Low-Level Radioactive Waste Forum, Inc.

Part 61 Working Group
November 19, 2019

Secretary
U.S. Nuclear Regulatory Commission Washington, DC 20555–0001,
ATTN: Rulemakings and Adjudications Staff                                   Docket ID No.: NRC–2017–0081
RE:      Comments on the Draft Regulatory Basis for the Disposal of Greater-than-Class C (GTCC) and Transuranic Waste (RIN number: 3150-AK00)

Dear Secretary:

On behalf of the Low-Level Radioactive Waste Forum’s Part 61 Working Group, we appreciate the opportunity to provide comments on the subject document.

The Low-Level Radioactive Waste Forum (Forum) is a non-profit organization of representatives appointed by Governors and compact commissions that seeks to facilitate compact and state implementation of the Low-Level Radioactive Waste Policy Act of 1980 and its 1985 amendments, as well as to promote the objectives of regional low-level radioactive waste disposal compacts. In 2012, the LLW Forum formed the Part 61 Working Group (P61WG) to provide input from the compacts and states on the 10 CFR Part 61 rulemaking initiative and related low-level radioactive waste matters.

The P61WG is currently comprised of representatives from the sited-states of South Carolina, Utah and Washington, as well as a representative from the Commonwealth of Pennsylvania, as the designated host state in the Appalachian States LLRW Commission (Appalachian Compact).

On July 22, 2019, the U.S. Nuclear Regulatory Commission (NRC) published a notice of the availability of and request for comment on the Draft Regulatory Basis for the Disposal of Greater-than- Class C (GTCC) and Transuranic (TRU) Waste (84 FR 35037, July 22, 2019). In response to various requests from interested stakeholders, including the Forum’s Part 61 Working Group, to extend the comment period, the NRC published on September 13, 2019, a subsequent notice in the Federal Register extending the comment period until November 19, 2019. We express our appreciation to the NRC for extending the comment period.

As a result of the NRC’s July Federal Register Notice (FRN), the Forum reactivated the P61WG in order to perform an in-depth review of the draft document and FRN. We have reviewed the Draft Regulatory Basis and offer the following comments and note that more detailed comments addressing matters of specific importance or interest to individual members of the Form and the P61WG may also be submitted under separate letter for the NRC’s consideration. This is important to note because some of the P61WG members have previously commented on the Department of Energy’s 2011 Draft Environmental Impact Statement for GTCC and GTCC-like waste management. Accordingly, the comments offered by the Forum’s P61WG in this letter are intended to supplement and therefore not conflict with or duplicate those earlier comments.

First, we note that the Executive Summary of the Draft Regulatory Basis document clearly reaffirms the Commission’s direction that the NRC staff prepare such a document for stakeholder review and comment. During the recent public meetings, some commenters expressed concerns regarding the management of radioactive waste that is more properly characterized as high-level radioactive waste and essentially outside the scope of the Draft Regulatory Basis for the Disposal of GTCC and TRU wastes. We appreciate the NRC staff’s efforts during the public meetings to clarify the purpose and scope of the draft regulatory basis for GTCC and TRU waste disposal.

While the future need and importance of a national solution to the proper management of high-level radioactive waste is critical to the commercial nuclear power industry, we believe the scope of the GTCC and TRU waste discussion should not be overshadowed by such out-of-scope matters and that the final regulatory basis remain within the scope intended by the Commission. However, in order to provide added clarity, and in deference to the various comments offered during the recent public meetings, the NRC should provide in its supplemental information the context or relationship of high- level radioactive waste management matters. This information would clarify that such matters as those associated with potential interim storage facilities are beyond the Commission’s direction to staff with respect to GTCC and TRU waste disposal options and are therefore beyond the purpose and scope of the subject regulatory basis.

As sited states that have the jurisdictional authority over the existing low-level radioactive waste (LLRW) disposal facilities, we believe it is important to emphasize current LLRW disposal standards and requirements are in place and serve as the foundation for ensuring the protection of public health and safety and the environment for LLRW disposal. We remain committed to this important role and responsibility and believe the regulatory basis for GTCC and TRU waste disposal should continue to reaffirm this. We note that the sited states in their role and responsibility as Agreement States have the expertise and technical resources to determine the acceptability of GTCC or TRU wastes for disposal in facilities meeting Part 61 requirements.

A final regulatory basis for GTCC and TRU waste disposal should be consistent with the Forum’s mission to promote access for LLRW waste balanced with the need for flexibility for individual compacts and sited states in order to determine the acceptability of GTCC and TRU waste disposal with respect to state policy, site-specific conditions, and existing waste acceptance criteria, consistent with Part 61 requirements.

We support the Commission’s direction in SRM-SECY-15-0094 for the need to harmonize the definition of transuranic waste (TRU waste) in 10 CFR Part 61 with the statutory definition found in current federal law as a matter of making the Part 61 regulations consistent with existing federal law.

