disposal facilities," we believe that US Ecology's suggestion would have precisely that result. Instead of bringing the best evi-dence to bear once, prior to the design and licensing of most facilities (we know that some states are ahead of others in their efforts, but it is still a small minority of states which have finalized their siting and design plans), US Ecology would allow 13 states and compacts to spend millions of dollars on siting efforts only to risk the possibility that they must go back to the drawing boards. Frankly, we can't think of a better way to "disrupt, destabilize and pro-long the process." If our intent were destabilization and delay, we would agree with US Ecology's suggestion to leave this matter to licensing proceedings. It isn't, so we don't.

Ecology 9) There is no confusion in the petition between "regulatory limits" and "numeric limits," as alleged in page 1 of attachment 1. We know that between the draft and final ver-sions of Part 61, the specific reference to 500 mrem as a regulatory limit was removed. We 4

also know that this limit was not "regulatorily or statutorily mandated," and never suggested that it was. On page 5 of the petition, we directly quoted the "combination of factors in the EIS process" on which the regulation was based. We also indicated on page 6 of the petition that NRC explicitly "considered and rejected" both the "much higher limit" requested by indus-try and a much lower 25 mrem limit.

But the petition also correctly states on page 1 that "The waste classification system NRC adopted was dependent on the level of intruder doses allowed.

11 US Ecology acknowl-edges this: "It is true that 500 mrem/yr was used as a basis.... " Where's the beef?

Ecology 10) "The petition asserts that recent changes in 10 CFR Part 20 require changes in Part 61." As we tried to make clear in our previous letter, this is not exactly correct. We assert that the changes in Part 20 require the filing of a supplemental EIS, because this is "new" and "significant" information. While we believe that this should and will result in revi-sion of Part 61, that will remain an unanswered question until the supplemental EIS is actually drafted.

Ecology 11) "NRC was not advocating loss of control.... " Of course not, nor have we ever suggested otherwise.

Ecology 12) This section of attachment 1 concludes: "This allows for a site specific analysis of intruder protection.... " This statement misses the key point. The cornerstone of the systems approach to waste management is controlling waste concentrations in the first place, instead of attempting hypothetical site specific analyses.

Several of the explicitly stated bases for the concentration limits have changed. There-fore, the petition argues, the concentration limits should be reexamined in the light of the new evidence. Nothing in US Ecology's lengthy response contradicts this fundamental point.

Ecology 13) According to US Ecology, "The argument citing changes in the bases for cost comparison... presupposes that in 1982, NRC made a calculated decision that there was a tradeoff between public health and safety and cost." (p.3) Our argument requires no implicit postulates.

We presuppose only what the NRC explicitly stated: namely, that the decision to reject a 25 mrem/yr dose limit was based, in part, on the fact that such a limit was "judged to result in considerably more costs... than the other two alternatives." (DEIS, Vol. 1, p. 29) This explicitly stated judgment was based, in turn, on the EIS' s cost comparison of mined cavities vs. shallow-land burial.

Ecology 14) US Ecology argues that "the record shows.... that no cost is too high to protect the public...," and then attributes such a sentiment to our petition: "as the petition points out.... " The petition makes no such point.

Ecology 15) "Experience in attempts to site new commercial facilities over the past decade has shown that costs are somewhat independent of the type of facility to be employed." Just so.

Cost differences between technologies are "offset by site characterization, licensing, public involvement, administrative and delay costs which are facility-independent and in the long run minimize design and construction cost differentials." For precisely this reason, the EIS' s use of exaggerated cost comparisons between shallow-land burial and geologic disposal 5

should be reexamined, as our petition recommends. As noted in the previous response, a finding that the cost differential was exaggerated would remove one of the underpinnings of the original EIS' s decisionmaking.

Ecology 16) Our petition does not suggest that "the facility development process has "self corrected" the waste classification concern articulated in the petition." We merely note that the explicit basis for cost comparisons in the original EIS is shallow-land burial, and that the original cost comparisons in the EIS were thus skewed against geologic disposal. Since the SLB method will not be utilized in the East, and because of the very experience cited imme-diately above, the EIS should be supplemented. There has been no "self correction." Indeed, at US Ecology's California site, there has been no correction at all.

Ecology 17) "The petition... suggests that NRC has a moral obligation to protect people from their own stupidity." (p.4) Not so.

In many of the scenarios we mentioned -- e.g., terrorism, organized crime, etc. -- we are suggesting that the NRC protect the innocent public from other people's malice. These are two very different propositions. It is also questionable whether "stupidity" properly describes the choice of someone driven to choose between radioactively contaminated water or food and no water or food.

Ecology 18) "NRC acknowledged the limitations [in its scenarios] and the limitations were commented upon during the comment period for the DEIS." Agreed. "Raising them again a decade later would serve no purpose." This is where we disagree. If the limitations had been properly decided in 1982, we would agree. In our view, which is detailed at length in the petition, they were not properly decided in 1982, and good policy suggests revisiting them now.

Ecology 19) "Facility-specific licensing processes thus provide the appropriate vehicle for addressing the petition's concerns." Once again, this misses the point. The intruder analyses performed in the EIS are an explicit part of the methodology used to formulate the waste clas-sification system. Facility specific processes do not address waste classification at all, which is a generic consideration.

Ecology 20) "In making the philosophical argument about dose impacts on an inadvertent intruder, the petition assumes that such intrusion would represent the most significant risk of dose from "unregulated" ionizing regulation." No such assumption is 0made or implied in our petition. This statement is gratuitous.

Ecology 21) US Ecology argues that if NRC had done a probabilistic risk assessment, "it would probably have a basis for significantly raising the 500 mrem benchmark.... " In fact, the NRC scenarios were "selected based on evaluation of the broad range of events possible, those considered by other investigators, and the likelihood of occurrence." (NUREG-0945. Vol 2, B-42) While this is not as formalized an assessment as a PRA would be, it is clear that NRC did consider probability of occurrence in reaching its original decision.

Next we tum to the DOE:

DOE 1) "The petition contains errors as well as a large number of unsubstantiated or mislead-ing claims, opinions, and extrapolations." This is a broad and largely undocumented state-ment, and to that extent, we are unable to respond to it. To the extent that the Department 6

attempts to substantiate it, however, its claims are baseless, as we will show.

DOE 2) "The Part 20 limits, and international recommendations upon which the Part 20 limits are based, are to be applied to routine releases of radioactive material from an operating facili-ty, not to accidents, inadvertent intrusion, or other hypothetical events at a LLW disposal facil-ity." This statement is correct, but misses the point. It is true that the Part 20 limits are not "applied" to intruder doses per se. Instead, they form the explicitly stated basis for the waste classification system which does apply to intruder dose. See our comments in Ecology 3, 5, 9, and 10 above.

DOE 3) Care must be taken when comparing the performance objectives in DOE Order 5820.2A.... " The DOE order is not mentioned in our petition, and no such comparison is made or implied.

DOE 4) "Contrary to petitioner's claim, an NRC determination that additional wastes are unsuitable for near-surface disposal is likely to be costly." First, our petition does not rely on any such claim. Second, it is not clear that NRC's finding that additional wastes are unsuitable for near-surface disposal would disrupt the ongoing process. As pointed out in our previous letter and in OCRE's comments, such a finding might be just what is needed to facilitate a process which, in many states and compacts, has made little observable progress.

DOE 5) "Under this Act, the States are responsible for disposal of commercial LLW not exceeding Part 61 's Class C limits, irrespective of any NRC revisions to 10 CFR Part 61."

Agreed. cf. Ecology 2 above.

DOE 6) "The petitioner assumes that a reexamination of the Part 61 classification system would result in additional wastes determined to be unsuitable.... " Not so. We suggest that such a result is "likely" (p. 14 of the petition), but we agree with DOE's conjecture that "This might not be the case." That is precisely why a new analysis, based on the best information now available is necessary.

DOE 7) DOE says that the petition "misrepresents the derivation and application of the Part 61 rule... " and then proceeds, as its substantiating example, to misrepresent our petition. We agree that the "EIS analyses were not limited to shallow land burial." Indeed, our petition explicitly states: "Costs of the base case (SLB) were compared to costs of disposal in a mined cavity or in DOE's high-level waste repository." (pp. 7-8) We specifically noted the compari-son, and then argued that, because SLB is irrelevant to the new generation of Eastern facilities, it no longer constitutes a valid base case.

DOE 8) The DOE's comments concerning the Rogers and Associates study are fully addressed in the comments on Robert Baird's letter.

DOE 9) We are not sure exactly what DOE means by "the need to apply a dose limit for deliberate intrusion." If they are suggesting that our petition calls for explicitly incorporating specific dose limits, please see Ecology 9 above. If they are merely stating their opinion that deliberate intrusion scenarios should not be considered, they are welcome to do so. We will agree to disagree. Our rationale is articulated at length. Theirs remains unexpressed.

When DOE provides the "substantial number of additional comments," we will respond to them. We also await a specific list of "unsubstantiated or misleading claims, opinions, and extrapolations," so that we can respond to the DOE's unsubstantiated and misleading claim.

7

Next, we turn to the Southern California Chapter of the Health Physics Society:

Health 1) Most of the comments are either statements of opinion, or have been thoroughly discussed above. We will not rehash these matters.

Health 2) "The planned use of concrete vault... would further reduce inadvertent intruder doses... ; the petitioner believes the opposite would be true." We have no idea where this latter statement of our position comes from. We made no such statement.

Health 3) "The waste form, stability and concentration requirements insure minimal impact from inadvertent or deliberate intrusion after institutional control is no longer effective." We agree that these 3 sets of requirements are intended to do just that. We are arguing that, for the reasons cited in the petition, the waste concentration requirements may not do so adequate-ly. The Society's argument appears to boil down to this: since the requirements are intended to insure minimal impact, therefore there will be minimal impact. The proverbial road to hell is paved with good intentions.

Next, Frank Petelka:

Petelka 1) "We as a nation cannot expect government regulation to prevent every type of hypothetical future risk." We agree; this is not, however, the issue.

Petelka 2) A revised analysis will determine whether the cost differential between a near-sur-face facility of the type actually planned in most states and a geologic facility (or the DOE repository) has changed or not. As suggested in Ecology 15 above and in the petition (p.8),

there is reason to believe that the original analysis exaggerated the cost spreads.

Petelka 3) "Mechanisms such as institutional controls are maturing." In the former USSR, for example?

Finally, Commonwealth Edison:

Com Ed 1) "This petition, if enacted, would generate large quantities of greater than Class C waste requiring on-site storage." We are not certain what this comment actually means, but we will try to respond to it.

First, we note that neither the New England Coalition on Nuclear Pollution nor its peti-tion generates any waste. In addition, if the NRC follows the recommendations in the petition, a revised analysis of the waste classification system is the only guaranteed result.

Second, let us, for the sake of argument, grant the petition's hypothesis (not an assump-tion) that the result of the reanalysis will be to reclassify certain waste streams and to keep them out of near-surface disposal facilities. In that case, there may be an extra period of time when storage of these materials would need to be provided.

As matters stand now, it appears highly probable in most states that storage of all "low-level" waste will be required during an interim period between closure of the three existing disposal sites (or more precisely closure of two, and the restriction of access to the third) and the opening of new facilities licensed under Part 61. The question is whether this period will be extended by revising Part 61 's classification system. The answer to this question, in turn, 8

depends on a number of unknown and currently unknowable factors. Perhaps it is worth taking a moment to examine some of them.

Many of the commenters appear to believe that the siting efforts currently underway are "on course," and that, therefore, any "disruption" will be detrimental to the process. As we view the situations in quite a number of states, however, especially in the East, this belief does not appear to be warranted. Except for California and Nebraska, most of the programs have made little progress, and are meeting with substantial public opposition. It seems probable to us, as these efforts continue forward, that there will be still more public opposition, and that therefore forward progress will be even slower in the future.

The amount of time during which storage will be needed depends on when new disposal facilities are available either a) without the rulemaking proposed in our petition or b) with the rulemaking in place. Many commenters are convinced that a) would necessarily precede b).

We are not so sure. The same commenters all appear to believe that the public has no rational grounds for its opposition to the new facilities as currently planned. We disagree.

We believe that it is at least possible that, if the rulemaking we propose removes one of the key bases for public opposition, the new facilities may come on line faster, not slower.

But we know that it is impossible to tell whether our petition will result in increasing the time during which storage is necessary without knowing the answers to the questions just raised.

Unlike some of the commenters, we do not pretend to have a crystal ball.

Third, if storage is required, we have no way of knowing whether it will be "on-site" or elsewhere. If additional storage is required, it does not necessarily follow that "plant facili-ties will require modification to store this waste until decommissioning." Various states are discussing centralized storage facilities. It also does not follow that "Additional radiation waste will result.... "

Fourth, the idea that there will be a "greater than Class C" (i.e. greater than what is currently classified Class C) "orphan" waste class to be stored is predicated on the assumption that all of the states will opt to build new near-surface facilities for the rest of the waste, and then to leave this reclassified waste as 'an orphan.' There are other options. There is no way of foretelling which ones states will choose. See Ecology 2 above.

In sum, we do not believe that an uncertain prediction of an inherently unknowable effect is a good basis for opposing our call for a rational, well-supported analytic process.

Once again, we thank you for the opportunity to respond to these comments. As more comments are received, we will appreciate receiving them.

9 S&:Jely')/A.

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STATE OF CALIFORNIA-HEALTH AND WELFARE AGENCY DEPARTMENT OF HEALTH SERVICES 714/ 7"" P STREET P.O. BOX 942732 SACRAMENTO, CA 94234-7320 PETE WILSON, Governor (11 f-f<.32.73/..?J, L; Li:

U~NHC (916) 323-2759

'92 OCT 19 p 4 :3o October 7, 1992 Secretary of the U. S. Nuclear Regulatory Commission Attention:

Docketing and Service Branch Washington, D.C. 20555

Dear Sir:

The Radiologic Health Branch of the California Department of Health Services offers the following comments on Docket No.

PRM-61-2, regarding proposed rul emaking on 10 CFR Part 61 :

1.

If this petition is accepted, Class C waste will not be dropped off in near-surface disposal sites.

That means all the present low-level radioactive waste (LLRW) sites (three) will be unable to accept Class C waste.

The future sites,such as Ward Valley in California, will also be affected.

Problems Created:

a.

New LLRW disposal sites will have to be designed and developed.

b.

There will be no Class C disposal sites during the interim.

c.

Extended storage of Class C waste will be hazardous and costly.

2.

The petitioner cited that the original environmental impact statement (EIS) was based on a 500 mrem/year dose to "inadvertent intruders",

and with the present change of NRC limits to the general public of 100 mrem/year dose, this EIS should be re-evaluated.

Problems Created:

a.

Supplemental EIS, if required, would be costly.

b.

Other EIS's based projects. If this supplemental EIS, projects.

on 500 mrem/year dose have been done for other sets the precedence of requiring a retroactive the same question could be raised for other

tJ.S. f\UCi -~-- :,.*; ?U~UI.:-.. TORY COtW ;~:r,:o~

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Secretary of the U.S. NRC October 6, 1992 Page 2 Therefore, this office is opposed to the proposed rulemaking as petitioned.

Sincerely, Edgar D. Bailey, C.H.P., Chief Radiologic Health Branch

New England Coalition on Nuclear Pollution, Inc.

Box 545, Brattleboro, Vermont 05302 DOCKET NUMBER

..,. 1-,

PE.Tl'T\ON RULE :..:PRll__,,.j~ ~

(_51 f Vt 31.-1'-l'!v Secretary Docketing and Services Branch U.s. Nuclear Regulatory Commission Washington, DC 20555 To whom it may concern:

IJ0(;K[1EO USNRC Phone (802) 257-0336

• 92 OCT 19 AlO :30 October 14, 1992

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In comments on the New England Coalition on Nuclear Pollution's petition in docket PRM-61-2, both Wade Williams and Robert Baird of Rogers and Asso-ciates make a number of points which merit a response.

I begin with Mr. WU-Uams's comments.

la) The New England Coalition on Nuclear Pollution's petition does not "propose that the repository [sic] dose limits for an intruder reflect those given in 10CFR20 or as recommended by, e.g., ICRP" as Mr. Williams contends. Instead, it notes that NRC explicitly based its environmental impact statement ("EIS") on those limits, and further points out that the limits have changed since the original EIS.

The petition also adds that, according to the EIS itself, this is a difference which would have made a difference.

We therefore requested that the EIS, which ls the basis for 1 o CFR 61.55, be reopened and revised in accordance with NEPA law.

As a matter of policy, changes of this nature are eminently reasonable.

Part 20 and ICRP recommendations were revised during this period because the scientific community's evaluation of the dangers of radiation has improved. It makes excellent sense to revise regulations to make them accord' with new scien-tific knowledge.

To do otherwise would be to ignore the very advances in scientific knowledge which Mr. Williams celebrates on the second page of his letter. In any case, as our petition notes, NEPA law requires such re-examina-tions.

On the other hand, it would certainly be unreasonable to propose that a faclUty "be modified after it was built, filled, and sealed, simply because the then-current dose llmits had changed." (emphasis added} Our petition makes no such suggestion.

Any question of when and under what conditions a filled disposal facility should be modified ls speculative and premature.

Our petition addresses faciU-ties which have yet to be licensed or bullt.

b) Whether Mr. Willlams likes it or not, the dose limits in Part 20 do apply to all nuclear facilities, including low-level radioactive waste disposal facilities, as well as to nuclear reactors.

No further reply ls needed* in support of our petition.

Still, since the issue has been raised, we will res o.ttd. We support a consistent radiation protection policy.

To use Mr. Wllliams's own analogy, it makes excellent sense to place identical limits on emissions from a garbage dump which harbors germs and on emissions from a biological lab studying the same JAN 2 1 1993 1

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germs. While the purpose and nature of the facilities may be quite different, the emissions and their health consequences for the public at large are quite simi-lar.

There is thus no question of "apples and oranges" in assuring consistent regulatory policies for both kinds of operation.

The same reasoning also applies to nuclear reactors and low-level radioactive waste disposal facilities.

2) We made no case, significant or otherwise, about "the cost differential bet-ween LLW and HLW repositories.... " The issue of HLW does not arise in our petition in any guise. Nor do we suggest anything about the "economic under-standing by all the states We pointed out that NRC's cost estimates for LLW disposal in the EIS are based on a disposal method which no state east of the Mississippi intends to utilize, and that this unfairly prejudiced the cost-benefit ratio in the original EIS by exaggerating the additional expense which would be involved in deeper geological disposal of certain portions of the waste stream.

This has nothing whatever to do with HLW.

This new information does, however, require that the EIS be reopened and revised in accordance with NEPA law.

3) Mr. Williams feels that "The NRC would look foolish in trying to predict the future to any significant extent."

We agree.

Our petition notes that the EIS's methodology ls highly dependent on just such predictions.

Our whole point about intruder scenarios ls that they are highly uncertain, inherently unknow-able, and yet they form the basis for the NRC's conclusions about intruder doses.

Mr. Williams may think he is arguing with us.

In fact, he has under-scored our point.

He also writes: "The Indians of 400 years ago alluded to in the proposal had no conception of the technology of today... "

Again, this was precisely our point.

Yet again, he underscores our point when he writes: "If a questionable intrusion scenario can become the basis for changing regulations, it would be relatively easy to force closure of all waste sites (LLW or HLW)."

Our point ls quite similar, namely: questionable intrusion scenarios form the basis for creat-ing part of the 10 CFR 61 regulations.

They constitute a very unsound footing for opening or closing such facilities, as Mr. Williams implies.

Finally, because he "could not find in the proposal a description of the

'non-credible' scenarios," Mr. Williams concludes that "this lack of detail makes the studies poor evidence."

In fact, the studies are cited in a footnote of our petition, and in the cited document, the scenarios are discussed in detail.

We chose not to rehearse them in our petition, discussing instead those scenarios declared non-credible by NRC that we consider to be relevant and credible.

Mr.

Williams decision to "assume that the scenarios were too in-credible [sic) to relate" is both unfair and wrong.

Now, I turn to Robert Baird's comments.

1) Our petition did not intend to imply any endorsement by RAE either for our 2

(

~.,

position or for the reasoning on which we base it.

Indeed, we are not at all surprised to find RAE opposed to our positions.

We also willingly acknowledge that the studies RAE produced in Vermont did not in any way intend to lead to the conclusions we have drawn from them.

We further stipulate that the studies were performed for quite different purposes in Vermont than those which guided the EIS.

Nevertheless, neither the studies' different purposes nor the authors' different intentions invalidate the conclusions we have drawn.

Many important scientific discoveries have occurred when experimenters were looking for results opposite to those found.

For example, the famous Michelson-Morley experiment was meant to confirm the "ether drift" theory and the Newtonian view of the universe on which it relied.

Yet, it became one of the most crucial experiments in the history of science precisely because it negated the authors' intentions.

It is especially noteworthy that, while condemning the assumptions on which his studies were based as "unrealistic" and "illogical" for regulatory purposes, Mr. Baird does not challenge our conclusion that his studies showed that if the assumptions are granted, the near-surface facility modeled in his studies will fail.

Indeed, he writes: "For both scenarios... grossly conservative assumptions were made.... Aside from these conservative assumptions, the methodology for assessing risks was conventional."

This ls precisely the point raised in our petition, succinctly stated.

If assumptions more conservative than those allowed by NRC in the EIS are used, then quite different results are derived, using "conventional" methodologies.

Once this point is recognized, attention is focused on the methodologies used to generate the assumptions and on their inherent "reasonableness.

11 As noted in our petition, the NRC has neither sociological nor in fact any expertise to adequately defend the assumptions made in the EIS, which are, as we have elaborately shown, indefensible.

Mr. Baird believes that the assumptions used in his Vermont studies are "grossly conservative, 11 and that they suffer "logical flaws.

11 We discuss these claims below.

But he appears to support, however unwillingly, the petition's fundamental logic that by modifying the assumptions, the results will vary considerably.

Indeed, that is precisely the point he affirms ln his summary.

In sum, while we do not agree with his argument that the assumptions made in the Vermont study are "illogical," we are in complete agreement that it is these assumptions which were responsible for his studies' results.

2) Mr. Baird comments "although RAE has prepared life cycle cost estimates of LLW disposal in the State of Vermont, these results have little, if any, bearing on the adequacy of viability of 1 O CFR 61."

We agree.

We did not use RA E's cost studies in any way.

Our points concerning cost estimates drew on more general studies prepared for more generic comparisons.

The studies we utilized are cited in the petition.

3

I

3) Mr. Baird argues "If groundwater flow at the depth the well is withdrawing water... were sufficient to supply... (a) well, the disposal facility would not have been developed at the site because of the siting requirements and perfor-mance objectives of 10 CFR 61."

There is no siting requirement in Part 61 which per se eliminates sites with groundwater flows adequate to supply drink-ing wells.

On the other hand, a site where models showed that a drinking well would exceed the performance objectives could not be licensed. If this is all Mr.

Baird is arguing, then he is obviously correct. So, however, are we: the reason such a facility could not be licensed ls that it would fail, exactly as we stated.

However, Mr. Baird appears to be also arguing that the assumptions made about contaminated water in the Vermont study are "unrealistically conservative."

In some respects, we agree; ln others, we disagree.

For example, we agree that the report's decision to take "no account... of dilution in the groundwater system that would otherwise reduce the projected consumption of radioactive contaminants and the resulting radiation exposures" is a "very conservative representation of how radiation exposures might result via the groundwater pathway." (Identification Report, p. 2-5) Indeed, this assumption is "unrealistic."

However, we do not agree that the report's assumption "that the disposal unit begins to fail no earlier than 300 years after the disposal operations have ceased" ls based on "conservative evaluations of similar disposal units in similar settings" (Identification Report, p. 2-5, emphasis added), since no such disposal units have ever existed. Indeed, one of Mr. Baird's own reports, cited as basis for this statement warns: "A general lack of long-term, detailed, and quantita-tive experience with concrete structures makes it difficult to project the perfor-mance of this material with any degree of certainty beyond a period of about 50 years." (Conceptual Design Report DOE/LLW-60T, p. 3-15)

Given this, it is not conservative, in our view, to choose a 300 year figure rather than a figure based on actual successful historical experience.

Were we constructing scenarios, we would consider the most reasonable conservative scenario for contaminated water to be one in which a drinking well were drilled immediately adjacent to the waste (as in the report above), with an adequate adjustment for dilution by uncontaminated ground or surface water (not as above) and with assumed vault failure no later than the longest successful experience with concrete structures to date (ca. 50 years?) (not as above).

Our view is that the NRC contaminated water scenarios are not conservative enough, while certain aspects of the Rogers scenarios are too conservative.

But we are not in the scenario constructing business.

We used the Rogers report to show that using different scenarios than those postulated by NRC yields different results. This conclusion ls not challenged by Mr. Baird's letter.

Our petition further suggests that NRC unreasonably limited the scenarios it chose to study.

Nothing in Mr. Baird's comments provides any basis for chal-lenging that statement.

4) Mr. Baird's comment that intentional intrusion scenarios are "unrealistic and 4

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could not occur" simply ignores the fact that such an incident already has occurred (SEE the Beatty, Nevada incident cited on page 12 of our petition and documented in footnote #50).

It seems to us a fundamental truism of modal logic that whatever has occurred, can occur.

There ls therefore nothing "illogical" about such a scenario.

In fact, it ls the NRC's and Mr. Baird's insistence that what has already occurred ls "unrealistic," which is "illogical."

5) We disagree with Mr. Baird's (and the Commission's) defeatist conclusions when it comes to preventing intentional intrusion.

While it may not be possible to ellmlnate all acts of intentional intrusion, eliminating many of them ls cer-tainly feasible.

Our petition provides one such means.

By prohibiting near-surface disposal for long-lived materials, the NRC would, we believe, be dimin-ishing the probability of all acts of intrusion, intentional or inadvertent.

Moreover, we do not accept the defeatism inherent in Mr. Baird's and the NRC's posture.

Terrorists have shown the very kind of "demonstrated resource-fulness" of which Mr. Baird speaks.

Yet airports (and nuclear reactors} all over the world employ active means to defeat them.

While they are not I 00% effec-tive, few are arguing for the elimination of airport security measures.

On the contrary, most agree that such measures are considerably better than nothing, and that, if anything, they should be improved. It ls no more logical to give in to terrorism at low-level radioactive waste disposal facilities than it is at air-ports.

We close by clarifying a point which seemed to cause some confusion at NRC when our petition was first filed, one that is not raised in these two let-ters.

We believe that NRC must, as a matter of NEPA law, submit a supplemen-tal EIS to bring the existing EIS into accordance with two "new" and "signifi-cant" facts which we noted: I} the change in dose limits and 2) the change in disposal technologies actually being planned.

In our view, this ls legally re-quired, and not a matter of NRC discretion.

As a matter of pollcy, we also believe that section 61.55 should be changed to limit the types of radioactive waste which can be placed in near-surface fac111ties.

In support of such a change, we note that the EIS's method-ology ls heavily dependent on a variety of questionable scenarios.

As noted above, these are mere postulates: there is really no body of scientific evidence to support them, yet they underly and control all of the conclusions in this section of the EIS.

We therefore hope that, at the same time the EIS ls being revised to comply with the new information, the NRC will take a new and more sophisticat-ed look at the sociological assumptions behind its earlier work.

While the law does not specifically require this third re-investigation, we believe that good public policy does.

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Reopening the EIS will provide the opportunity to further illuminate the choice and merits of the assumptions which will form the basis for LLW disposal regulations in the United States. The intent of our petition ls to open that debate, not to provide definitive answers to end it.

As our petition and many early commenters on the EIS noted, there are many sets of assumptions which could have been made and which still merit consideration.

Our petition made no effort to prove one or another assumption as the basis for LLW disposal studies.

Instead, at this stage, we attempted to show 1) that the assumptions used by NRC are not the only reasonably avail-able, nor even the most reasonable, assumptions; 2) that changing from these to other assumptions produces quite different results; and 3) that choosing more conservative assumptions would result in significantly greater protection for the public at relatively small additional cost.

In regards to the first point just noted, it ls also important to add that the assumptions used in the Vermont studies are not the only alternatives to the Commission's.

In other words, one ls not forced to choose between the Commission's assumptions and those used for the Vermont studies. The petition itself suggests multiple other scenarios; still, even there, we made no attempt to examine all of the possible scenarios which might bear consideration.

It ls also worth adding, in regards to the third point, that the increase in public acceptance of near-surface facilities which no longer need to house "long-lived" low-level radioactive waste may well end up being an important factor in decreasing the cost of near-surface facilities.

Indeed, it ls quite probable that siting would be facilitated, legal interventions and lawsuits might be avoided, etc.

These up-front costs are often as or more important than the actual disposal costs when it comes to full operational and design cost analyse::,.

The economic result of restricting the waste streams just might be a reduction in total costs, that is, an economic benefit.

If so, then environmental and economic benefits would reinforce each other.

To conclude, all three examinations -- the two legally required, and the one to be undertaken as a matter of good policy -- will, we believe, lead to the same result; namely, that the small volume of low-level radioactive waste which contains the overwhelming majority of the long-lived radioisotopes should not be permitted in near-surface disposal fac111ties.

We hope this clarifies our position.

We look forward to examining the other comments submitted in response to our petition.

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Commonwealth Edison 1400 Opus Place Downers Grove, Illinois 60515 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch OC:\ET NUMBER pc~~~~E;~ 7~f Ll'li.. ~ i :

hl-ii~C September 22, 1992

• 92 SEP 30 p 2 :17

Subject:

Petition by the New England Coalition on Nuclear Pollution, Inc. for changes to 10 CFR 61 (57 Federal Register 32743)

Reference:

Petition by the New England Coalition on Nuclear Pollution, Inc. to the NRC dated April 25, 1992.

Please accept Commonwealth Edison's (CECo) comments on the petition (Reference 1) filed with the Commission by New England Coalition on Nuclear Pollution, Inc. The proposed changes recommended in this petition would have profound impacts on the disposal of radwaste. This petition, if enacted, would 9enerate large quantities of greater than Class C waste requiring on-site storage. Specifically, plant facilities will require modification to store this waste until decommissioning.

Additional radiation waste will result from handling and storing of higher waste classifications.

Commonwealth Edison does not support this petition. CECo supports the Environmental Impact Statement developed by the NRC for 1 0 CFR Part 61.

Respectfully, n

Nuclea inistrator Generic Issues ZNLD/2124/18 Acknowledged by card JAN 2 l 1993

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Secretary of the Commission DOCKET NUMBER PETITION RULE PRM 6 / - 2 C s-;z t=re 3,;, 1,.113 Attention: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555 September 18, 1992

Subject:

Docket No. PRM-61-2 Petition to revise 10CFR61.55 Dear Secretary;

• 92 SEP 28 P 3 : 1 5 t.. 'L.

*iCK -*M, *.

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. ;.~N I would like to make several comments to the New England Coalition on Nuclear Pollution, Inc.

petition to the Nuclear Regulatory Commission to revise 10 CPR 61.55. For reference, I have a doctorate in Health Physics and have over 5 years experience in radiological risk assessment, environmental restoration and radioactive, hazardous, and mixed waste disposal.

First, during development of the disposal regulations, the commission recognized the uncertainty inherent in risk assessment. As recognized in the New England Coalition on Nuclear Pollution, Inc. petition, "there is no practical way in which a licensee could monitor and assure compliance with an actual exposure limit... " The doses being discussed are to a hypothetical future individual, possibly several hundred years away. We as a nation cannot expect government regulation to prevent every type of hypothetical future risk.

Second, the recent change from shallow land burial to engineered structures is not a "significant new circumstance", but rather an application of existing technology that meets the intent of the disposal regulations.

The cost differential between the shallow land burial facility and the geologic repository has not necessarily changed. Cost estimates for the geologic repository continue to grow.

Finally, I believe that inclusion of the deliberate intrusion scenario cannot be modeled and is not warranted. The exposure scenarios presented in the petition are baseless. For instance, I have never seen a credible scientific study estimating the potential risks from radioactive stainless steel marketed by elements of organized crime.

I understand that land use is dynamic and has undergone significant change in this country in the last 4 centuries. I also see the increase<l awareness of hazardous substances. Mechanisms such as institutional controls are maturing.

One can not deny that the human condition in future centuries may lead to the use of water from contaminated wells. If that is the case, then there will probably be many other hazards much more significant than a small quantity of radioactive waste stored in a trench or an engineered facility. The inclusion of these potential exposure scenarios is baseless speculation.

~~

M. Frank Petelka, Ph.D.

11316 Gates Mill Drive Knoxville, TN 37922 JAN 2 1 1993 Acknowledged by card.............................. -

U.. 1 'UCU:AFi P.l::0..,.J

,,. '.,_,, 1 iSSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Stahstics Postmark Date ___....._ _____ _

Copes Received~/ _____

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DOCKET NUMBER PETITION RULE PRM 6 /-2..

Wade Williams

( ',/ F fl_ 3 ?.-7 '--/.J) OFFICE o o USHRC uocorn: 10' 40 INIS RA: *~, us RC 0..::!_j 1350 Brookdale Way Manteca, CA 95336 Michael Lesar U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Lesar:

"92 SEP 24 P 1 :3~2 SEP 28 Al 1 :37 18 September 1992 Thank you for sending me a copy of the petition for rulemaking by the New England Coalition (NEC), pursuant to our phone conversation a few days ago. I would like to submit the following response to the associated request for public comment in Docket No. PRM-61-2.

By way of personal background, I am a currently a researcher at Lawrence Livermore National Laboratory, involved in Inertial Confinement Fusion studies.

My education was in Nuclear Engineering. I presently have no vested interest in low level nuclear waste, except as a member of the public. I have in the past worked in a research reactor where such wastes are generated, and so am familiar with some practical aspects of the subject.

My graduate studies provided familiarization with some other aspects. I do not consider myself a specialist in low level waste disposal.

With regard to the petition, in summary, I am not convinced that the NEC's request provides a reasonable basis for a change in NRC rules.

Their recommendation is based on three arguments: 1) the change in 1 0CFR20 dose limits, and associated changes in recommendations by radiation control bodies (e.g. ICRP); 2) a suggested lessening of the cost difference between low-level and high-level waste repository schemes; and 3) a suggested inadequacy in the possible repository intrusion scenarios used in the regulations. My reasons for rejecting these arguments are given below.

Dose Limit Changes.

The NEC proposes that the repository dose limits for an intruder reflect those given in 10CFR20, or as recommended by, e.g., ICRP. I believe it would be imprudent to tie repository requirements to ever-changing guidelines. Such would set a precedent which may, for example, require a repository to be modified after it was built, filled, and sealed, simply because the then-current dose limits had changed.

To allow such possibilities is to significantly discourage building such repositories in the first place, with all the concomitant negative results. I, personally, also perceive a storage facility to be sufficiently different from a nuclear reactor that I see no problem in having different dose limits. Apples and oranges. Should we place the same limits on a garbage dump which harbors germs and viruses as on a biology laboratory which studies the same a9ents?

JA~ 2 11993 Acknowledged by card......................... wuu11

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Repository Costs.

The NEC case for a significant change in the cost differential between LLW and HLW repositories is insubstantial. If such were true, it would infer lack of economic understanding by all the states which are presently planning LLW repositories. It would also, incidentally, remove any reason to distinguish between LLW and HLW for disposal reasons.

If NEC really believes LLW disposal is that expensive vis a vis HLW, the ramifications are much larger than what they suggest.

Intruder Scenarios. The lengthy discussion of intruder scenarios in the last several pages of the NEC proposal was not convincing to me. The NRC would look foolish in trying to predict the future to any significant extent. Anyone who has struggled with deciding how much of their income to spend on life insurance knows the balance required in sacrificing for today to protect tomorrow. I subsciibe to a significant amount of faith in human ability. The Indians of 400 years ago alluded to in the proposal had no conception of the technology of today, and our ability to deal with problems. Extrapolating that learning curve to 400 years hence suggests a society where intransigent problems of today (e.g. radioactive wastes) have trivial solutions. More to the point, however, is the need to realize that tomorrow is built on today. Dollars spent on preserving an environment for our children tomorrow often take jobs away from their parents today and lessen the strength of the economy the children will inherit.

That balance should be much more the focus of the discussion, not credible vs non-credible intrusion scenarios.

The NRC approach to prognostication, as presented in the NEC proposal, seem very reasonable to me. Also, there is here, again, an issue of precedence. If a questionable intrusion scenario can become the basis for changing regulations, it would be relatively easy to force closure of all waste sites (LLW or HLW).

(Incidentally, I could not find in the proposal a description of the "non-credible" scenarios which were part of the Vermont LLW repository studies. This lack of detail makes the studies poor evidence in this proposal, since I must assume that the scenarios were too in-credible to relate.)

Thank you for allowing this submission.

Respectfully, Wade H. Williams cc. New England Coalition on Nuclear Pollution, Inc.

Southern California Chapter Health Physics Society Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Reference:

Docket Number PRM-61-2 21 SEP 2 2 OOCKETI RVICE 8 SEOY-H Secretary Chilk:

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The Southern California Chapter of the Health Physics Society has been very active in the licensing of the proposed LLRW disposal facility slated for Ward Valley, California. Several of our members have thoroughly studied 10 CFR 61, as well as, the Draft and Final Environmental Impact Statements (NUREGs -0782 and -0945). Due to our experience on the issues raised in the above referenced Petition for Rulemaking, we would like to comment on the Petition.

1. Impact of reduction of 500 mrem public dose to 100 mrem The 100 mrem/year dose limit for members of the public in the new 10 CFR 20, is to limit the public at large from actual doses f.rom licensed activities. The extremely conservative modelling methodology used to set standards for LLRW, already greatly exaggerate actual radiation doses. Actual doses in actual intrusions should be well below 100 mrem. There is no reason to reevaluate the classification scheme. The planned use of concrete vault, above-ground storage facilities in most of the eastern U.S. would further reduce inadvertent intruder doses due to gamma ray shielding by the concrete and the greater likelihood of recognition of the disposal vault; the petitioner believes t hat the cppc:::i. t S:

'.*:ould be t:!"us.

l*T0 believe that the current modelling of intruder doses is sufficient to constrain impacts from either shallow land burial or above-ground storage to insignificant levels.

2. Deliberate vs. inadvertent intrusion We believe that only inadvertent intrusion need be considered in planning scenarios. No licensee can control the deliberate misuse of radioactivity. 100 year post-closure, institutional control adequately assures no deliberate intrusion for that peri od.

The waste

form, stability and concentration requirements insure minimal impact from inadvertent or deliberate intrusion after institutional control is no longer effective.

jf\~ 2 1,~~

A knowledged by card...,.,,.........,............... *

3. Cost estimates for Engineered Storage Facilities As stated in the comments to Item 1, above, we see no need for a reevaluation of the classification scheme and therefore no need for a supplemental EIS. We also see no justification for a

supplemental EIS based on current cost estimates of enhancements to shallow land burial, above ground storage, or comparison with deep geological disposal facilities.

In conclusion, we advise the NRC staff to reject this Petition for Rulemaking, as the issues do not warrant any revision of 10 CFR 61 or a supplemental EIS.

s*

erely, David J.

Presiden for Executive Comm1 ee So. California Chapter HPS

SENT BY:U CI

9-21-92 ; 2

54PM; UGI EH&S 301 504 1672 DOCKET NUMBER PETITION RULE J~ ~ /;_;z_

( 5?-F/{3? 1-3 : LLr-:.*Lo

• Southern Callfornla Chapter usNr\c Health Physics Society

• 92 SEP 22 A 9 :43

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til *;r,~_l : t,ept.elllber 1992 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention; Docketing and Service Branch

Reference:

Docket Number PRM-61-2 Secretary Chilk:

t t\. t The Southern California Chapter of the Health Physics Society has Deen vary active in the licensing of the proposed LLRW disposal faoility slated for Ward Valley, California. Several of our members haVe thoroughly studied 10 CFR 61, as well as, the Draft and Final Environmental Impact statements (NUREGs -0782 and -0945). Due to ouir experience on the issues raised in the al:love referenced

• Petition for Rulemaking, we would like to comment on the Petition.