As stated in the Draft Regulatory Basis, NRC rulemaking would be necessary to establish the relevant criteria and requirements for a LLRW disposal facility licensed under Part 61 by an Agreement State to accept and dispose of GTCC and/or TRU waste. For purposes of providing regulatory consistency and added flexibility for an Agreement State, we support the need for rulemaking, particularly one that is not overly cumbersome or lengthy. Following completion of the regulatory basis, we encourage the NRC staff to not delay in providing the Commission with a rulemaking proposal for the disposal of GTCC and TRU waste under Part 61. The Part 61 Working Group firmly believes the Commission reconsider decoupling the GTCC-TRU rulemaking and the proposed Part 61 rulemaking in order to fold the GTCC-TRU rulemaking into the proposed Part 61 rulemaking as a single rulemaking in a timely manner because of the inherent benefit of integrating both rulemaking efforts. Integrating both rulemakings is especially valid for those low-level radioactive wastes with similar long-lived isotopes. This could also serve to ensure that compacts and sited states can address the Part 61 changes in a single, more coordinated and consolidated effort. This would also allow a sited state to address specific state policy considerations regarding such unique wastes in a similar manner, while maintaining regulatory compatibility.

Additionally, the NRC should clarify that the GTCC-TRU rulemaking would allow TRU waste disposal based on a performance assessment that meets the performance objectives described in the proposed changes to Part 61.

Again, we appreciate the opportunity to provide comments on the Draft Regulatory Basis for the Disposal of GTCC and TRU Waste and look forward to your consideration of our comments. Should you have any questions or require additional information, please feel free to contact me on behalf of the Forum’s Part 61Working Group at (801) 536-4257 or rlundberg@utah.gov.

Sincerely,

Rusty Lundberg, Chair Part 61 Working Group
Low-Level Radioactive Waste Forum
Utah Division of Waste Management and Radiation Control
195 North 1950 West, Salt Lake City, UT 84116

July 17, 2019: NRC SEEKS PUBLIC COMMENT ON DRAFT REGULATORY BASIS FOR GREATER-THAN-CLASS C WASTE DISPOSAL

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On October 19, 2017, from 2:00 to 5:00 p.m. EDT, the U.S. Nuclear Regulatory Commission (NRC)  held a public meeting at the agency’s headquarters in Rockville, Maryland to discuss the regulatory analysis for the 10 CFR Part 61 final rule entitled, “Low-Level Radioactive Waste Disposal” and the revised guidance for alternative disposal requests entitled, “Guidance for the Reviews of Proposed Disposal Procedures and Transfers of Radioactive Material Under 10 CFR 20.2002 and 10 CFR 40.13(a).” The NRC Public Meeting Announcement can be found here.

On September 8, 2017, the NRC released a Staff Requirements Memorandum (SRM) in response to SECY-16-2016 concerning the staff’s Request for Commission Approval to Publish Final Part 61 Rule and Related Documents. The September 8, 2016 SRM can be found here.

In October 2016, NRC released a Request for Commission Approval to Publish Final Part 61 Rule and Related Documents. More information can be found here.

On March 26, 2015, the U.S. Nuclear Regulatory Commission (NRC) published a proposed rule to amend 10 CFR Parts 20 and 61, “Licensing Requirements for Land Disposal of Radioactive Waste,” in the Federal Register (80 Federal Register 16,081) for public comment.  NRC also published a notice of availability of associated guidance, “Guidance for Conducting Technical Analyses for Low-Level Radioactive Waste Disposal,” for public comment in the Federal Register (80 Federal Register 15,930). Comments for both the proposed rule and the conforming technical guidance documents can be read here. For additional information, please see the LLW Forum’s News Flash titled, “Comment Period Opens re Proposed Changes to LLW Disposal Regulations.”

On February 20, 2014, NRC released a Staff Requirements Memorandum (SRM-SECY-13-0075) in which the Commission approves publication of the proposed Part 61 rule and the associated draft guidance for public comment, subject to the following comments and changes:

• The proposed rule should be revised to include a regulatory compliance period of 1,000 years.

• The proposed rule should be published with a compatibility category “B” applied to the most significant provisions of the revised rule, including the Period of Compliance; the Protective Assurance Analysis Period and its analytical threshold, which, as it is approached, requires the applicant to propose remedial changes to the disposal site design, or impose inventory limits, or propose alternative methods of disposal; and the Waste Acceptance Criteria.

• The Commission has approved staff’s proposal to require a 10,000 year intruder assessment analysis, built upon the same assumptions as the compliance and protective assurance analyses contained in the rule, which should be detailed in guidance documents.

• The site-specific analysis for protection of the general public within the 1,000-year compliance period should set a specific dose limit of 25 mrem/yr.