1. Impact of reduction of soo mrem public dose to 100 mrem The.roo-mrem/year dose limit for members of the public in the new 10 CFR 20, is to limit the public at large from actual doses from licensed activities. The extremely conservative modelling methodology used to set standards for LLRWt already greatly exaggerate actual radiation doses. Actual doses in actual intrusions should be well below 100 mram. There is no reason to reevaluate the classification scheme. The planned use of concrete vault, above-ground storage facilities in most of the eastern u.s. would further reduce inadvertent intruder doses due to gamma ray shialding by the concrete and the greater likelihood of recognition of the disposal vault; the petitioner believes that the opposite would. be true.

We believe that the current modelling of intruder doses is sufficient to constrain impacts from either shallow land burial or above-ground storage to insignificant levels.

2 *. Deliberate vs, inadvertent intrusion We believe that only inadvertent intrusion need be considered in planning scenarios. No lioensea oan control the deli~erate misuse of radioactivity. 100 year post-closure, institutional control adequately assures no deliberate intrusion for that period.

The waste

form, at&l.)ility and concentration requirements insure minimal impact from inadvertent or deliberate intrusion after institutional control is no longer effective.

JAN 2 1 1993 Acknowledged by card..................................

SENT BY:U CI UCI EH&S 301 504 1672

3. cost estimates for Engineered Storage Facilities As stated in the comments to Item 1, above, we see no need for a reevaluation of the classification scheme and therefore no need for a supplemental EIS. We also see no justi!ication for a

supplemental EIS based on current cost estimates of enhancements to shallow land burial, above ground storage, or comparison with deep geological disposal facilities.

In conclusion, we advise the NRC staff to reject this Petition for Rulemaking, as the issues do not warrant any revision of 10 CFR 61 or a supplemental EIS

• s erelY.,

David J, Presidan for Executive Co ee So. California Chapter HPS

IJ.S. NUCLEAR REGULATORY COMMISSIOP.

DOCKETING & SERVICE SECTION OFFICE OF THE SECRETAR\'

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Department of Energy Washington, DC 20585 SEP 211992 Secretary of the Commission u.s. Nuclear Regulatory Commission Washington, DC 20555 (WF, 16Gl5)

Dear Mr. Chilk:

This is in response to a July 23, 1992, Federal Register Notice (57 FR 32743) requesting public comment on a petition for rulemaking filed by the New England Coalition on Nuclear Pollution (Docket PRM-61-2).

The Department recommends that the Nuclear Regulatory Commission (NRC) deny the petition.

The petition contains errors as well as a large number of unsubstantiated or misleading claims, opinions, and extrapolations.

We are in the process of assembling a substantial number of comments on the petition, which we intend to provide NRC within a few weeks.

To summarize a few points--

1.

Contrary to the petitioner's claim, NRC's recent adoption of an annual 100 millirem limit in 10 CFR Part 20 does not require NRC adoption of a similar limit for inadvertant intrusion into a low-level waste (LLW) disposal facility.

The Part 20 limits, and international recommendations upon which the Part 20 limits are based, are to be applied to routine releases of radioactive material from an operating facility, not to accidents, inadvertent intrusion, or other hypothetical events at a LLW disposal facility.

Care must be taken when comparing the performance objectives in DOE Order 5820.2A with dose limits used for NRC's waste classification system, because DOE Order 5820.2A and 10 CFR Part 61 reflect different approafbes to LLW management.

2.

Contrary to the petitioner's cla~, an NRC determination that additional wastes are unsui table for near-surface disposal is likely to be costly.

Among these costs will be those associated with disruption of State and Compact efforts to develop new disposal site capacity under the Low-Level Radioactive Waste Policy Amendments Act.

Under this Act, the States are responsible for disposal of commercial LLW not exceeding Part 61's Class C limits, irrespective of any NRC revisions to 10 CFR Part 61.

3.

The petitioner assumes that a reexamination of the Part 61 classification system would result in additional wastes determined to be unsuitable for near-surface disposal.

This might not be the case.

The classification system was derived based on a number of conservative assumptions.

By

2 revising these conservative assumptions and using more current dosimetry models, the classification limits for a number of radionuclides might be raised, not lowered.

Such a determination, however, would also likely disrupt State and Compact efforts to develop new disposal capacity.

4.

The petitioner misrepresents the derivation and application of the Part 61 rule, and NRC's analyses in the Part 61 environmental impact statements (EIS).

As one example, the EIS analyses were not limited to shallow land burial.

NRC considered a variety of disposal methods, including engineered methods such as concrete bunkers.

5.

The petitioner cites a report by Rogers and Associates (RAE) as justification for the petition, including the need to consider deliberate intrusion.

However, the cited report does not support the petitioner's conclusions.

The principal author of the cited report, Robert Baird, has noted that the exposure scenarios were "... intentionally VERY conservative... " [emphasis in original] and that "The New England Coalition Against Nuclear Pollution has incorrectly generalized, interpreted, and *applied these results."

Furthermore, the RAE report indicates that the deliberate intrusion scenario was considered "... despite several logical contradictions... "

6.

The Department disagrees with the need to apply a dose limit for deliberate intrusion as part of development of a waste classification system or a performance assessment for a disposal faciliy.

Although it is appropriate to warn possible intruders about the consequences of their actions (e.g., markers), we know of no NRC regulations for management of any radioactive waste, nor any Environmental Protection Agency regulations for solid and hazardous waste management, that require consideration of deliberate intrusion when determining requirements for normal performance of a disposal facilffy.

To summarize, the Department recommends denial of the petition.

We expect to provide a substantial number of additional comments within a few weeks.

Mr. G. Roles of my staff may be contacted if you have questions (202-586-0289).

Raymond F. Pelletier Director Office of Environmental Guidance

U.S. NUCLEAR REGULATORY COMMISSIOh DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics

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PETITION RULE PRM 6 J ( G1 FR 32, 1'-12.?)

Rogers & Associates Engineering Corpor~~

Post Office Box 330 Salt Lake City, Utah 84110-0330 (801) 263-1600 Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Services Branch Washington, D.C.

20555 Re: Docket PRM-61-2 Dear Sir or Madam; September 21, 1992 DOCKETED SEP 2 2 1992 Telecopy The New England Coalition on Nuclear Pollution (the Coalition) has asserted in its petition dated April 25, 1992 that Rogers and Associates Engineering Corporation (RAE) has conducted studies which support the Coalition's position that 10 CFR 61, in its present form, may inadequately protect the public health. In response to your request for comments (Federal Register, Vol. 57, No. 142, Page 32743, July 23, 1992), we herein provide comment on the Coalition's petition and a description of the work RAE conducted for the Vermont Low-Level Radioactive Waste Authority (the Authority).

Of the three critical changes cited in the Coalition's petition, RAE's work for the Authority relates only to the last, i.e., the assertion that RAE's work raises a question of "the ability of near-surface facilities to contain all of the currently classified low-level radioactive waste stream[s]... ". RAE's work for the Authority cannot be used to justify any claim regarding appropriate dose criteria for intruders.

Furthermore, although RAE has prepared life cycle cost estimates ofLLW disposal in the State of Vermont, these results have little, if any, bearing on the adequacy or viability of 10 CFR 61.

COMMENTS ON THE COALITION'S PETITION RAE's work for the Authority did involve the assumption of intentional intrusion into LLW disposed in a near-surface disposal facility. However, RAE does not accept the Coalition's claim that new "intrusion scenarios should be analyzed".

We contend that the issue was thoroughly examined in the NRC's technical analyses supporting 10 CFR 61. Thus, we agree that it is not reasonable to protect against intentional intrusion with strictly passive means and note that active protective measures, sufficient to prevent intentional intrusion, are not precluded by 10 CFR 61.

RAE categorically rejects the Coalition's assertion that RAE's work supports their claim that"... siting these long-lived materials in near-surface facilities... is Acknowled ed b c r JAN 2 l 7993 g

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Secretary of the Commission September 21, 1992 Page 2 G-1-U exceedingly unwise." To the contrary, RAE supports 10 CFR 61 in its present form, as well as the regulatory system developed to implement it. We are of the opinion that the requirements of 10 CFR 61 are appropriate and adequate to protect the public health, inadvertent intruders, and facility workers from the potential hazards associated with LLW disposal.

BACKGROUND Under provisions of Vermont Act 296 (the Act -- in whose preparation the Coalition played a formative and significant role), the Authority was required to "..

. initiate a study to determine the maximum appropriate separation of long-lived waste, the appropriate level of recoverability of such waste, and the appropriate permanent disposal technology and cost for that waste." The Act did not, however, define the term "long-lived waste."

In fulfilling its legal mandate, the Authority contracted with RAE for professional technical services. Since the essential term (i.e., "long-lived waste") was undefined, an early RAE task was to prepare an approach for determining whether a waste stream is "long-lived". The Authority and RAE considered input provided by a range of technical and non-technical participants during public discussions of the study approach. Mr. John Greenberg, a Coalition Trustee (though acting as an individual), provided input in developing the exposure scenarios that formed the basis for the identification of waste streams containing significant levels of long-lived radionuclides (hereafter referred to as "long-lived waste").

The final approach addressed the time-dependent potential hazards associated with each waste stream and is documented in the report cited by the Coalition, i.e., "Identification of Waste Streams Containing Significant Levels of Long-Lived Radionuclides".

TECHNICAL APPROACH The approach to the identification process involved the preparation of a relative order-of-magnitude estimates of the risks associated with the disposal of each waste stream generated in Vermont. It was assumed that each waste stream would be disposed in a near-surface facility at a generic Vermont site. The doses that might result under extremely severe circumstances were estimated for the four exposure scenarios listed below (the assumed dose criteria are shown for each scenario in parentheses):

Contaminated Water ( 4 mrem/yr -- EPA's recommendation based on drinking water standards)

Intruder - Construction (500 mrem -- acute exposure)

Secretary of the Commission September 21, 1992 Page 3 Intruder - Resident (100 mrem/yr -- chronic exposure)

Intruder - Miner (500 mrem -- acute exposure)

G-1-U Only two scenarios (Contaminated Water and Intruder - Miner) had an effect in determining long-lived wastes. These two are discussed in the paragraphs below.

RAE's work compared the dose estimates with assumed dose criteria to identify long-lived waste streams. These criteria were assumptions of the analyses and in no way affirm or impugn the criteria that contribute to the basis for 10 CFR 61.

Contaminated Water -- The Contaminated Water scenario assumes that a well would be developed in such a way that only leachate from the bottom of the disposal unit is withdrawn. A major consideration in formulating this scenario was the need for the results to be applicable at all potential locations in Vermont. Since the migration of contaminated water relies heavily on site characteristics, it was necessary to configure the scenario so as to remove the dependence on natural site features.

Although, this configuration was suitable for the purposes of the investigation, (i.e., identifying long-lived waste streams which should receive additional consideration for what the Act called "permanent disposal") it is unrealistically conservative for traditional risk analyses. If groundwater flow at the depth the well is withdrawing water (whether from an aquifer or from percolation) were sufficient to supply the well, the disposal facility would not have been developed at the site because of the siting requirements and performance objectives of 10 CFR 61.

Therefore, the well could not exist and the projected dose could not occur. Yet, as noted above, this scenario configuration was acceptable for the purpose of identifying long-lived wastes for the State of Vermont.

The assumed conditions of the Contaminated Water scenario for the Authority do not call into question the many assessments that have been prepared for the purpose of evaluating the performance of near-surface LLW disposal facilities.

Intruder* Miner -- The Authority and RAE considered input provided by Mr.

Greenberg and criticisms of NRC work by others in developing this exposure scenario.

Solely for the purpose of identifying long-lived wastes, and in response to concerns expressed by Mr. Greenberg, RAE and the Authority agreed to consider the effects of a miner intentionally intruding into the disposal unit. This scenario was configured to address the Coalition's belief that the waste contained in the disposal units could represent a valuable resource some time in the future and, therefore, that intentional intrusion might occur.

It was assumed that the miner intentionally ignores the intruder barriers at the facility in his effort to retrieve the potentially valuable resources contained in the disposal units. Although he is assumed to be aware of the potential hazards, he

Secretary of the Commission September 21, 1992 Page 4 G-1-U makes no effort to protect himself from them. His dose is assumed to result from his mining efforts at the site over the period of a year and he is assumed to be in intimate contact with the resource he is retrieving. AB a result, he receives dose by external gamma radiation and by inhalation of suspended particles.

Although useful in identifying long-lived waste, this scenario is illogical for the purpose of assessing the adequacy and viability of near-surface LLW disposal. The assumption that the disposed waste is somehow a valuable resource implies a level of technical sophistication exceeding even that which exists today -- we are disposing the resource as waste because we are unable to separate its hazardous constituents or neutralized their effects. If such a level of technical sophistication were actually to exist, it is logical to expect that sufficient safeguards, whether regulatory or technical, would also exist to alert the intruder to the hazards of the waste and protect him from its hazardous nature. Therefore, the scenario is unrealistic and could not occur.

Additionally, we agree with the Commission's determination that protecting against intentional intrusion with passive measures is not a reasonable objective.

Because of the demonstrated resourcefulness of the human race, an individual who is intent upon intruding into (or otherwise encountering) the waste will create ways to bypass passive protective measures. The philosophy of 10 CFR 61 requires the facility to be designed, constructed, and operated to meet performance objectives without reliance on ongoing active measures. This philosophy does not preclude the provision of active protective measures which would prevent intentional intrusion. It does, however, assure that in the absence of active measures, the passive measures provided are adequate to prevent inadvertent (i.e., other than intentional) intrusion.

Thus, we believe that 10 CFR 61 appropriately and adequately protects against intrusion.

Summary -- For both scenarios described above, and for the purposes of RAE's work for the Authority, grossly conservative assumptions were made to assure that risks were conservatively overestimated. These conservative assumptions also assured that criticism would not result claiming that too few waste streams had been identified as long-lived waste.

Aside from these conservative assumptions, the methodology for assessing risks was conventional. Therefore, RAE's work provided a reasonable basis for conservatively identifying the waste streams that might be candidates for "permanent disposal" under terms of the Act.

CONCLUSION Neither of the two exposure scenarios that controlled the identification of long-lived waste for the State of Vermont is useful in drawing any conclusion about the viability or adequacy of 10 CFR 61. Both scenarios suffer logical flaws that make them unusable for the purpose for which the Coalition has cited their results. In the

Secretary of the Commission September 21, 1992 Page 5 G-1-U case of the Intruder - Miner, the impossibility of protecting against intentional intrusion with passive measures argues strongly against the use of this scenario for the Coalition's purposes.

In the end, the results of RAE's work for the Authority have NO implications on the viability or adequacy of 10 CFR 61 and the Coalition erroneously cites them for this purpose.

We will gladly provide additional information if it would be useful.

RDB:csd With kind regards,

~

Robert D. Baird Vice President

US Ecology, Inc.

3855 Atherton Road, Suite 5 Rocklin, CA 95677 916/624-9316 FAX: 916/624-7630 September 18, 1992 US ~ology oOCKET NUMBER PETITION RULE PRM (p I., 1 L 51 F£.-3~ 1f o)

Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 ATTN:

Docketing and Service Branch DOCKETE'.J USN~C "92 EP 21 P.11 :09

Subject:

Deny Petition on 10 CFR Part 61 Rulemaking US Ecology, Inc. respectfully urges the Commission to deny the petition for supplemental rulemaking submitted by the New England Coalition on Nuclear Pollution (FR Vol. 57 No. 142, July 23, 1992.)

It is our position that 10 CFR Part 61 and supporting documentation, promulgated by the NRC in 1982, currently provides a sound regulatory basis for protection of public health and safety and the environment with respect to land disposal of low-level radioactive waste. As discussed in Attachment 1, the petition is based on no significant new technical or cost information.

The petition is instead based largely on a misreading of 10 CFR Parts 20 and 61, and philosophical arguments regarding analysis of intruder scenarios that were, in fact, adequately considered in 1982.

Stability in the regulatory structure for low-level waste disposal is an important consideration.

The actions sought by the petition would not shed new light on technical knowledge of low-level waste disposal.

Rather, such a rulemaking would disrupt, destablize and prolong the process of establishing the new disposal facilities required to implement the federal Low-Level Radioactive Waste Policy Amendments Act. If NRC were to accept the petition, all or in part, a rulemaking process of 2-3 years is likely.

With waste classification in question, no state would likely license a new facility until the matter was resolved.

This would essentially encourage a moratorium on licensing new LLW facilities.

Any action to amend the 10 CFR Part 61. 55 waste classification limits would necessarily create problematic incompatibility with the federal Low-Level Radioactive Waste Policy Amendments Act of 1985.

Section 3 (a) (1) of that Act defines the extent of State responsibility for LLRW disposal based on the Part 61.55 limits as of January 26, 1983.

A decision to lower the Class C limits, would create a "de facto" orphan waste category.

JAN 2 1 7993 AcknowledgGd by card.............................. "

Secretary of the Commission September 18, 1992 Page 2 The bases for the petition to change the NRC waste classification system relate to changes in 10 CFR Part 20, changes in bases for cost comparison, and adequacy of intruder analyses.

The arguments may, at first, appear to be valid, but upon careful analysis must be rejected.

The petition should be denied because:

1)

Changes in 10 CFR 20 dose limits are not germane to the petition's arguments associated with intruder protection.

Part 10 CFR 20 limits are regulatory dose limits for the general population and not pertinent to an "accidental and hypothetical event" 1

• 2}

While cost comparisons were considered in NRC' s supporting documentation for the rule, they were never the primary consideration.

Within the context they were used, the comparisons are as valid today as they were in 1982.

3)

Since there is no statutory requirement for intruder protection analysis, the fact that NRC developed criteria and conducted such a rigorous analysis is commendable.

The arguments against the analyses performed in 1982 are based on no significant new information.

4)

The performance assessment modeling studies referred to in the petition were conceptual. This type of study is valid as a tool in assessing the broad environmental impacts of disposing representative waste streams at generic, or conceptual "worse case" sites. Actual licensing evaluations, however, must be based on

detailed, site-specific source

terms, site characteristics, and design plans.

5)

It invites creation of a "de facto" orphan waste category for which States are responsible but no specific disposal regulations exist.

These points are discussed in further detail in Attachment 1.

The petition, by selectively attacking 10 CFR 61.55, misses the whole point of 10 CFR Part 61: the systems approach to waste management.

Part 61 is a performance - based rule which relies on a series of interrelated technical, regulatory, and institutional 1NUREG-0945, Final Environmental Impact Statement on 10 CFR Part 61 "Licensing Requirements for Land Disposal of Radioactive Waste" November, 1982 Vol 2 p. B-40.

Secretary of the Commission September 18, 1992*

Page 3 protections to affect a redundant system of radiation protection.

That has always been the rule's strength.

The proper place for the petition's concerns to be raised is during licensing proceedings on specific, proposed facilities and how intruder protection is afforded in that specific circumstance.

For these reasons and arguments presented in Attachment 1, we respectfully urge the NRC to deny the petition submitted by the New England Coalition on Nuclear Pollution. If you have any questions please contract me at (916) 624-9316.

sincerely yours, Ronald K. Gaynor Senior Vice President RKG: lps cc:

D.J. Womeldorf - California Department of Health Services R. Sauer -

US Ecology, Inc.

U.S. NUCLEAR REGULATORY COMMISSIO~

DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION OoC\Jment Statistics Postmark Date q

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Add' Spe Response to Arguments For Changing Nuclear Regulatory Commission (NRC) Low-Level Waste (LLW) Classification system Brought By New England coalition on Nuclear Pollution The Petition Argues:

"The original EIS analysis was based on a 500 mrem/yr dose to inadvertent intruders, itself derived from then current guidance from ICRP, NCRP, EPA and NRC.

Present guidance would limit the dose to intruders to a level of 100 (mrem/yr),

rather than 500 mrem/yr.

The waste classification system NRC adopted was dependent on the level of intruder doses allowed."

The petition confuses regulatory limits with numeric limits used as a basis for setting regulatory standards.

It is true that 500 mrem/yr was used as a basis for the "top end" of the classification system but not because it had been regulatorily or statutorily mandated.

Rather, the limit was based on a combination of factors in the EIS process1

• Furthermore, a much more rigorous 25 mrem standard was used for the bulk of the classification system.

In 1982, NRC considered and rejected requests from industry2 to use a much higher limit.

In the Final Environmental Impact Statement (FEIS) for Part 613,

NRC agreed with the U.S. Environmental Protection Agency {EPA) that it was not appropriate to set a specific limit for the intruder performance objective "although a limit should be used as a basis for waste classification concentration limits in 61.55." This was the proper approach.

The petition asserts that recent changes in 10 CFR Part 20 require changes in Part 61.

As long as a LLW facility is under regulatory control, the Part 20 regulations or the more stringent Part 61 regulations for radiation protection apply.

This was true in 1982 as it still is today.

However, the petition ignores key points about the Part 61 rulemaking's intruder analysis. First, there is no statutory mandate or definitive guidance for such an analysis.

Secondly, the analyses were based on hypothetical "loss of 1NUREG-0945, Final Environmental Impact Statement on 10 CFR Part 61 "Licensing Requirements for Land Disposal of Radioactive Waste" November, 1982 Vol 2 p. B-41.

2IBID pp B-38,39.

3IBID p. B-4 0.

regulatory control" scenarios.

The hypothetical, qualitative nature of the analyses was acknowledged by NRC in 1982.

It is noteworthy that there is no statutory requirement for intruder protection.

In fact, the analysis of intruder protection in Part 61 is the most rigorous analysis that we are aware of by an federal regulatory body.

Regarding the type of analysis that was performed, Appendix B states:

"Inadvertent intrusion into a LLW disposal facility is a hypothetical event which may never occur.

NRC's objective is to ensure that if it should occur, the exposure to the individuals involved would not be unacceptably high.

Since it is not possible to control today what may happen several hundred years in the future, NRC is controlling the concentration of waste disposed of today such that if someone should contact it through reasonable uses to which the site could be put in the future, the individuals involved would not receive a high exposure.

NRC used 500 mrem as a basis for determining the concentration limits in waste which would result in actual potential exposures to an inadvertent intruder of a few 100 mrem at 100 years and a few mrem at 500 years.

Thus the performance objective is to keep potential exposures to an inadvertent intruder to a dose limit that is not unreasonably high given the accidental and hypothetical nature of the event.

Using 500 mrem as a

limit to calculate concentration limits yields potential exposures of a few mrem after 500 years. 114 In its intruder analysis, NRC hypothesized loss of regulatory control and performed a qualitative analysis based on such a hypothetical situation.

NRC was not advocating loss of control; simply recognizing its potential in a hypothetical analysis.

NRC appropriately caveated its analysis in the 1982 FEIS.

Based on comments from EPA on the DEIS and responses, there was no regulatory requirement that NRC adopt 500 mrem/yr as a limit to evaluate inadvertent intruder scenarios.

NRC employed the value in evaluating intruder protection based, among other things, on public input suggesting values both above and below 500 mrem/yr.

That 500 mrem/yr was equivalent to a regulatory limit for releases to the general public for licensed activities was convenient, but not necessary to the hypothetical scenarios being analyzed.

In response to comments from EPA on the draft EIS, NRC deleted the 4IB ID p. B-40.

numerical standard from 10 CFR 61.42, Protection of Individuals from Inadvertent Intrusion.

This allows for a site specific analysis of intruder protection in keeping with the principle of ALARA and the specific licensing action involved.

The Petition argues:

"A second change affects the cost basis used to compare costs of different means of disposing of waste.

At the time of the original EIS, it was assumed as a base case that low-level radioactive waste would be disposed of in shallow-land burial facilities on an "eastern humid site."

Shallow-land burial was assumed to be substantially cheaper than alternative facility designs, and cost considerations were a factor in determining which wastes should be disposed of in facilities licensed under Part 61.

In fact, we now know that there will be no eastern shallow-land burial facilities."

The argument citing changes in the bases for cost comparison as a basis for supplemental rulemaking is flawed.

The argument presupposes that in 1982, NRC made a calculated decision that there was a tradeoff between public health and safety and cost. Taken to its extreme one could presume a logic of "you must meet the 25 millirem standard unless it costs too much".

In fact, the record shows (as the petition points out to make an entirely different point) that over the last 10 years no cost is too high to protect the public from ionizing radiation.

This is evidenced by the escalating costs of LLW disposal at existing facilities and projected costs at planned facilities.

Experience in attempts to site new commercial facilities over the past decade has shown that costs are somewhat independent of the type of facility to be employed.

Obviously there are differences in construction and design costs between a shallow land burial facility and a concrete structure.

However, these differences are offset by site characterization, licensing, public involvement, administrative, and delay costs which are facility-independent and in the long run minimize design and construction cost differentials.

It is noteworthy too that the petition's logic in the cost argument seems to suggest that the facility development process has "self corrected" the waste classification concern articulated by the petition.

In fact, LLW facilities under development will be more expensive than envisioned in 1982.

This is due to the rigorous site selection and characterization process, meticulous license application development in response to NRC regulatory guidance, requirements for facilities with additional safety features, and close public and regulatory scrutiny.

The net effect of this experience will be to reduce the potential for both off site releases and intruder exposure.

The Petition Argues:

"The original analysis was based on the assumption that all intrusion would be inadvertent.

Recent studies in Vermont show that, when this assumption is no longer utilized, the ability of near surface facilities to contain all of the currently classified low-level radioactive waste stream is called into question.

New intrusion scenarios should be analyzed, since the EIS's choice of just three scenarios cannot withstand careful scrutiny."

As discussed

earlier, NRC recognized hypothetical and qualitative aspects of assessment in the FEIS for Part 61.

and acknowledged the inadvertent intrusion It is ironic that the petition castigates NRC on a prudent attempt to extrapolate the impacts of its regulation into a hypothetical scenario devoid of regulation.

As stated earlier there is no statutory requirement for intruder protection.

It is apparent, however, that NRC recognized that 1) there is a potential for loss of institutional controls in the far future and 2) if such loss occurred, there is an increasing probability that inadvertent intrusion could occur.

It is evident from Section 61.7 and elsewhere that NRC never has advocated cessation of institutional control after 100 years.

NRC did, however, in its analysis of exposure scenarios, employ a conservative assumption that such controls would be lost after 100 years.

Since the EIS is a public disclosure document, all assumptions, (both qualitative and quantitative,) are considered.

However, qualitative assumptions associated with hypothetical outcomes in a "deregulated scenario" cannot be evaluated in the same light as quantitative data and analysis associated with the establishment of discrete regulatory limits.

The petition argument that NRC should consider deliberate intrusion in a dose assessment suggests that NRC has a moral obligation to protect people from their own stupidity.

It is analogous to insisting that the highway department design roads to deny people the opportunity to jump in front of oncoming cars.

It is clearly beyond the scope of any regulatory regime to prevent people from ignoring reasonable warnings and protections and doing harm to themselves.

Inadvertent rather than deliberate intrusion is the appropriate benchmark for assessment of dose impacts on future habitants or users of a former LLW facility.

NRC did include in 10 CFR

61. 7 (b),

61.14,

61. 52 and elsewhere every reasonable and prudent protection from all types of intrusion by requiring government land ownership, deed restrictions, permanent monuments and passive controls.

NRC need not consider every conceivable intruder scenario in its EIS assessment.

The petition correctly alludes to the myriad of circumstances which are impossible to predict and quantify that could impact exposures from intrusion:

time to loss of control, type of intrusion, duration of intrusion and socio-cultural behavior changes.

These limitations are self evident and were equally so in 1982.

In fact, NRC acknowledged the limitations and the limitations were commented upon during the comment period for the DEIS.

Raising them again a decade later would serve no purpose.

The EIS for Part 61 does not eliminate the need for facility specific analyses based on site specific data. Potential exposures for a range of scenarios (both release and intruder) must be projected for individual sites based on specific site and design information.

Such analyses are far more meaningful than the type of broad scope analyses, covering a range of conditions, that NRC would undertake in a supplemental rulemaking.

These facility-specific analyses provide the proper vehicle to address the petition concerns on a site specific basis. In fact, site specific analysis can be and have been used as a basis for establishment of waste inventory limits as license conditions.

Facility-specific licensing processes thus provide the appropriate vehicle for addressing the petition's concerns.

In making the philosophical argument about dose impacts on an inadvertent intruder, the petition assumes that such intrusion would represent the most significant risk of dose from "unregulated" ionizing radiation.

As is the case today, the hypothetical individual has many "opportunities" to be exposed to unregulated ionizing radiation.

For instance, exposures to radon in basement gas or radium in pipe scale are as likely or more likely to be the intruder's main source of ionizing radiation as intruding upon a properly closed and stabilized LLW facility.

In fact, if one were to conduct a probabilistic risk assessment of all sources of ionizing radiation, the potential risk due to intrusion upon a 10 CFR Part 61 licensed LLW site would be minuscule.

In fact, had NRC done such an assessment it would probably have a basis for significantly raising the 500 mrem benchmark for inadvertent intrusion analysis and increasing allowable concentrations of certain waste streams.

We are not advocating such an analysis or arguing that the classification limits should be raised. These points are raised to support the adequacy of the limit and supporting analyses presented in the 1982 FEIS.

In

summary, rigorous performance assessments for individual licensing actions are the appropriate vehicle to assess the ability of a specific facility to meet the Part 61 performance objectives.

Such assessments have the benefit of detailed, specific information related to waste streams, site characteristics, site and design as well as operations constraints and administrative controls required by license.

Performance assessment of Southwest Compact waste streams evaluated for the proposed Ward Valley disposal facility involves potential doses many orders of magnitude below both actual and inferred regulatory limits.

One can always hypothesize highly improbable "worst case conditions" completely ignoring actual site conditions, design standards as well as licensing and administrative controls which would allow the 500 mrem/yr intruder "standard" to be exceeded.

Such an analysis would have little value in either an actual facility performance assessment, or the rulemaking sought by the petition.

SEP-20-92 S UH 22 : 24 P.0 2 DOCK!-"f-Nl'Bffl+++

ETITION RULE PRM ft,/- e2._...

Danna L. Eerley, Chairman Cedars-Sinai Medical Center CALIFORNI

/..57-,C;(!...:3~ff5)

RADIOACTIVE MATER.IAlS

er * 'LJ MANAGEMENT FORUM J~NI C

'92 SEP 21 All :Q6 8700 Beverly Blvd.. Los Angeles, CA 90048 (310) 8S5-4336

• Fax (310) 967-0143 Peggy Carretta, Admi(!istrative Director

• r.

,-P.O. Box 2151 UIJl,l'H - It I Oran!)evkle. CA 95662 (916) 988-!1462 1

• Fax (916) 988-5201 Kenneth J. Widder, M.D., Chairman-elect Molecular Biosystems, Inc.

Alan Pasternak, Ph.D., Technical Director P.O. Box 1638 Lafayette, CA 94549-1638 (510) 283-5210

• Fax (510) 283-5219 10030 Barnes Canyon Rd., San Diego, CA 92121 (619) 452-0681

• Fax (619) 452-6187 S.ECRETAEIV a_nA. Walh W'eral E1ect11c Ca.

~IEF FINANCIAL OFFICER AOMrt W. Loren-i Pacific Gaa & Eleclt1c Co.

PAST CHAIRMAN Thoms J. Connolly, Ph.I)., P.E.

Stanloro Unl\19r&lly i!OAIID MEMBEM

._ii,:o,~1~1; Aober1 F. Cor,..11>>, M.O.

l':3lllornlJ Mcct,cal Asv.ic,a1,on Ao~ J. t.un, M.D.

unt.1era1ty cl caJilornia, San **~nc,sco C*rol S. Marcua. Ph.D., M.O.

Hart-UCLA Mcd,c:.l c..n1.,,

Ar* Tah,,..ulan, Ph.D.

U,,1vera11y of Ca*irornla, San Francisco EDUCATION Myron PollycoY9, M.D.

Univr.r~ily or C~lito,nia S.n **anc,sco DIVld. c. Price, M.O.

unIvarsILy 01 C8llfOfllt1:I. S&u Frt1r,C1tscU a a

a. Trlpollea W

'&'IY of Ce~tornla, IIVlna UTILITIE9 Kurt J. Kam..,.,er San Diego Gas & Eloclr,c Co.

l!. &colt Uedllng Soulhern Cahrornla Edlaon Co ENGINEERING I SERVICES Robert J. Budnilz_ Ph.D.

Fulufc ne1.0urcea A~aoc., Inc Wllllarn H. Cromwell W.:1sle Con~tnimanl S~leme T1111me1 A. Orey Thomas A. Gray & Assoc wrn1.am A. Lar,;an TRW Space ana Defense Sector NDUSffllAL Alhet1 l. Balelll RICft8'd D. f'renklln

~stinghou.. Elac;lno Corp Rlc:hal'tl P. Yanek General Alomic$

ATUAOE John W. Clou Northern SIa1ea Power Co Steven R. F~y ICN Bion\ed1c..1!1I*, Inc.

PalrtckW. HughM Atlzona PuDUc Service Co Jamee M. waollandan, M,D, Uruvers~y or /mzor,a September 21, 1992 The Secretary of the Conm1ss1on U.S. Nuclear Regulatory Conwn1ss1on Docket No. PRM-61-2 Washington, DC 20555 Atent1on: Docket1ng and Serv1ce Branch The California Rad1oactive Materials Management Forum respectfully requests the Convnfssion to deny the petition for rulemak1ng submitted by the New England Coalition on Nuclear Pollution. Inc. (FR Vol. 57, No. 142. July 23, 1992).

Our pos1t1on fs that there is more than enough conservatism built into the C011VT1issfon's regu1ations for low-level radfoactfve waste (LLRW) disposal in 10 CFR 61 to accomodate the concerns raised 1n the petftfon. Waste streams as defined 1n 10 CFR 61.55 are currently disposed of safely at the three ex1st1ng disposal fac111ties pursuant to 10 CFR 61.

The new disposal facflftfes will have to meet these crite~ia. All repositories we know anything about, including the proposed LLRW disposal facility at Ward Valley fn California. wfll produce actual radiation doses to the public far below the 10 CFR 61 re1 u1rements.

Therefore, the requested changes in the Part 61.55 c assff1catfon scheme will have no operational s1gn1f1cance other than to create an orphan waste class.

We regard the petition as a transparent attempt to 1ntertupt ongoing efforts in a number of states and compacts to develop new LLRW disposal fac111t1es pursuant to the requ1rements of the federal Low-Level Radioactive Wa~te Policy Amendments Act of 1985.

i=l~

Alan Pasternak. Ph.D Technical Director. Cal Rad Forum cc: Corporate and Institutional Members of Cal Rad Forum Board of Directors, Cal Rad Peg~r~rretta JJ.\N 2 1 1993 Acknowledged by card............................ M....

I

U.S. NUCLEAR REGULATORY COMMISSIO~

DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY OF THE COMMISSION Document Stattslics PostmarkData ~

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9/~o/9'..2.

Coples Received

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Jy

SEP-20-92 SUN 2 2 :24 Peggy Carretta, Administrative Director P.O. Box 2151 Orangevale, CA 95862 (916)988-9462

• Fax(916)988-5201 DATE:

FROM:

TO:

PAGES TO FOLLOW:

MESSAGE:

+++++++++++

P.01 CALIFORNIA RADIOACTIVE MATERIALS MANAGEMENT FORUM Alan Pasternak, Ph.D.* Technical Director P.O. Box 1638 Lalayene, CA 94549-1638 (510) 283-5210

• Fax (510) 283-5219 F A X T R A N S M I S S I O N ALAN PASTERNAK. TECHNICAL DIRECTOR, CAL RAD FORUM

{~~-~fl ~

DOCKET NUMBER PETITION RULE PAM (pl-~

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(_ 57-P/2-32'=f4~

September 19, 1992 COMMENTS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY, I ON PRM-61-2, PETITION FOR RULEMAKING FILED BY NEW EN COALITION ON NUCLEAR POLLUTION, INC.

(57 FED. REG. 3 23, 1992}

In this petition for rulemaking, the petitioner NECNP reques the NRC to revise its regulations concerning the classification of low-level radioactive waste to restrict the number and type of waste streams which may be disposed of in near-surface disposal facilities.

The petitioner bases its petition on three factors:

(1) the recent revision to 10 CFR Part 20 which establishes 100 mrem per year as the new dose limit for members of the public in unrestricted areas, compared to 500 mrem per year dose which was the basis for Part 61; (2) the consideration of deliberate intrusion scenarios, not considered in the EIS for Part 61, which would result in doses exceeding this limit; and (3} cost differentials between near-suface disposal and a geologic repository were inflated in that no site East of the Mississippi River will use shallow land burial, but instead will use more expensive engineered structures.

Petitioners suggest as a solution the removal from the low-level waste classification certain long-lived, high-activity waste streams.

OCRE supports this petition.

The petition is well-supported and factually sound. Adopting the petitioner*s proposed solution would eliminate the current obstacles facing the United States regarding low-level waste disposal.

Eliminating the waste streams which carry the greatest hazard longevity would create more public acceptance of low-level waste disposal facilities.

This would eliminate the delays in the low-level waste programs and reduce the need for extended on-site storage of low-level waste (at least the Class A waste, which constitutes the largest component, by volume).

Much of the public opposition to the sit"ng of low-level waste disposal facilities is due to the hazard longevity of certain constituents of the waste stream.

It is these constituents which the petitioners seek to remove from the classification of low-level waste suitable for near-surface disposal.

OCRE urges the NRC to grant this petition for rulemaking.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060- 2406 (216) 255-3158 JAN 2 1 1993 Acknowl dged by card..................................

U.S. NUCLEAR REGULATORY COMMISSIO~

DOCKETING c\ SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date --4-.,1,'--"""-~..a....;;:;..,__~ ;.....:.._~L %6 /p -2_,

Copies Recei Add'

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Washington State University OOCKE'I' NUMBER-o<

PETITION RULE PAM ~ /:,

DOCKETED USNRC

( !5':rfll 5:1':t4B)

Tri-Cities

• 92 SEP 21 A11 :01 1 00 Sprout Road Richland WA ei9'15:C 509-37 j -31, b

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Sept. 14, 1992 Secretary of the Commission US Nuclear Regulatory Commission Washington, DC 20555 Attn.:

Docketing and Service Branch 6012 W. Ridgecrest Dr.

Spokane, WA 99208 Tel.:

509-468-2917 Fax.:

509-468-1618

Subject:

PETITION TO NRC (DOCKET NO. PRM-61-2) BY NEW ENGLAND COALITION ON NUCLEAR POLLUTION FOR RULEMAKING TO MODIFY 10CFR61.55 WASTE CLASSIFICATION RULES I am writing in support of the subject petition.

The petitioners suggest that a small volume of currently accepted waste streams containing very-long-lived radionuclides might be found unacceptable in a reexamination of the regulation. In particular, "certain ion-exchange resins and reactor components (both NFRCOMP and decommissioning components) are entirely responsible for the long-term doses from low-level radioactive waste."

[Note in passing:

My understanding is that decommissioning components are not covered by 10CFR61.J One of the bases for requesting a modification is an anticipated change from 500 to 100 mrem/yr as the acceptable intruder dose.

Another is that other intruder scenarios are plausible besides those considered.

I agree with both points.

There is, however, an even more obvious reason to review 10CFR61.(l)

Even a casual review of Table 1 of the regulation, which covers very-long-lived radionuclides, shows an anomaly in defining Classes A and c.

Class A material, by definition, should pose no hazard 100 years after closing a disposal site.

Essentially, sanitary land-fill disposal practice will suffice for Class A so long a s the site is controlled for the 100 years.

However, for waste containing radionuclides with half-lives far in excess of 100 years, this makes sense only if the concentration is of the order of the natural radioactivity of the soil.

Put another way, it should result in no more than the 10 mrem/yr suggested for BRC material.

Yet the permitted nuclide concentrations for Class A are only one-tenth of the Class C concentrations based on a 500 mrem/yr dose.

JAN 2 1 1993 Acknowledged by card..................................

This may appear to be a discrepancy of only a factor of 5.

It is actually more likely 500.

The reason is that the Class C concentrations in Table 1 are 100 times higher than those actually calculated in the DEIS as leading to the performance objective dose of ~00 mrem/yr to an inadvertent intruder.

Two factors of 10 were applied to lead to the Table 1 values.

The first factor resulted from the fact that the nuclides in question tend to be in activated solids.

Therefore, a credit of a factor of 10 was given for the "inaccessibility of the nuclides."

While this may be reasonable if the time scale of interest is 500 years, it cannot be justified for radionuclides that have decayed negligibly in 500 years.

Clearly the 500 year time scale of 10CFR61 does not imply an absence of responsibility beyond that time interval.

The second factor resulted from the fact that very-lonq-lived nuclides come from a small fraction of the assumed waste stream.

Therefore, because the limits to be placed in Table 1 were to apply to waste as deposited, it was pointed out in the DEIS that this fraction would be strongly diluted by the remainder of the waste stream.

Nevertheless, the calculated value, now increased by a waste form credit of 10, was to be used in the interest of conservatism.

In the FEIS, however, a reanalysis, not detailed, resulted in another increase of a factor of 10.

Both the inherent dilution and inaccessibility due to depth of disposal were cited to support this factor.

Regarding dilution, if activated metals were randomly distributed among the waste streams, the probability of discovery by an intruder might be low, but the consequences would be great.

However, the assumption of random distribution in shallow land burial bears little resemblance to actual practice.

Plans for engineered facilities actually show Class C waste to be concentrated.

Regarding credit for depth of disposal, this is inconsistent with the general philosophy of the FEIS that .

. the intruder barrier is effective for 500 yr.

At 500 yr all waste is unrecognizable It is also contrary to common sense to suppose that a 5 meter cover can be assumed effective for thousands of years--a necessary assumption if the public is to be protected from the disposal of very-long-lived radionuclides.

It seems clear that it must be assumed that control of a near-surface burial site is lost after thousands of years.

This is reason enough to limit the concentrations of very-long-lived radionuclides acceptable for near-surface burial to levels found in nature.

The logical option, of course, is to remove such radionuclides from the definition of low-level waste, as some European countries have already done.

Ref.:

D. G. Doran, "Toward improved guidelines for reduced activation materials development in the US", to be published in J. Nucl. Mat. 191-194(1992).

Preprint attached.

It contains references to the quotes in this letter.

U.S. NUCLEAR REGULATORY COMM1ssai

DOCKETING & SERVICE SECTION /. :

OFFICE OF THE SECRETARY /

.\1 OF THE COMMISSION

."~

Documeni Statistics

Journal of Nuclear Materials 191-194 (1992) JNM2108A North-Holland

-ooo s

journal of nuclear materials Toward improved guidelines for reduced activation materials development in the US D.G. Doran Washington State University Tri-Cities, JOO Sprout Rd., Richland, WA 99352, USA A principal goal of the US fusion materials program is to develop new materials so as to minimize the activation of future fusion reactor structures. The objective is to improve the environmental acceptability of fusion power. The current guideline is that structural materials should meet the requirements of 10CFR61 for near-surface burial as radioactive waste. Analyses of the bases for the concentration limits in 10CFR61, and the trend toward conservatism in radioactive waste disposal, strongly suggest that the criteria in 10CFR61 will not be conservative when applied to fusion reactor waste materials. It is recommended that emphasis be placed on developing a strategy for the controlled recycling of radioactive materials within the nuclear industry. It is also recommended that a systematic sampling of the public perception of fusion power be initiated.

1. Introduction A principal goal of the US fusion materials program is to develop new materials so as to minimize the activation of f~~re fusion reactor structures. The cur-rent guideline(!§Jthat structural materials should meet the requirements for near-surface burial as radioactive waste, as recommended by the Conn panel [l].

Near-surface burial of radioactive low level waste (LLW) is regulated in the US by Part 61 of Title 10 of the US Code of Federal Regulations (10CFR61). This regulation was prepared by the US Nuclear Regulatory Commission (NRC) in the late 1970s. It defines specific activity limits (in Cijm3) for near-surface burial for several long-and intermediate-lived radionuclides. Of three classes of waste in 10CFR61, class C permits the highest activity so it has been the near-term target in materials development. Because 10CFR61 was devel-oped to regulate the waste streams from the existing nuclear industry, the list of radionuclides it contains is inadequate for fusion. This list has been supplemented by several authors using the NRC calculation method-ology, most recently and completely by Fetter et al. [2].

The methodology, in summary, is to set a perfor-mance objective (limit) on the acceptable exposure to the public, define the waste stream(s), explore credible pathways by which the public might be exposed to radwaste products that have been placed in a reposi-tory, select the pathway(s) requiring the greatest con-servatism, and back calculate concentration limits for the critical radionuclides in the waste stream such that the performance objective is not exceeded.

It has been recognized for years that 10CFR61 is not formally applicable to fusion wastes because it applies only to wastes defined in the Atomic Energy Act of 1954. Nevertheless, this regulation, as supple-mented, has been assumed to provide reasonable guidelines for selecting acceptable materials composi-tions. That is, the calculated radioactivity of a candi-date material in an assumed application should satisfy (at least) class C limits as one acceptability criterion.

The objective of the present work is to assess the use of 10CFR61 by the US fusion materials program and to consider alternative guidelines for materials development.

2. Waste disposal 2.1. Examination of J0CFR61 The class C limits in 10CFR61 are based on the following:

(a) A variety of waste streams typical of the current nuclear power industry (excluding decommissioning of reactors, unfortunately, because this would most closely resemble a fusion waste stream) and of medical appli-cations of radioisotopes; (b) Maintenance of sti:u~~l_i!1tegrity of the waste (as packaged, if neces~~ yr; (c) A minimum 5 cover (or equivalent intruder barrier) at the re

• ory for 500 y; (d) A perfonnance objective of no more than 5 mSv /yr (500 mrem/yr) exposure to an inadvertent intruder.

(Although used in the fonnulation of the regulation, this perfonnance objective is not explicit in 10CFR61.)

The critical scenarios were found to be where an intruder inadvertently builds a house and/or estab-0022*3115/92/$05.00 10 1992 - Elsevier Science Publishers B.V. All rights reserved

ln 2

D. G. Doran / Gui deli= for maurials development in the US lishes residence, complete with garden, over a waste site. The critical time period is 100 to 500 yr after site closure - for the first 100 yr the site is assumed to be under institutional control so inadvertent intrusion is not possible.

Long-lived nuclides are of primary concern here.

Concentration limits are given in 10CFR61 for the beta and gamma emitters 14C (5730 yr), 59Ni (76000 yr),

94Nb (20000 yr) and 99Tc (213000 yr)

Consider 94 Nb for example. The limit in 10CFR61 is 0.2 Cijm3 in an activated metal. The limit calculated initially in the Draft Environmental Impact Statement (DEIS), however, was only 0.002 Cijm3 [3]. This is the level at which, given the original assumptions in the pathway analysis, an inadvertent intruder might receive the performance objective dose of 5 mSv /yr.

The effects of waste form are considered in the DEIS. It is argued that, if the nuclide is in an activated metal or permanently fixed as contamination on a metal, the limit can be raised a factor of 10 (yielding 0.02 Cijm3 for 94Nb) to account for the "inaccessibil-ity" of the nuclides [4]. (This argument is clearly con-cerned only with dose due to intake of radionuclides into the body. It can be argued that the potential for dose by direct exposure is increased by the concentra-tion of radionuclides in an activated metal. This point is implicitly overridden by the assumption of dilution of any activated metal by the much larger volume of other types of waste.)

This limit is the maximum average concentration of 94Nb in waste as deposited. The DEIS points out that, if this limit is used as an operational limit for waste as generated, it will be very conservative. This is due to the dilution by the variety of wastes at a typical dis-posal site, most of which contai~-tie or no 94 Nb.

Nevertheless, this limit was adopt In he DEIS as an operational limit in the interests o nservatism and ALARA.

In the Final EIS, however, a reanalysis by the NRC reduced the dose estimate for the intruder-agriculture scenario and the class C limits for all nuclides were increased by a factor of 10 [5]. The limit for 94Nb in activated metal became 0.2 Cijm3*

The reanalysis is not detailed in the FEIS, but two factors are explicitly mentioned: (1) dilution by other waste streams, and (2) depth of disposal.

Regarding the latter, the N C stated "that not consid-ering that class C waste (w ich has been disposed of at a minimum depth of 5

) would still be difficult to contact even after 500 ;,\vas an unnecessarily conser-vative assumption" [5].

is statement conflicts in ef-fect, however, with the neral philosophy of the FEIS that "the class C intr er scenario assumes that the intruder barrier is eff ctive for 500 yr. At 500 yr all waste is unrecognizab... " [6]. For nuclides such as 94Nb, credit for dept of disposal is not conservative for periods that great y exceed 500 yr.

The immediate questions, then, are:

(1) Would the analysis leading to the base value of 0.002 Ci/m3 for 94Nb be changed by considering fu-sion waste streams?

(2) Would the two factors of 10 leading to the final value of~.* m3, one of which is a credit for waste

• fonn an On a credit for inherent* dilution, be valid for fusion ste streams?

Another question that must be raised is/~)

(3) Is the 5 mSv /yr performance obje-ctive suffi-ciently conservative for radionuclides with half-lives much longer than 500 yr?

2.1.1. The base value and fusion waste The base value (0.002 Cijm3 for 94Nb) is indepen-dent of the waste stream. It depends only on the pathways to the biosphere that are analyzed and on related assumptions. A new study of any waste stream might produce different results because of newer data, different pathways analyzed, different assumptions, and the correction of errors.

An analysis specific to fusion has, in fact, been made by Fetter et al. [2]. Although no new pathways were examined, the results differ significantly from 10CFR61 in many cases for all the other reasons given above. The agreement was good, however, for 94Nb.

The arbitrary factors of 10 in 10CFR61 were included but not critically examined.

2.1.2. Waste form credit In the LLW streams considered by the NRC, long-lived nuclides are found at relatively high concentra-tions only in activated metals, especially nonfuel reac-tor components. This will be true in the fusion case as well, although these nuclides will also appear as corro-sion products in the reactor coolant, in getters and filters, as contamination on components exposed to the plasma chamber, etc.

For nuclides contained in activated metals, some credit for waste form seems reasonable when 500 yr is the longest period considered. However, such credit cannot be justified in a conservative analysis for nu-elides that have decayed negligibly at 500 yr.

2.1.3. Dilution credit The concentration limits in 10CFR61 for intermedi-ate-lived nuclides are, in practice, driven by the re-quirement that the potential dose to an intruder at 100 yr (time of closure) be kept below 5 mSv /yr. The long-lived nuclides are essentially benign at 100 yr because they comprise only about 0.1 % by volume of the fission waste stream. The consequence of this dilu-tion is that£)at 500 yr, the calculated potential expo-sure to an intn\der is only 1 % or so of the performance objective exposure, as is emphasized repeatedly in the FEIS [7].

• "---,0v..,.,/rJ. L. c--~

Cs D. G. Doran / Guidelina for materials development in the US 3

This "inherent dilution" is the justification for the dilution credit factor of 10. In evaluating the applica-bility of this inherent dilution credit to fusion waste, an important parameter is the fraction of the 100 yr intruder dose that is due to long-lived nuclides (about 1 % for current waste streams).

Cannon et al. [8] estimate that activated solids would comprise about 10% of the waste from ST ARFIRE-type fusion rea Intermediate-lived fission prod-ucts such as 137 u, ~hich dominate the.NRCs intruder dose at 100 uld be absent in the fusion case. If the c~tration of other nuclides with half-lives of tens were low, then an increase by a factor of 10 in the

• its of longer-lived nuclides might not have a negligible effect on the 100 yr intruder dose as it does in the fission case.

What is needed to resolve this question is a good description o0!f e total fusion waste stream. Without it, taking credi[;}°r inherent dilution is of questionable validity.

2.1. 4. Performance objective The performance objective of 5 mSv /yr was consis-tent with international practice when 10CFR61 was formulated. To remain consistent today, the perfor-mance objective would have to be lowered to perhaps 1 mSv/yr.

The magnitude of the performance objective, for the waste condidered here, can be questioned on other grounds. Consider the apparent inconsistency that is generated between 10CFR61, when it is assumed valid for very long-lived nuclides, and the NRCs proposed criterion for below-regulatory-concern (BRC) waste. It is the position of the NRC that a large volume fraction of current LLW is of such low radioactivity as to be classified as BRC and therefore suitable for disposal in ordinary sanitary landfills. The BRC performance ob-jective (July 3, 1990) [9] is a maximum of 0.1 mSv /yr (10 mrem/yr) to individuals in a "critical group". An inadvertent intruder is assumed here to belong to a critical group.

The FEIS position in the preparation of 10CFR61 is that no credit can be taken for waste form, packaging, or site practice (e.g., layering of wastes) after 500 yr; i.e., any distinction between near-surface burial and sanitary landfill practices is, in principle, lost. Any basis for the difference in performance criteria, 5 vs 0.1 mSv /yr, should also be lost. Using the BRC perfor-mance objective would reduce the 10CFR61 value for 94Nb from 0.2 to 0.004 Ci/m3. or, if no credit is taken for either waste form or dilution, 0.04 mCijm3* The latter value approaches the average activity of US soils

- not unreasonable for BRC waste.

A related approach that shows inconsistency be-tween 10CFR61, as applied to long-lived nuclides, and proposed BRC criteria is a consideration of class A waste. Class A limits are one-tenth of class C values for long-lived nuclides, 0.02 Ci/m3 for 94Nb in an acti-vated metal. Oass A waste, by definition, must present no hazard to an inadvertent intruder after 100 yr.

Because the site is assumed to be under institutional control for 100 yr, no barriers arc needed for class A burial - it can in principle be deposited as in a sanitary landfill. The class A limits for very-long-lived radionu-clides should be expected, therefore, to correspond to BRC criteria. Using the BRC performance criterion, the class A limit for 94Nb would be 0.0004 Ci/m3, even if credit were taken for waste form and dilution.

2.2. Implementation of UW regulations in the US The current strong trend in the U in other countries, is toward greater conservati the han-dling of radioactive wastes. The current status of LL W disposal is indicated by the struggles within and be-tween the states to establish sites as mandated by the Low Level Radioactive Waste Policy Amendments Act of 1985. The states are encouraged to collaborate in the form of multistate compacts that will negotiate on selecting a waste site to serve the co~t. A few facts gained from a survey by the author: oF the compacts, many of which are still in the fo tive stages, are relevant to the topic of this paper (10].

Of about 13 state compacts, only two permit con-ventional shallow land burial; the remainder require engineered barriers of some kind. In one compact, no credit is allowed for any barrier after 100 yr. In an-other, the law requires zero release after 500 yr, which, as currently interpreted, means that deposited material containing long-lived nuclides will have to be moved before 500 yr elapses. Some compacts require recover-ability of at least class C wastes. Disposal at a few sites will be dominated by decommissioning wastes; these will contain more activated materials than the waste streams assumed in developing 10CFR61. Some com-pacts permit averaging activity over a waste container.

There is an ongoing activity to try to achieve a national standard on averaging criteria. Estimated disposal costs run as high as $1000/ft3 of waste; current charges (including surcharges are under $100.

The reactioµ

• of st e legislatures and the US Congress to t NRes' roposed BRC criteria were so negative that e pr osal is currently being held in abeyance.

3. Recycling Recycling here refers to the reuse of activated ma-terials within the nuclear industry; specifically excluded is any consideration of recycling of activated materials for general use.

Recycling is a potentially attractive option for de-creasing the quantity of radwaste from fusion reactors.

~

4 D. G. Doran / Guidelines for materials development in tM US The major question is under what conditions, if any, could it be made economically attractive. The answer depends in part on technical feasibility issues, required storage times, acceptable surface dose rates for repro-cessing, and measures required to obtain regulatory and public acceptance.

3. 1. Recycling of steels The recycling of steels has been examined to vari-ous degrees since the late 1970s, especially in the UK.

This has culminated in the recent work of Butterworth and colleagues with the important collaboration of industry. They concluded that economic considerations would not preclude recycling in a future UK fusion power industry (11). The swing factor is the cost of replacement steel. They assumed that limiting the sur-face dose to 0.01 Sv /h (1 rem/h} would permit the reprocessing of martensitic steels.

(A recent informal "opinion poll" of US experts by the author revealed, not unexpectedly, a high degree of skepticism regarding recycling of radioactive steels.)

3.2. Recycling of vanadium alloys Butterworth briefly considered recycling of vana-dium alloys (12]. If Nb and Mo impurities are kept sufficiently low, the hands-on surface dose rate of 0.025 mSv /h (2.5 mrem/h} is reached in 100 yr. Pre-sent techniques can achiev4thinin vanadium with no significant increase in cost.'Tra'nd Cr, common con-stituents of candidate vanadium~ may be obtain-able in sufficiently high purity at_~ources, but this is still under investigation (13,14).

On the other hand, 1 mSv /h may be a sufficiently low surface dose, requiring only local shielding. This can be reached in lO@even without achieving very high purity material, as pointed out by Butterworth.

4. Compatibility of recycling/ waste criteria with safety goals A comprehensive discussion of this important topic is outside the scope of this paper. However, safety criteria fonnulated by Pict et al. (15] for selecting elemental compositions of fusion materials are gener-ally less severe than criteria for waste or recycling.

Exceptions Include Mn, W, Bi, and Ti.

5. The public perception of fusion power A principal argument for developing reduced acti-vation materials, and indeed an objective of all fusion power programs, is to enhance the public perception of fusion power. However, we know little about what that perception currently is and how it might be influenced.

Many studies have been made on the public percep-tion of nuclear (fission) power and how it has evolved (16]. It has been influenced by reactor accidents, gov-ernment inability to deal decisively with radwaste, and rising awareness of toxic waste problems (sometimes not differentiated from radioactive waste). It has been influenced only weakly by increased technical knowl-edge.

Miller began a study in 1986 of the development of leadership attitudes regarding fusion technology (17).

Perceptions varied widely among leaders of science policy, utilities, and environmental groups, but were generally positive on fusion. Only about one-third, however, claimed to know, in general terms, the differ-ence between fission and fusion.

This work should be continued. It is not too early to begin systematic sampling of public opinion and knowl-edge of fusion power. There are critical subpopulations to sample: political leaders, leaders of the environmen-tal movement, technical leaders outside fusion, the technical press, the medical community, etc. If the fusion community is going to engage in public rela-tions, and it must, it had better characterize its audi-ence - constituency, opposition, competitors, and the uncommitted - and evaluate its progress. The exper-tise exists to do it and the investment is small.

6. Conclusions (1) It is unrealistic to consider 10CFR61 crite.ria sufficient to permit near-surface burial of future fusion power reactor materials containing long-lived radionu-clides. These criteria are based on the assumption that these nuclides comprise a tiny fraction of the waste stream. These criteria are not sufficiently conservative for designing materials for first wall and inner blanket (i.e., high fluence) positions. Large volumes of blanket, shield and magnet materials far from the plasma, hence exposed only to low fluences, might meet even more conservative activity criteria for near-surface burial in the future. But it is unlikely that near-surface burial will be acceptable for nuclides not benign in 100 yr, except at very low, i.e. BRC, levels of activity.

(2) Conservative concentration limits imply impu-rity levels that are probably too low to be practically obtainable.

(3) Recycling is a positive, desirable goal. Its eco-nomic viability will be enhanced by the increasing cost of disposal of waste containing long-lived nuclides. The enhancement of the potential for recycling should be a goal of facility design.

US industry should be requested to plan and evalu-ate a recycling strategy. This would necessarily include consideration of the production of higher purity struc-tural materials.

D. G. Doran / Guidelina for materials ckvelopmenl in the US 5

(4) Systematic sampling of public opinion regarding fusion power should be initiated.

Acknowledgements The author gratefully acknowledges useful discus*

sions with S. Fetter, F.W. Wiffen, H.L Heinisch~ and SJ. Pict, and the helpful comments of an unknown reviewer. He wishes also to express appreciation to NRC staff for discussions of 10CFR61, but emphasizes that no agreement with the views expressed here is implied. This work was sponsored by the US Depart*

ment of Energy under Contract DE-AC06-76RI..O 1830 with the Pacific Northwest Laboratory.

References

[l] R.W. Conn ct al., Nucl. Tcchnol./Fusion 5 (1984) 291.

[2] S. Fetter, E.T. Clicng and F.M. Mann, Fusion Eng. Des.

6 (1988) 123, and 13 (1990) 239.

[3] Draft Environmental Impact Statement on 10CFR61, Licensing Requirements for Land Disposal of Radioac*

tivc Waste, USNRC Report NUREG-0782, vol. 2, (1981) pp. 7-18.

[4] Op. cit., p. 7.

[5] Final Environmental Impact Statement on 10CFR61, Li-censing Requirements for Land Disposal of Radioactive Waste, NUREG-0945, vol. 2, (1982) p. B-86.

[6] Op. cit., p. B-121.

[7] Op(t

• , p. B--40.

[8] J.B non, Background Information and Technical Ba*

sis r Assessment of Environmental Implications of Magnetic fusion Energy, USDOE Report DOE/ER-0170, Oak Ridge National Laboratory (1983).

[9] Below Regulatory Concern: Policy Statement, US Fed*

eral Register, vol. 55, no. 128 (July 3,_1990).

[10] Sec also: Pamcrship, Under Pressure: Managing Com*

mercial Low-Level Radioactive Waste, US Office of Technology Assessment Report (November 1989).

[11] MJ. Plcws, A.R. Davies and GJ. Butterworth, The Cost-benefit of Recycling Low Activity Steels from Fu-sion Reactors, Culham Laboratory Report CLM-R296 (August 1989);

C.R. Gomer ct al., Fusion Eng. Des. 11 (1990) 423.

[12] GJ. Butterworth, Proc. 15th SOFT, Utrecht (September 10, 1988).

[13] J.R. Peterson, Teledyne Wah Chang, Albany, OR, USA, private communication, 1991.

(14] D. Murphy and GJ. Butterworth, Proc. Workshop on Low Activation Materials, IEA-Paris Report EUR FU BRU/XII-6/91-MATIA 16, vol. 2, Culham Laboratory (1991).

[15] SJ. Pict, E.T. Cheng, and LI. Porter, Fusion Tcchnol. 17 (1990) 636.

S:11.

(16] See for example: -~. Nealey, Nuclear Power Develop*

ment-Pros~*

he Nineties (Battelle Press, Colum-bus, OH, 1

, 1tR4-uclcar Power and Public Opinion (Nuclear Encr ency OECD Report, 1984);

M.E. Bums, (ed.), Low-Level Radioactlvc waste Regula*

tion-Scicnce, Politics and Fear (Lewis, 1988).

(17] J.D. Miller, J. Fusion Energy 7 (1988) 5.

DOCKET NUMBER

L

/2' PETITION RULE PRM ? /--

rt, 1 ~

~

( $'7F"R.3~ T 73 VERMONT LOW-LEVEL RADIOACTIVE WA.!;~,AUTHORITY Vermont Building, Putney Road, P.O. Box 8234, Brattleboro, VT 0530~tY~4 Rosalyn L. Hunneman, Chairman Phillip Paull Jerry W. Kirk September 18, 1992 Secretary of the Commission ATTN: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555 RE: Docket No. PRM-81-2

Dear sir:

'92 S~ l2')2-i:;~ ~

, 1-800-439-8898 Fax: 802-257-7651 The NRC has requested public comment on a petition for rulemaking, submitted by the New England Coalition on Nuclear Pollution, Inc., regarding the waste classification requirements of 10 CFR Part 61. The reasons advanced by the Coalition in support of its petition are based in large part on a study done for the Vermont Low-Level Radioactive Waste Authority by Rogers and Associates Engineering Corporation.

Vermont's low-level waste law (10 V.S.A. 161) requires that the Authority conduct studies to determine the "maximum appropriate separation of long-lived waste" and the "appropriate disposal technology for that waste.

The Authority contracted with Rogers and Associates to perform the studies. As part of that work, it was necessary to develop a definition of "long-lived waste."

The methodology used to define long-lived waste is set forth in a report, "Identification of Waste Streams Containing Significant Levels of Long-Lived Radionuclides",

dated April 1992, prepared by Rogers and Associates for the Authority.

The sole purpose of the report was to determine what waste should be considered "long-lived", so that the mandated studies on separation and disposal technology could be conducted. The "Identification" report was not intended to be used -- nor should it be used -- to assess the performance of any type of disposal facility or site. To draw any conclusions from the report about facility performance, including the ability of a facility to contain long-lived radionuclides, is not valid.

On page 2-4 of the "Identification" report is the statement: "For the purposes of this report, site characteristics are not considered since it is desired that the results be generally applicable throughout Vermont, independent of specific site characteristics." Thus, no site, either real or generic, was assumed.

I '

, 1 1993 Acknowledged by card.............................,...

In Montpelier:

21 East State Street, Suite 101, Montpelier, VT 05602, Tel: 802-229-2241, 1-800-427-9700, Fax: 802-229-1608

Secretary of the Commission September 18, 1992 Page 2 At a public hearing held in Brattleboro, vr, on April 7, 1992, John Greenberg, the author of the Coalition's petition, said the following in reference to the "Identification" report:

They [long-lived waste streams] were also identified on the basis of a hypothetical facility design and on the basis of a hypothetical site, but I believe actually a Vermont Yankee site if I'm not mistaken.

Mr. Greenberg was mistaken. The determination oflong-lived waste streams was not based on any site characteristics, real or hypothetical (except precipitation).

Mr. Greenberg went on to say:

The results of that ["Identification"] study are clearly different from the results of every preceding study, including obviously the studies that went into making up the E.I.S. [for 10 CFR 61].... Well, the difference could be in the facility design, although the facility design used for this study is very similar, in fact, I believe identical, to designs modeled in other studies with different results. In other words, with favorable results in those other cases, unfavorable results in this case. The Yankee site, in our opinion,... is a very poor site. And it might be that by changing sites, by using a better site you'd get better results. That is possible. But I don't think so.

I believe that the petitioner's arguments that relate to work done for the Authority are clearly based on a mistake: Mr. Greenberg erroneously thought that our contractor had used real or assumed site characteristics in its analysis to identify long-lived waste streams. Rogers and Associates did not. For the purpose of the work -- to define long-lived waste -- the Authority found this to be appropriate.

(It obviously would not be appropriate to ignore site and facility characteristics if the purpose of the study were to assess the ability of a site to contain radionuclides.) The difference between the results of the E.I.S. for Part 61 and those of the "Identification" study are in fact attributable to differences in site characteristics: for the "Identification" study, there was no site, not even a "very poor" one.

Very truly yours,

?11.~.~

Christ~ R Halladay Executive Director

U.S. NUCL!:.~;l :':cGvlATORY COMMISSIO~

Di"*: :(i--: ;r * ') ': :**:~~* :CE SECTION L *::*.; * *;..;::~ZCRETAAY

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David W. Hall P.0.Box 235 Bath, Maine 04530 August 16, 1992 DOCKET NUMBER PETITION RULE PAM G.J ;_ 1.

cs, F-Yl 32-7LJJ)

Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C, 20555 Attention: Docketing and Service Branch RE. July 23,1992; 57 FR 32743 Docket No. PRM-61-2

Dear Sirs:

f c, UlD USN C

'92 Affi 20 P 3 :41 vfF ICE Or -ECrlU o KET i G, Sf h vrr:r o

NCli I would like to submit comments on New England Coalition on Nuclear Pollution, Inc. 's petition which requests that the NRC amend its regulations regarding waste classification of low-level radioactive waste to restrict the number and types of waste streams which can be disposed of in near-surface disposal facilities.

(!)

I believe the petitionerJ arguments are valid, however, I would like to approach the subject of radioactive waste classification from a slightly different angle. Currently, as I understand it, all civilian radioactive waste is classified as low-level waste unless it has been specifically classified as high-level waste.

Low-level waste therefore becomes a catch-all which includes some material which is highly radioactive. I suggest that a safer approach would be to define low-level waste as waste which is not highly radioactive, and high level waste be defined as all other civilian radioactive waste. The Federal Government should be responsible for disposing of all high-level radioactive waste.

Currently, some radioactive waste with a short half-life, is stored by the generator until it has gone t~~9ugn ten half-lives. By the same token, I suggest that l~w-level waste with a longer half, life, which will go through ten ~alf-lives within one hundred years, could be stored in an engineered facility which is either owned by a generator, a state, or a compact. Low-level radioactive waste which takes more than one hundred years to go through ten half-lives should be the responsibilli:ty, of ; tihe 1 Federal, Gove~nment.

Sincerely yours,

{fr~~,,(y!at(

David W. Hall SEP 18 1992 ckn owfedged by caftf.** -.. -

S. ~llCU:.t.!l A'EGUtATOAY eot,~MISSIO~

DvCl<ETll'IG ! S1:HVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Postmar~ Oat& - ~

=---..._

I 1_7_/_tr_l.. __

DOCKET NUMBER I ITION RULE.;..;PRU.;;.;;..-==:=~,

(S1 FR 32-7'-/ 3 NUCLEAR REGULATORY COMMISSION 10 CFR PART 61 (Docket No. PRM-61-2]

DOCKETED USNRC

• 92 JUL 30 P 4 :27

[7590-01]

New England Coalition on Nuclear Pollution, Inc.;

Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking:

Notice of receipt.

SUMMARY

The Nuclear Regulatory Commission (NRC) is publishing for public comment a notice of receipt of a petition for rulemaking dated April 25, 1992, which was filed with the Commission by New England Coalition on Nuclear Pollution, Inc.

The petition was docketed by the NRC on May 4, 1992, and has been assigned Docket No. PRM-61-2.

The petitioner requests that the NRC amend its regulations regarding waste classification of low-level radioactive waste to restrict the number and types of waste streams which can be disposed of in near-surface disposal facilities.

The petitioner also requests that the NRC prepare a supplemental Environmental Impact Statement (EIS) to the original EIS prepared for 10 CFR Part 61 (December 27, 1982; 47 FR 57446).

2 Cf )2..1 J C/2-DATES: Submit comments by (60 days after publication in the Federal Register).

Comments received after this date will be considered if it is practical to do so but the Commission is able to assure consideration only for comments received on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

For a copy of the petition, write the Rules and Directives Review Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

The petition and copies of comments received may be inspected and copied for a fee at the NRC Public Document Room, 2120 L Street, NW.

(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Michael T. Lesar, Chief, Rules Review Section, Rules and Directives Review Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone:

301-492-7758 or Toll Free:

800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

The Nuclear Regulatory Commission (NRC) has established specific requirements for licensing the land disposal of radioactive waste in 10 CFR Part 61.

These regulations specify the technical requirements that must be met for the near-surface disposal of waste.

The technical requirements for waste classification are contained in 10 CFR 61.55.

Classification of waste for near-surface disposal is determined by the concentration of long-lived radionuclides whose potential hazard will continue long after precautions such as institutional controls, improved waste form, and deeper disposal are no longer effective and the concentration of short-lived radionuclides for which these precautions are effective.

The three major classifications of waste for near-surface disposal are described as follows:

(1) Class A waste is waste that is usually segregated from other waste classes at the disposal site.

The physical form and characteristics of Class A waste must meet the minimum requirements set forth in§ 61.56(a).

If Class A waste also meets the stability requirements set forth in§ 61.56(b), it is not necessary to segregate the waste for disposal.

(2)

Class B waste is waste that must meet more rigorous requirements on waste form to ensure stability after disposal.

The physical form and characteristics of Class B waste must meet both the minimum and stability requirements set forth in

§ 61.56.

(3) Class C waste is waste that not only must meet more rigorous requirements on waste form to ensure stability but also requires additional measures at the disposal facility to protect against inadvertent intrusion.

The physical form and characteristics of Class C waste must meet both the minimum and stability requirement set forth in§ 61.56.

Petitioner The New England Coalition on Nuclear Pollution, Inc., is a non-profit, tax-exempt organization which was incorporated in April 1971.

The organization is based in Brattleboro, Vermont, and has members throughout the country.

The Coalition has members in the following states hosting, or considering hosting, a low-level radioactive waste disposal facility:

California, Connecticut, Illinois, Massachusetts, Maine, North Carolina, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Carolina, Texas, and Vermont.

Reasons for the Petition The petitioner believes that the waste classified for near-surface disposal, which the petitioner terms "low-level" waste, comprises both long-lived and short-lived material.

The petitioner believes that this combination of material would make facility engineering extremely difficult, if not impossible.

The petitioner stated that recent studies by Rogers & Associates for the Vermont Low-Level Radioactive Waste Authority have shown that, in the state of Vermont, 6 already-separate waste streams account for more than 99% of all of the long-lived activity in the "low-level" waste stream, but only about 12% of the total waste volume.

The petitioner believes that these studies also showed that, under modeling scenarios different from those used by NRC, these waste streams would cause an earth mounded concrete vault facility to fail.

The petitioner believes that the results would not be any different for any near-surface facility design.

The studies also showed that of the 6 waste streams, 3 are Class A, 2 Class B, and only 1 Class c.

The petitioner believes that the problematic waste streams do not directly correspond to the current NRC waste classification system, though most of the activity is found in the Class C waste stream.

The petitioner believes that siting these long-lived materials in near-surface facilities, such as those planned in most areas of the country, is unwise.

The Petition The petitioner requests that the NRC revise its regulations concerning the classification of waste for near-surface disposal to restrict the number and type of waste streams which may be disposed of in near-surface disposal facilities.

The petitioner believes the requested changes are necessary because of significant new information concerning inadvertent intrusion into low-level radioactive disposal facilities that was not available at the time the original environmental impact statement for 10 CFR Part 61 was developed.

The petitioner also believes that the NRC must develop a supplemental environmental impact statement (EIS} concerning the land disposal of radioactive waste because, according to the petitioner, the premises leading to the conclusions reached in the original EIS have substantively changed.

The petitioner is basing this petition on what the petitioner believes are three critical changes in the reasoning which resulted in the current regulations.

1.

The original EIS was based on a 500 mrem/year dose to "inadvertent intruders," derived from the then current guidance from ICRP, NCRP, EPA and NRC.

The petitioner cites present guidance that would limit the dose to inadvertent intruders to a level of 100 mrem (See§ 20.1301, 56 FR 23375; May 21, 1991),

rather than 500 mrem per year.

The waste classification system NRC adopted was dependent on the level of intruder doses allowed at that time.

The EIS analysis showed that setting the dose limits lower than 500 mrem would result in about 10% of the waste stream being declared unacceptable for disposal in the base case shallow-land burial facility.

Therefore, the petitioner believes it is clear that lowering the dose limit would impact the final waste classification analysis.

2.

The petitioner states that the NRC considered three intrusion events based on evaluation of the broad range of events possible, those considered by other investigators, and the likelihood of occurrence.

According to the petitioner, the final EIS notes that NRC did not directly consider the probability of various intrusion events occurring except to the extent of considering reasonable, probable productive uses for which the land could be used.

The petitioner believes that this was a matter of regulatory discretion rather than of scientific data.

The original analysis was also based on the assumption that all intrusion would be inadvertent.

However, the petitioner believes that this assumption is not valid because, according to the petitioner, there are many credible scenarios that would involve deliberate intrusion.

The petitioner states that recent studies in Vermont show that, when intrusion is deliberate, the ability of near-surface facilities to contain all of the currently classified low-level radioactive waste stream is questioned.

The petitioner requests that the NRC reconsider its decisions concerning possible intrusion scenarios.

3.

The petitioner believes that the cost differential between the shallow-land burial facility and the geologic facilities needed to dispose of waste unacceptable for near-surface disposal was exaggerated and should be revised.

At the time of the original EIS, it was assumed that low-level radioactive waste would be disposed of in shallow-land burial facilities on an "eastern humid site," based on the "shallow-land burial" disposal design.

Shallow-land burial was assumed to be substantially cheaper than alternative facility designs, and cost considerations were a factor in determining which wastes should be disposed of at facilities licensed under 10 CFR Part

61.

However, according to the petitioner, none of the states or compacts east of the Mississippi is contemplating use of the shallow-land burial design.

All of these states and compacts intend to use some form of facility engineering that would increase the cost of low-level waste disposal.

The petitioner believes that the supplement to the EIS would result in a small component of the waste currently considered acceptable for near-surface disposal being declared unacceptable.

By removing additional waste streams than those originally eliminated by NRC, the petitioner believes that two major difficulties can be addressed without benefit of substantial but baseless speculation.

Potential intruder doses could be held well within regulatory limits, while mistakes in scenario prognostication would not result in harm to intruders or to the public.

The petitioner believes that the reclassification of the waste by NRC would enable the NRC to specify the materials that are truly "low-level," and ensure that safety enhancements are required for that small portion of the "low-level" waste stream that cannot safely be disposed in near-surface facilities.

Dated at Rockville, Maryland, this 1992.

or the cle~ulatory Commission.

hilk,

\

of the Commission.

. /

New England Coalir#LF'>,,,.,. g'f{ei: ucl Box 545, Brattleboro, Vermont 02MAY O 4 1292 To whom it may concem:

DOCKETING&

SERVICE BRANCH SECY-NRC

'c'l I

~

DOCKET NUMBER PETITION RULE PRU ~ (.;:2 Pollution, Inc.

Phone (802) 257-0336 April 25, 1992 Encloeed please find the New England Coalition's petition to the Nuclear Re1ulatory ColllllllHlon for a rulemaklng to modlty the 10 CFR 61.66 waste clas-1incatlon rules for so-called "low-level" waste.

We hope that you will consider writing favorable c011U11enta on thl petition, since we believe it could have m-ior lml)act on the low-level radioactive waste altlng process Jn this country.

Por several :rears, the CoalltJon has been Arguing that the term "Jow-level" waste comprises both long-Uved and short-llved material. and that this conglomeration of mismatched materials would make facUtty englneerlng extreme-ly dlfflcult, if not impossible.

Recent studies by Rogers &. Aasoclates tor the Vermont Low-Level Radioactive Waste Authority have shown that. ln Vermont at leut, 6 already-separate waste streams account for more than 99~ of au of the long-Uved activity in the "low-level" waste stream. but only about l 2" of the total volume. The studies also bowed that. under modeling scenarios dif-ferent from thoee used by NRC, these waste streams would cause an earth mounded concrete vault facUlty to fall. There ts no reason to believe that the reaulta would be any different tor ~~ near-surface faculty design.

Finally, the atudlea also showed that of the 6 wute streams. 3 are Class A, 2 Class B.

and only 1 Claes C.

Clearly. the problematic waste streams do not directly COl'l'NPoDd to the clll'l'ent NRC wute clualflcatlon system. though most of the actlvlt)r l1 found In the 1 Claa C waste atreUl. In our view. this study strong-ly suaeeta that altlng these )ong-llved materials ln near-surface facUltles, auch u those planned in moat areu of the country, ls exceedingly unwise.

By reclusttylng the nation's wute, NRC could enable siting ot those aaterlal1 which are truly "low-level," whlle at the same time requiring safety enhaneements for that small portion of the *1ow-level" waste stream which cannot aafely be dlapoaed in near-surface facilities.

We offer no solution at present for these long-lived streams.

Perhaps deep geological storage ts appTO-prlate; perhaps there la no solution on the horizon. Further Investigation is needed to find an answer.

in the meantime, this petition represents everyone's best 01>portunity to revi1lt these key queetlona now that many eyes are focused on them.

We hope you wlll read lt carefully. and once lt reaches the Federal Reapster, that you will provide NRO with colDlllenta supporting it. Thls Js a major. and perhapa the lut, legal opportunity to effect maJor change in the low-level radioactive waste 1ltlng proceaa natlonwlde whlle enhancing the nation's safety.

lf you have question* or comment* about any of these iHuee, please feel fNte to write or call me at home:

John Greenberg; RD #4, Box 446; Brattleboro, VT 06301 802-464-2260 or 802-464-0917 10AM to 10PM Eastern time If Jou do prepare comments, we would appreciate receiving a copy.

or your support.

E d u c a t i 11 g t h c P u b I i c i n C I e a n A I t e r n a t i,. e to uc l ea r P owe r

, 1 r.,4;.:snr..

~cr,cn

New England Coalition on Nuclear Pollution, Inc.

Box 545, Brattleboro, Vermont 05302 Phone (802) 257-0336 Pun~t to 1 O CPR 2.802. TIM New England Coalition on Nuclear Pollution hereby petitions the Nuclear Regulatory Commlaslon to revise lta rule -- 10 CFR 61.66 -- on cluslflcation of low-level radioactive waste, to restrict the number and types of waste streams which can be disposed of ln near-surface cllapoaal facilities.

Our petition Is based on signltlcant new lnfonnation, con-cemlng intrusion lnto low-level radioactive waste disposal tacllltlea. Since this lnfonaatlon was unavailable at the time the original environmental llllpact statement (hereafter "EIS") on 10 CPR 81 was prepared, a supplemental EIS wlll be required.

We believe lt essential that the Commission act on this petition before Jlcen*lnc any new low-level radioactive waste disposal facillties under Part 61.

The New England Coalition on Nuclear Pollution wu incorporated in April, 1971 u a non-profit, tu-exempt organization. The organization la bued ln Br,attleboro, Vermont, and has members th.rougho::t the couuti')I'.

iii parUcuiar, the Coalltlon baa members ln the following states hosting, or considering host-ing, a low-level radioactive waste disposal faclllty: CA, CT, IL, IIA, ME. NC. NE.

NH, NJ, NY, OH, PA, SC, TX, and VT.

our petition la based on three critical changes ln the reuonlng which led to the present rule. First. the original EIS analysis was baaed on a 600 Jllrelll/year dose to *tnadvertent lntruden." itself derived from then current guidance from JCRP, NCRP, l!:PA and NRC. Preaent guidance would limit the dose to intruders to a level of 1 oo. rather than 600 mre111., per year. The waste clualficatlon system NRC adopted wu dependent on* the level of intruder doses aJlowed.

A second change affects the coat basis uaed to compare coats of different means of disposing of wute. At the ttine. of the orlg.lnai EIS, lt was assumed aa a base cue that low-level radioactive wute would be disposed of In shal-low-land burial tacllltles on. an' *eutem hulllid site." Shallow-land burial was assumed to be substantially cheaper than altematlve faculty designs. and cost conalderatlona were a factor ln determining which wastes should be disposed or ln tacllltles licensed under Part 61. In fact, we now know that there wlll be no eutem shallow-land burial facUltlea.

Third, the original analysis wu baaed on the assumption that all lntru-

.:lon would be ln&dvortent. Recent stud!es !n Vermont show that. when thi11 uawnptlon la no longer utilized, the ablllty of *near-surface facllltlea to con-tain all of the currently claaslfied low-level radioactive wute stream la called into question. New Intrusion scenarios should be analyzed, since the EIS'a choice of Jut three scenarloa cannot withstand careful scrutiny.

In sum, the original rulemaktng la based on three key points. two or which are now known to be talae, and one of which la certainly questionable.

The Colllllllaaion can no longer rely on the conclusions derived from these incor-rect lnputa. The New England Coalition on Nuclear Pollution therefore requesta that the Commission reopen this part of 1 o CFR 61 to a new rulemaklng and supplemental EIS process.

We begin wlth a legal analyala of why the Commlaalon la required to undertake this rulemaking, and then proceed wlth detalled analysis of each step 1

Educating the Publi c in Clean Alternatives to Nuclear Power

of our-.. reuontn1.eoncemlng the points Just raised.

~EPA R~ulres Federal Agencies to Use "All Practicable M~*~~" to Protect the Rlg_bt to ~ HeM~~ t:~y_!rorµl'.l_e~!

Under the National Environmental Polley Act ("NEPA"). "The Con1reas recognizes that each person should enjoy a healthful environment..*. "

There-fore, "lt la the contlnulg r~Jl*lblllg of the Federal Goverrunent to use au practicable means... to the end that the Nation may... assure for a.11 Ameri-cans sate. healthful. produetlve. and esthetlcaUy and culturally pleasing sur-roundings...* "2 Aa the underlined language lndlcatea. the Collll'ft1aslon's responalblllty does not end wlth the original promulgation of a rule. NEPA refers to a "continuing" reaponalblllty. and the leglalatlve history aakea lt clear that this refers both to an agency's existing p:-ogrsms and its "ongoing activities. 118 Clearly, regulation and UcenslT of low-level radioactive wute facUitles la an ongoing activity In thla sense.

For this reason. NEPA "obligates the agencies continually to review and reappraise existing policies and procedures.

not only in the light of the developing law. but also in llght ot the developing agency awareness of environmental factors u laauea arise.... *6 In the present Instance. the Commission's *developing awareness" of radiation protection reaulted In ma,lor revision* to Part 20. which have a direct, bat hitherto unnoted. bearing on 10 CFR 61.66. Indeed. there can be no ques-tion that the revision of Part 20 constitutes "algnltlcant new clrcumstancea or lnforaavon relevant to environmental concerns and bearing on the proposed action.*

Slmllarly. the fact that shallow-land burlaJ methods will not be utl-Uzed eaat of the llissisalppl Is a significant new circumstance bearlng on the

1. Public Law 91-190, Section 1 0 1 (c).

2. Same, Section 102(b)(2), emphasis added.

3. S. Rep. No. 296, 91st Cong., 1at Seaa. 21 (1969) as quoted in Jones '11. l,.ynn. 477 F.2d 885 (1973), 889.

4. In People*jnst Nuclear Ene,wv. U.S. NRC, 678 F.2d 222 (1982)(reveraed on other grow,da) 231, the U.S. Court of Appeals for the D.C. Circuit held that *the Commiaaion'* statuto-ry reaponsiblklea cwer licensed nuclear facilities creates a continuklg obligation to comply with NEPA.* TheOCCourtreferred back to Joneav. Lynnf477 F.2d 886 (1973) 890. where the cowt was *reluctant not to find a continuing major federal involvement eo long as It was estab-lished that (the federal goyernlWlt aoencYJ retained any aigntficant discretionary powers as might permit it to effect an alteration *** to enhance *** the *** environment."

6. Sierra Clubv. Froehlke 369 F. Supp. 1289 (1973) 1339. See atao Warm Sp~ga D!lm !n!I Fore~~ !3ribbl! 621 F.2d 1017 {1980) 1023.

6. 40 CFR 1602.9{cK 1 )(ii).

2

Part 11.. wute clasalflcatlon system.

There can be no question that these two pieces of lnfonnatlon are "new*

and "slgnlficant" wlthln the legal confines of these terms. This information is new becau¥e It was "not available or considered when the original EIS was prepared.*

It is algnltJcant because lt "alters the 'environmental status quo,"'

because lt *causes a 'al&nlficant degradation of some human envlronmentaJ factor.1118 and because lt presents "a seriously different picture of the environ-mental impact of the propc,aed project train. what wu previoualy envisioned. *9 Given these alcnficant. new pieces of lntonnation. the Councli on Envi-ronentaJ Quality NEPA regulatlona reg_ulre NRC to *prygare supplements to either draft or flnaJ environmental 1jnpact statements."

This re,tulatlon la

• entitled to substantial deference:111 indeed. not to put too tine a point on it.

lt la 11blndlng. *12 The New Eng.land Coalition ts confident that. after preparing the required supplemental EIS. the CommlHlon will find that "a portion of the orlitnal purpose of the project. or its reasonably logical subcomponent, may be accom-pUshecl by other means." apecltlcally by reclassltytng low-level radioactive waste. so that *a significant portion ot the envlronme~tal harm attendant to the project u originally conceived may be alleviated." 3 NRC has promulgated tour perfonnance objectives for low-level radioactive waste disposal facilities In 10 CFR 61.41-44.

In the cases of sections 41. 43 and 44, compliance with the performance objectives must be demonstrated

7. Chwchweff v. Robertson 748 F. Supp, 768 (D. Idaho 1990) 779.

8. Sabtne River Authority v. U.S. Dept. of Interior 745 F. Supp. 388 (E.0. Tex. 1990) 393. citing Sierra CJub v. HU~!tll 636 F.2d 1095 (1981) 1099 and State of~~! L~ 768 F.2d at 1086 reapectively.

9. Sierra ~v. Marsh 744 F.Supp. 352 (0.Me 1989) 367.

10. 40 CFA 1502.9(c)( 1 ). The NRC ha

'milar regulations at 1 0 CFR 51.92(a) which, in our view, also apptvto this caae. In the case of theae latter rules, however. a aecondarv issue *~

raiaed ** to when and whether *the proposed action haa.*. been taken." To avoid the iaaue. we cited the CEQ regulationa. which contain no auch modifiers.

In the Instant case, of course, a rute has already been promulgated, Nevertheless. we would argue that, aince the actual licenaing of waste facititiea ha& not yet taken pf ace. §5 1. 9 2(a) would still apply. Since, however. the CEQ'a regulations are clear and binding. there aeems little merit in belaboring the Point.

11. Marahv. ~

Nat. Reaowcea Cow,cil -490 US 360 (1989) 372.

12. Fritiobon v. Alexander 772 F.2d 1225 ( 1986) 1237.

13. Sierra~~ Froe~e 359 F. Supp. 1289 (1973) 1344.

3

through Ucenaee modeltng, as described in NUREG-1199: Standard Format and Content of ~ Li~enae ~_ppltcat!9.I.!. fgr ~ M>~=~ev~~ R~~j~ac;t1~-i Wa_s_t*~ D1sp9~a)

Facllit~. f4 In each of the cases noted, the applicant must demonstrate. through data, discussion, modellng. and analyses that the performance objectives wUl be achieved.

For example, to demonstrate compllance with the 26 mllllrem release llmlt In 861.41. for example. the llcensee must use extensive modeling to demonstrate that releases will be below 26 mHUrems into the indefinite future.

But when it comes to showing that intruders have been protected, the licensee does not actually attempt to show that the 600 mHUrem (or any) dose standard has been met.

Instead, the licensee must demonstrate only that NRC's regulatory guidance concerning waste aegregatlon and depth of disposal have been followed. Accordingly. NRC limits itself to ensuring "the proper se~egation of wastes so that wutes designated as Class C will be disposed of with accept-able intruder barriers* and that "there ls reasonable assurance that an inad-vertent intruder wlll bo p ote t d by providing s ufficient depth of burial of waatea or an engineered Intruder barrier..*. "10 It ls then usuined, on the basis of the EIS modeling, that if the guidance has been followed, an intruder wUl receive a dose below 600 mUlirems.

This inference le built lnto Part 61 itself and the concomitant regulatory publica-tlone. In other words. compltance with the intruder protection performance objective ls demonstrated ded11ctlvely. It ls based on the reasoning that if waste 1* segregated ln accordance with section 66, and disposed of in accord-ance wtth section 62, then, slnce these were derived by a logical process de-scribed ln the EJS, the intruder will be protected.

The l'ln~l Envlro11mental !tftpact ~~ate_~ent (hereafter "FEIS" ).16 makes thta reuonlng explicit: "... there la no practical way in which a llcensee could monitor and aaure compUance with an actual exposure limit and there ls no way to absolutely predict the type of intrusion event which might occur, when it might occur, and how many people mlght be involved." 17 Therefore. "Since it ls not poaelble to control today what may happen several hundred years in the future. NRC ls control Ung the concentration of waste disposed of today, such that lf someone should contact It through reaRonable uses to which the site A

could be put in the future, the individuals involved would not r c v a high W

14. See aectiona 6. 1, 6.3 and 7 respectively.

16. Stai'.14(1!~ fl~ P.!@O,or!~ Ae,vieyt of~ ~~e~ Appffcati9n for a Low-Level Aadioac'1ve Waste Plapo-.t Faciljy(NUREG-1200), p. 6.2-1. Accordingly, NUREG-11 99'a QUtdance on format and content of the licenH appffcation ia also geared towards demonstrating that these two reautta have been achieved.

16. Final Environmental ~ct Statement on 1 O CFR Part 61. *~ensing Requirements for Land Q!!po~ of Radioactive Waate

• November, 1982, NUREG-0946.

17. f.!:~. Vol. 2, B-41. Indeed, for just this reason, the §61.42 performance objective chanqed from tta draft form *o.aign operation and closure... must not result in conditions where anv indi-viduat inadvertently intruding *** could receive a doae to the whole body in excess of 600 millirem per year-to its present ve~ion without any stated dose limit. See aJso fEIS, Vol. 2, B-42.

4

exposure." 18 At the same time, lt la clear that "consideration of 1>otentlal hazard to an inadvertent intruder due to direct contact with the disposed waste* was one of two "fundamental mechanisms to classify wastes for long-term hazard." 19 But the premises leading to the ElS's conclusions about controlling waste concentra-tions have substantively changed. Therefore. the conclusions must be re-examined in the light of the new evidence and premises.

The intruder protection performance objective was codified only after "lengthy" analysis in the EIS. which also notes that "The preferred dose limita-tion criteria objective selected by NRC ls slmllar to the maximum permissible levels of radiation in unrestricted areas as set out in lo CFR Part 20. 1120 In Chapter 4. the DEIS notes that this 600 mUUrem &tandard a o accords with "current recommendations" of ICRP, NCRP and PRC aa well,21 and that this 500 IIU'em/year dose *would therefore appear to be acceptable for protection of an Inadvertent intruder. n2z-- ----

NRC's comment analysts in the F:t!~ confirms that this was the agency's reasoning:

NRC's selection of the 600 mrem llmit was based on (1) publlc opinion gained through the 4 regional workshops held on the preliminary draft of Part 61: (2) its accept-ance ~ matlo~a.J ~!l-~ ln_!;!!rnat19n&t *~anda1~s organiza-tiQD~ l~ 1~_,RP) ~ ~ ~cce_p!_~J_~ ~XR.QS!l_l'_~ limit for members of the public: and (3) the results of analyses presented--in-C:hapter-4 of the draft EIS. 23 01 course, all of this took place In 1981-1982.

Since then, however, the guidance of the cited groups has chanJ1;ed.

NCRP Report #91, Issued in June, 1987 and ICRP In March, 1985 changed their 500

18. FEI~. Vol. 2, p. B-40.

19. Draft Environmental ~mP-'J!! ~tatem~! ~

~ Q Cf:B ~-art. 61 ~1,._iQ~sirlg Requir:_ements for Land

~aalofRadtoact~W~11~

.. / September. 1981, NUREG-0782 (hereafter "DEts*), Vol. I. p.

41.

20. OE;_I~, Vol. I, p. 29.

21. See DEIS, Vol. 2, pages 4-64 through 4-66.

22. DB~. Vot 2, p. 4-66, emphaala added.

23. FEtS, Vol. 2, page B-41, response to tssue C-4, emphaats added.

5

mllllrem limit to 100 mlltlrem. 24 So too. the NRC has changed its own reRuia-tlons ln Part 20 from 600 mllllrem (10 CFR 20.106 in the old regulations) to 100 mllllrem 00 CFR 20.1801 1n th! new rule). explicitly citing "the clarifications by the ICRP (See Section II.A)" 6 While the new regulations continue to allow a 600 milllrem exposure under certain conditions. 1t ls quite clear that these conditions are not perti-nent to disposal of low-level radioactive waste.

The 600 mllUrem exception ls to be applied "primarily to temporary situations" and "to alleviate the immedi-ate need to redesign or reshield existing facilities that were designed to meet the former 0.6 rem llmit." Since no low-level radioactive waste disposal facili-ty has been licensed under Part 61, however, this clearly ls not a pertinent cue. Jnatead, operator* of low-level radioactive waste disposal facilities will tall under the categorical ftsandate:

"For deslgn of new lnstaUations, the 0.1 rem llmlt should be used."

Purthermore, lt ls clear from the statements of pul'l)ose and scope ln Part 20 that the new 100 mUUrem limit ls intended to apply to low-level radioactive waste disposal:

120.1002 Scope. The regulations ln this part apply to persona licensed by the Commission to receive, poseeaa.

use. transfer or dlspJ)Se of byproduct. source or special nuclear material or to operate a production or utillza-tlon facUlty under parts Sf through 36, 39. 40,60, 61.

70 or 72 ot this chapter. 2 There can therefore be no question that the basis for the 600 mllllrem limit tor protection of inadvertent intruders has evaporated, and that more recent technical guidance clearly indicates that the proper figure should now be 100 mllllrem.

The analysla ln the orlginaJ EIS shows that this change ln acceptable doae levels results in significant impact. The EIS examined three lternatlve cases as to dose to an inadvertent intruder: 26 mrem, 600 mrem, and 6 rem.28 A

Specifically. the analysts showed that rajs ng the dose from 600 mrem to 6 rem

24. See Section ti of the NRC'e comments on promutgation of 1 O CFA Part 20. Federal Register.

May 21, 1991, pp. 23361-23363.

26. Federal ~~ter, May 21, 1991, p. 2337 4.

26. AH quotes are from~alR~gi*t~. May 21, 1991, p. 23375.

27. Emphaaia added. The statement of purpose ia equatty clear: *120. 1001 (b) Hts the purpoae of the regutatJona ln thla part to oontroa the naoeipt, poeaeHion, use transfer. and dioposal of licenaed material by any licensee in auch a manner that the total dose to an individual **. does not exceed the atandarda for protection against radlation prescribed In the regulations In this part.*

(emphasis added)

28. See DEIS, Vot. 2, 4-65.

6

would Involve "approximately the same costs and lmpac s aB the 600 mrem/year altemative.*29 Lowering the dose, however. had quite different results:

A dose rate llmlt in the range of 26 mrem/year was Judged to result in considerably more costs. more change ln existing practices, and greater reduction ln disposal efficiency than the other two alternatives. 3o Indeed. the EIS analysis found that. it the 26 mrem limit were used in one of tbe cases examined, "nearly 100.000 m3 of waste would be classlfled u not acceptable. "31 This ls equal to approximately one-tenth ot the total expected volume of the faclllty modeled as the EIS'a base case. 32 However. lt also round that "use of the 26 mrem llmltatlon criteria results In reduced potential exposures at 100 years (by a factor of 10 tor most cases)... *33 Presumably. similar (though perhaps leBB dramatic) results would follow it the new l 00 mrelll/year Part 20 were app I d in accordance wlth current regulations and guidance from NCRP and ICRP.

During the same period that the dose limits have changed. the cost comparisons used In formulating the EIS have also p~ven exaggerated. The EIS ls based on a site "in a humid eastern environment." 4 but it ls also based on the "shallow land burial* dlapoaal dealgn.36 None of the states or compacts east of the MlHIBBlppl ls conteaplating use of such a design. however.

Indeed.

all of these states and compacts intend to use some fonn ot fa~lllty engineering which would increase the cost of the "base" faclllty.36 Costa of the base case were compared to costs of disposal in a mined

29. PEI~, Vol. 1, p. 29.

30. Same.

31. DEIS, Vol. 2, 4-63.

32. See DEi~, Vol. I, p. 14.

33. Same.

34. DE!.S, Vol. 1, p. 14.

36. Same, p. 16.

36. See *status of Statea in Providing Disposal of Low-Level Radioactive Waete - - October 11, 1991,

• dated January 24. 1992. The map on page 9 shows that &hallow land burial is banned in most eaatem states. In addition, page 94 indicate& that New Hampshire law bans this method.

Also, though aHowed In the state's siting law, the directors of the Connecticut Hazardous Waste Management Semce voted on March 23, 1989 to eliminate *earthen trenches. commonty known aa shallow land burial, from further consideration as a potential LLRW c:hposal technotOQV for Connecticut.* (Connecticut Hazardous Waste Management Semce -- *Low-Level Radioactive Waste Disposal Facility Site Selection Plan'", dated November, 1990, p.61. This leaves only 0C, PA and RI, none of which has any plans to develop a facttitv.

7

cavity or ln DOE 11 hlgh-)evel waste repository.

The difference in cost between these dispc,aal options and the base case was then used as the tirat stated reason for Ndectlng a lower intruder dose limit ln the original EIS: such a decision would impc,se "considerably more costs.*

However, wlth the costs of the bue case held artificially low by the choice of a technology which -- It ls now known -- wlll not be utlllzed, the extra cost needs to be re-evaluated.

It may be true that mined cavity disposal ls more expensive than the designs being contemplated for near-1urtace facility. but it.ls clear that the difference ls less great than would be the case If the near-surface facility Involved only shallow land burial technology. Moreover, a Canadian study suggests that the coat difference may be far lesa substantial than previously underatood in any case."3,-

ln sum. those aspecta of the EIS pertaining to Intruder protection must be re-exunlned ln Ught oi* the :tact th*t the basic premises have changed.

The 600 lllllllrem/year doee lhnit, once considered acceptable by NRC and other national and lntematlonal bodie, has been lowered to 100 mllllrem/year.

The EIS analysis showed that setting the doe llmits lower than 600 millirem would result ln about 10~ of the wute stream being \eclared unacceptable for dispos-al In the base cue shallow land burial facility. 8 ao it ls clear that lowering the dose llmit would impact the final waste claselficatlon analysis. Finally.

knowlnc that every eutem tate or compact intends to use technology more expensive than shallow land bUJ'lal means that the coat comparisons in the original EIS were arttflclally exaggerated, thus exaggerating the additional coat of different disposal for the portion of the waste stream found unsuitable for disposal in the bue case facility.

In abort. since some of the basic fact.a and premises have changed, the EIS should be re-opened to acco1DJDodate them.

The changes Just discussed have occWTed since the NRC undertook the entire EIS procese back ln 1981-1982. They clearly require NRC to re-examine Its conclusions in the Ught of the new Information presented 1n its own docu-ments.

At the same time, however. we urge the Commission t o take advantage of

37. See Conceptual Design ~~of~ Low-Level ~adio--~ rv~ Wast~ Disp_os111 M~!l.!l_gen,ent f:.~i~::

~. Janu.y 1985, prepared by Senes Consultants Limited with Golder Associates and Chem-NuclNr Systema, Inc. for Atomic Energy of Cenada Limited, pp. S-1 to S-3, eapecialty: *rhe cost analyses for the Bue en. waste scenarios suggest that the final dlapoaat coat is retattvety independent of the actuaJ diapoaal concept Mlected; the ant coata for intermediate depth geolog-ical dlspoaal were estimated to be only 2()qb greater than for shaflow land burial.* (S-3)

38. It la probablv not cok,cidental that a recent atudy undertaken for Vermont'* Low-Level Radioactive Wast* Authority found that approximately 12% of Vermont'* waste stream. con~isting of reactor components and ion-exchange resins. might be ooaccei,table for disposal in a near-awface tacUity. SH R.O. Baird, G.B. MerreH. & M.A. Lehto, Identification of Waste Strearna Containing SiQntficant Levels of Long-Lived Radionuclide&, Rogers and Associates Engineering CorJ)oretion, April, 1992, RAE-9120/1-1 (hereafter *tdentificatton*).

8

this opportunity to reconsider lts declslons concerning possible lntrualon scena-rios.

While the EIS claims to have reasonable basts for its selection of intruder scenutoa. there la reason to doubt the validity of those clahaa.

In the FEJS. NRC la explicit about the basis tor its intruder rules: "For purpoaea of analysla, NRC considered 3 intrusion events. These were selected based on evaluation of the broad range of events possible. those considered by other lnvestlgators. and the llkellhood of occunence. *39 However, the FEIS also notes that NRC "did not directly consider the probability of varlous -int ru-slon events occurring except to the extent of considering reasonable. probable productive use to which the land could be put. "40 Thia presumably means that the "likelihood of occurrence" Juat noted was not accurately quantified, but rather detennlned by some more casual means.

Indeed. NRC lays no claim to any sclenttnc basis for lta decision about which scenarloe to adopt. Instead, thla Judgment was clearly a matter of regulatory discretion rather than of scientific data.

In addition. the FEJS expllcitly recognizes that "NRC could have used much more conservative events and auumptiona regarding t he types of individ-uals involved and time spent at home. Given the unlikely nature of the as-sumed event, and the conservative nature of many as1umptlons in the analysis.

NRC did not make such aaaumptlon*

NRC has generally tried to consider a more realletlc set or IJkely lndlvldual actions rather than a less realistic worst-case approach.* 1 The EIS never states how lt reached the conclusion that inadvertent intrusion after, say. 600, 1.000 or 10,000 years ls "unlikely.*

Judgments about what ls "credible" or "reallstlc" rely heavily on postu-late about human behavior three hundred, five hundred, and even thousands of years from now.

The dlaclpllnes directly relevant to these speculations are far-from-mature sclentlflc dlsclpllnea - - cultural anthropology, sociology, cul-tural history, and related aoclal sciences. Moreover, there is no evidence that the NRC consulted anyone wlth expertise or even rudimentary knowledge of any of these fields In preparing lta EIS.

Properly usesaing credible scenarios ls hardly a simple exercise. It ls dlttlcult enough to project human behavior over a period of months or years.

Just uk any economist.

But predlctlona over centuries involve major exercises of hlatorical-aoclologlcal imagination.

Even well-informed experts would be llkely to err over these tlme periods.

Even a brief consideration ot aoae of the key elements or the "low-level" wute question in an hlatorlcal perspective should suffice t o underscore the point. Four hundred years ago, there were few or no farms in the United

39. FEIS, Vol. 2, 8 - 41 to 42.

40. Same.

41. FEIS. Vol. 2, p. A-44.

9

States. 42 There were very few or no drinking wells ln the country. 43 The apane Indian population were mlgranta, who spoke different languagea from oura, lived

• radically different llte1tyle, and knew absolutely nothing of West-ern aclence, It.a findings or its methods. Their notions of *probable productive uses to which the land could be put* would clearly be different from ours.

Stainl~aa steel did not exlt.

One hundred years ago, most Americana were directly attached to the land. 44 Today. fewer than 3" of our 92Elety are farmers; ln 1930. over 26" of the American populace llved on fanns. 4 Again, the idea of *probable productive usu to which the land could be put* hu clearly changed In the intervening time. StalnleH steel had still not been invented (1916), and lta importance was clearly not recognized. The atom had not been aerlously investigated by acten-tlata since the time of Democritus.

Today, stainless stsel ls one of our s c e.y's most important resources.

Drinking water ln many states comes largely from wells, at present drawing water from the top four hundred feet or so of the earth's surface.

But modem farm methods may well be unsustainable. Fann land la being developed, probably never to reappear. There are smaller and smaller quantl-tiea of pure drinking water. The planet** PoPUlatlon ls skyrocketing.

AU thla wu noted ln comments on the original !:IS:

Present trends ln population growth, soil erosion. and

-42. One of the three "credible" scenarios ia the *adjacent farmer* scenario. in which the path-way to man la a drinking well.

43. Another acenario declared "credible" depends on contaminated drinking weHs.

44. That la, qutte unlike the adjacent farmer dncribed In the NRC Hterature. Indeed. thts was pointed out in comments received prior to promulgation of the rule:

The intruder ia aasumed to be an lndtvklual who lives In a house on the waste burial site and consumes food grown ln a rden on the site. The intruder is uaumed to work at a reoular job during the day m1d spend only about half his time at home. This seen rio does not consider a more plauaibkt family-intruder, In which th followma factors would alter the risk anatyals: ( 1 ) aome members of the famity may not work or may work In the home. thus apendtng much more time at the site; (2) aome famlty membera may be children or preg-nant women, who are more aenaitive to radiation. This anatyale ia inadequate for present-day aociety; its applicability to the future ia even more uncertafn. (FEIS, Vol. 2, p. A-43)

Not only la this analyala not accurate today, but the away-to-work model is not historically accwate either. In fact, this model wn a product of the industrial revolution, and is in the proc-eu of being dlaplaced to a greater and greater extent by today's technolooical revolution.

46. Statlsticaj Abstract of~ Untt~ States: 1981, Table t 1169.

10

water reaourcea lndtcate that ln the future land and water wlll be extremely precious commodities. There la already a water shortage in many parta or the country.

As the population increaaea and more and more farmland la lost to erosion and urban growth. arable land wUl be in short supply. It may be that the "Intruder scenarios" proposed in the DEIS will not be inadvertent. as ls now uswnecl; the need for land and food may be so severe that the use of waste burial alt** for agriculture aay be pel'llllttecl.

Thla le especially likely since the site characterlatlca (topography, aoll permeabUlty. meteoroJo-CJ') moat favorable for waste dlapos~8are also the best for farming or reaidentlal purposes.*

Our culture appean to be ln a state of constant, radical change.

All of theae factors and many othera sugpn that contemporary Ufeetylea wlll not last, and that tomorrow's lifestyles and values are "likely" to be quite different from our own.

Aa should be obvious, what seemed *credible" 300 years ago or even 100

vean aao la a vel')' far stretch from what appean "credible" today, and almllar-ly. what HftUI credible today will be a far atretc:h from what our descendants wlll find credible.

We witneaa dail)' an:v nwnber of phenomena which our prede-ceeaora unlvereally dlamlaeed u "unrealistic" or *1ncred1ble:" apace shots, tele-phone comaunlcatlona. personal coaputere. not to 111entlon the fact that our hyper-abundance of food l* grown by leas than s-.. of the population. etc.

Clearly. acenarlo credlblllty la not eully utabliahed. Worse. it cannot be verlfted emplrlc:ally in advance. Only our descendants wUl know which scenarl-oe really materialize.

Yet, given the current! acc,_ned Jow-ley_!tl rad!oactJ_y_e wute source tenn, our ablllty to predict whether a near-surface facility can contain waate over lta full huardoua Ute la de~ent on the decision as to which acenarloa to accept u credible. Since thls decision cannot be scientifi-cally detenalned, lt must be ~tulated.

A recent study for the* Vermont Low-Level Radioactive Waste Authority ahowa that lf aome of what were hitherto considered "non-credible" scenarios were to be aetuallzed, a near-surface faclUty housing the long-Uvgd portion of the Vermont waste stream would fail to meet regulatory standards. 7 In other worda, there Ja a very real poaslblUty that the Q...nJ~ way one can believe that near-aurface dlapoaal facUlties can adequately isolate all of the accepted "low-level" waste 1treU1 la to uewne. on the baals of social theories with n~ aclen-tlflc basla, that certain patbway scenario* are not credible and will not occur.

Jn our view, there are a wide varlet)' of credible scenarios which the orlg.lnal ms refu1ed to examine. Por example, "NRC beUeves that deliberate lntrualon Into the dlapoeal facility cannot reasonably be protected against, and

46. FEIS, Vol. 2, A-43.

4 7. See Identification, esp. ES-1 to ES-2.

11

lt l8 not considered further." 48 In this one sentence. the EIS rules out any number of plausible scenarios with a wave of the hand. Part 61 makes no allowance for dellberate intrusion of any klnd. even though a variety of motl-vatlona tor such Intrusion are plausible.

Por example. certain of the materials which will be included ln the "low-level" waste stream will be scarce and valuable. For example. there are large quantities of stainless steel ln low-level radioactive waste. The component reaoune* of atainleaa steel are finite, ao ite value la likely to increase over time.

It la therefore quite likely that. several hundred years from now, there will be an excellent economic incentive to mine theae materials, especially since they wlll be found ln wute facilities ln large concentrations.

It la not diftlcult to imagine that "mining" of these materials could be carried out by industrial robots in the not too cllstant future.

In consequence, even those knowing that theae aaterlala are hazardous to human health might be able to mine them without harmful contact to themselves.

A number of pc,ulbUltle* might follow.

Por example, after mining the wastes. unacrupuloua individuals could then sell them to unsuepecting members of the public at large.

Indlviduala ln Juarez, Mexico. unknowingly acquired radioactive stainless steel and sold lt onto the scrap market.

Thia cenarlo ls "realistic;" in tact. it has already occurred. Sl111llar acenarloe are also part or the to.xle waste 'landacape' ln New York and New Jersey, where organized crlllle dominates the waste dispos-al industry. The notion that organized crime would be involved In this kind or enterprise does not seem at all far-fetched.

The NRC and ita aupporten reply that anyone intelligent enough to know the value of these materials will also understand the radiological risks of exl)Otlure to them.

But as any philosopher can tell you, knowing what ls true does not invariably lead to doing what la right. In an incident a few years ago, preawoably knowledgeable worken at the Beatty. Nevada low-level radio-active wute site removed radioactively contamlnlfd tools from the site and used them ln local oft-site construction projects.

More broadly, the original EIS and its allies seem certain that there will be reaponaible bodies around

• at all times to fully and rationally consider the coats and benefits to be derived from obtaining these materials. For example.

ln re1pondlng to the comment about tanning quoted on paJ?e 9. NRC wrote: "If at some future time It la decided to use the site for productive purposes (such as tamung u noted in the comment) the potenti 1 p c s of doing so would have to be weighed and balanced agalnat the lmpact.s. "61 4'8. DEIS, Vol. 1, p. 16.

4'9. See Donela H. and Demia L Meadows et at. Llmtta to Growth. NY, Univerae Booka, 1974.

60. Directions in Low-Level Radioactive Waste M~n.~~t_; ~ ijrief f.:iato,:y of Qomme~at L~:-

level Radioactive Waat.!_ ptaposal. OOE/LLW-103. October, 1990. p. 19.

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This reasoning assumes a rational decision making proceu. with tull knowledge ot pel'tinent coats and benefits. This in tum assumes that, at all times after the lnstitutlonal control period ends, the world will be dominated by technically trained, rational declslon-maklng bodies, who will have acceptable alternatives to making use ot radioactive waste sites. But as the same com-menter noted. lt la equally likely, ln the real world, that *The water crisis may be so serious that the use ot cont&llllnated wells may be allowed. *62 Indeed.

there may be no better choice.

It ls also quite plausible that. once lnstltutlonal control ls relinquished, decialona 111ay be made privately, by unquallnect and or ignorant indlvlduals.

without acceas to all of the tactual lntormatlon needed to make a fully rational choice. Indeed, one ot the main Justincatlona for confining the institutional control period to I 00 years was the uncertainty involved in proJgitlng our octal structures on future societies over longer periods of time.

Agaln, the EIS states that *unusual actlvltlea such u archaeologist re-elalalng artifacts at the site were not considered. *64. What makes NRC believe that archaeology la an *unusual" activity? How many other equally "unusual" acenarloa have been cuuaUy discarded?

Still other scenarios come easily to llllnd. Rellglous or other fanatics could capitalize on the hazardous nature or these materials in a variety or terrorlat activities. Acta of suicidal terrorism are a common occurrence ln today' world, and are therefore far from unimaginable ln this context. In responding to criticism on the DEIS, NRC states: "NRC did not consider the effects ot terrorism or sabotage:,,-The agency then goes on to comment: "Be-sides the unlikely nature ot such event*~ their consequences would generally be llllllted and Involve only onslte effects.* 6 Unfortunately. terrorist acts are not unllkely ln today's world; they happen almost dally. Portunately, so far. not too many ot them have happened in the United States, but there ls no reason to assume that our good fortune will lut forever (or more precisely tor the thousands of years that the materi-ala ln these facilities will remain toxic). Moreover, there ls absolutely nothln,:

on the record or elsewhere to verify the conjecture that damages would be llmlted and remain onslte.

It should not be necessary to multiply these scena los; a small amount ot thought ls enough to imagine any number of them.

Contre.ry to NRC's assump-tions, we do not llve In a benign world. tuU only or kind, lnteUigent. well-meanlng, and well-acUusted individuals, as the decision to ignore deliberate Intrusion lmpllea. Simply put, there are a great many Imaginable scenarios

62. FEIS, Vol. 2, p. A-43.

63. See DEIS, Vol, 1, pp. 27-28; Vol. 3, p. C-36; l:_EIS, Vol. 2, pp. B-138 to B-141.

64. FEIS, Vol. 2, p. B--42.

55. FEIS, Vol. 2, p. A-44.

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lnvolvlng dellberate lntrualon. at least some of which are highly "credible. *66 In sum. wlth all due respect to NRC's expertise. there ts nothing to indi-cate that the agency has experience or knowledge suttlctent to ratlonaUy declde what scenarios might be *credible" during the thousands of years over which portions of the currently denned low-Jevel radloactlve waste stream will remain hazardous. NRC's conscloua decision to base this set of re.ut tions on only three possible "scenarios. 11 excluding anything that smacks of I gal or Illegal enterprlae, anything recognizing the value of the land or the materials buried under lt, anything reeembllng intentionally immoral activity. or anything other than a leaa and leas colftlllon Ufestyle does not lend any credence to the agen-cy's present sociological expertise. let alone its ability to predict the future.

An euy remedy ls at hand. Rather than attempting to confl'ont each intrusion scenario, NRC could take the considerably easier course of Umlting the hazard or the te to be pl ce n near-surface disposal faclUtlea In the first place. This was the intended function of the waste classU'lcation tJYBtem when Part 61 wu originally pl'Olllulgated.

The Expected Result of All of ~

Re-examJnat1_9n Indeed. the re-examlnatlona which follow fro* the requested nslemaklng we are seeking are likely to result ln a relatively small narrowing of the waste stream* conaldered acceptable for near-surface disposal of low-level radioactive waste.

As noted above, studies undertaken tor the Venoont Low-Level Radioac-tive Waste Authority indicate that approximately 12,. of the volume of Ver-mont's waste might be considered unacceptable as a result of an analysts using a wider range of acenarloa than those postulated by NRC.

We would expect these same waste streams to also be considered unacceptable a8 a result of the 100 rem v1. 500 mrem analysts called for above.

Indeed. this follows as a conaequence of the original reasoning In the EIS. which resulted in the rejection of *wute 1.treama containing large quantities of tranauranica from near-surface disposal. 1167 The only difference ls that the re-examination wlll show that the tranauranlc* are not alone in offering a substantial hazard if 1>laced in near-surface facllltles.

Indeed. the studies of Vermont's waste undertaken 8 0 far indicate that a number of non-t ransuranic isotopes are e ually troublesome.

Including Co-eo. Ca-137 (and Ba-137). Nl-69, and C-14.6 The resolution we are advocating ls elegantly simple.

By removing a few more waste streams than t ho e originally elim d by ~ RC. t,,,o major difficul-ties can finally be addreHed without benefit of substantial but baseless specu-

66. Indeed, after we presented these argwnema to Vermont legislators, they amended the draft of Act 296 to detete the word *tnactvertent* before "intruders* In§ 7023()( 12) and *1ntrua1on* in I 7023(a)( 14). Act 296 then became law wtthout the word "Inadvertent.*

67. DEIS, Vol. 1, p. 23.

68. Survey of Potential Separation Technologies for Low-Leve! Radioactive~!! !! ~l'J~t*tec:1 in Vennont: Overview and Conclusions, prepared by S.M. Stoffer. April, 1992. Figure 5-1. There are reaaona to believe that 1-1 29 and Tc-99 should also be inctuded on this li&t.

14

latlona. Potential Intruder doses can be held well within regulatory limits (and possibly quite a blt lower) whlle miata.kea ln scenario prognostication will still not result 1n regulatorlly unacceptable harm to intruders or to the public.

Moreover. every indicator cunently available auggeata that the volumes of waste 1n question are quite small relative to the overall low-level radioac-tive wute stream, - on the order of 10,. of the total.

At least according to the work done so far In Vermont, lt appears that cert n Ion-exchange resins and reactor components (both NPRCOMP and de<:ommlsal<'ning componenta) are entirely reaponsible tor the long-term doses from low-level radioactive waste.

Ellmtnatlng these long-llved. high activity waste streams fl'om. the low-level radloactlve waste would undoubtedly result ln greater public acceptance of the near-surface facllltlea currently being designed for compllance with the Low Level Radloactlve Waste Polley Amendments Act of 1986.

SUJIUD&J'Y and Concluslo*na The New England Coalition on Nuclear Pollution

• ls petitioning for a ruleaaaklng revlalng 10 CPR 81.66 and for a supplemental EIS to accom111odate key new pieces or lnformatlon. First, the regulatory guidance for "acceptable"

. doses to members of the pubUe ln unrestricted areas has changed from 600 mrem/year to 100 arem/year. Seeond, the cost dltrerential between the shal-low-land burial taclllty used as a base case and the geologic facilities needed to dispose of waste unacceptable tor near-surface dtaposal were exaggerated ancl should be reviaed. In addltlon. whlle scenarios other than NRC'a three chosen scenarios were considered. they were hastlly and Imprudently eliminated.

Supplementing the EIS ln all three of thee ways wlll probably result in a small component of the )ow-level radioactive waste stream currently considered

• acceptable* for near-surface disposal being declared unacceptable.

Because of thl* we urge the NRC to act on this petition prior to Ucenslng any new low-level radioactive waste dispoaal 'racllltlea. By acting favorably on this petition.

the safety or all of the nation's low-level radioactive waste disposal facilities wUI be greatly enhanced. thereby better implementing NRC's regulatory mission to protect the public health and safety.

15 t edf.,J/,

/./(/t,rg, Trustee 27, /;2