• The staff should focus on ensuring a thorough review of the draft guidance by the limited community of disposal operations in the U.S. This includes the licensees, Agreement States, and interested public. The staff should also ensure the draft guidance is reviewed by the broader scientific and academic community and other government agencies with disposal experience.

• The proposed rule should clearly indicate that the intruder assessment should be based on intrusion scenarios that are realistic and consistent with expected activities in and around the disposal site at the time of site closure.

• A further protective assurance analysis should be performed for the period from the end of the compliance period through 10,000 years. Given the significant uncertainties inherent in these long timeframes, and to ensure a reasonable analysis, this performance assessment should reflect changes in features, events, and processes of the natural environment such as climatology, geology, and geomorphology only if scientific information compelling such changes from the compliance period is available. In general, this analysis should strive to minimize radiation dose with the goal of keeping doses below a 500 mrem/yr analytical threshold. The radiation doses should be reduced to a level that is reasonably achievable based on technological and economic considerations.

• The Commission has approved the staff’s proposal for applicants to provide a qualitative analysis covering a performance period of 10,000 years or more after site closure to evaluate the ability of the disposal system to mitigate long-term risks associated with the disposal of long-lived low-level radioactive waste.

• The proposed rule should include a clear statement that licensing decisions are based on defense in depth (DID) protections, such as siting, waste forms and radionuclide content, engineered features, natural geologic features of the disposal site, and on performance assessment (PA) goals and insights, as well as scientific judgment. This combination of DID and PA should be identified as the “safety case” for licensing. The staff should clearly describe the attributes of the safety case in the proposed rule, as modified by this SRM, in terms of the types of DID protections and the role of the PA in satisfying performance criteria and establishing a safety case. Confirming changes should be made throughout the rulemaking package.

• The staff should develop a specific question for the Federal Register notice that introduces this proposed rule regarding whether the compatibility designations assigned to the various sections of the proposed rule as modified by this SRM are appropriate and solicit comments on whether changes should be considered and for what reason. Although the Commission has assigned Compatibility “B” for the Compliance Period and the Protective Assurance Analysis Period, the staff should specifically solicit comment on that designation. In addition, a question should be added to the FRN regarding whether 500 mrem/yr is an appropriate analytical threshold for the Protective Assurance Analysis period.

• The Advisory Committee on Reactor Safeguards (ACRS) is encouraged to continue to provide their independent review and recommendations on the technical basis supporting this rule, and the accompanying draft guidance, during the rulemaking period.

• The public comment period should be extended to 120 days.

• The revised Federal Register Notice arising from the direction in the staff requirements memorandum should be provided to the Commission for its review no later than 10 business days prior to its transmittal for publication.

A copy of SRM-SECY-13-0075 is available at http://www.nrc.gov/reading-rm/doc-collections/commission/srm/2013/2013-0075srm.pdf.   The proposed rule (SECY-13-0075) can also be found in the NRC’s Agencywide Documents Access and Management System (ADAMS) using accession number ML13129A268. The following enclosures were submitted along with the proposed rule: a draft Federal Register notice (ML13129A262); draft regulatory analysis (ML13129A264); and, summary of stakeholder feedback (ML13129A266).   To locate the proposed rule and enclosures on NRC’s web site, please go to www.nrc.gov and click on “Adams Public Documents” on the right-hand column.  Then, click on “Begin Web-Based ADAMS Search.”  When you open that page, click on “Advance Search” tab near the top. Then, for “document properties” enter “Accession Number” as the property, “is equal to” as the operator, and the specific ML number for the desired document.   For additional information, please contact Andrew Carrera in the NRC’s Office of Federal and State Materials and Environmental Management at (301) 415-1078 or at Andrew.Carrera@nrc.gov.

On July 18, 2013, NRC staff requested Commission approval to publish a proposed rule in the Federal Register that would amend 10 CFR Part 61. (See LLW Notes, July/August 2013, pp. 1, 32-38. NOTE: This link is only accessible to LLW Forum Members.)

The proposed amendments would revise 10 CFR Part 61 to require low-level radioactive waste disposal licensees and license applicants to conduct updated and new site-specific analyses and to permit the development of criteria for future low-level radioactive waste acceptance based on the results of these analyses. According to NRC staff, these amendments would ensure that low-level radioactive waste streams that are significantly different from those considered during the development of the current regulations will be disposed of safely and meet the performance objectives for land disposal of LLRW.

The proposed rule would update the existing technical analysis requirements for protection of the general population (i.e., performance assessment) to include a 10,000-year compliance period; add a new site-specific technical analysis for the protection of inadvertent intruders (i.e., intruder assessment) that would include a 10,000-year compliance period and a dose limit; add a new analysis for certain long-lived low-level radioactive waste (i.e., performance period analysis) that would include a post-10,000 year performance period; and revise the technical analyses required at closure.

NRC would also add a new requirement to develop criteria for the acceptance of low-level radioactive waste for disposal based on either the results of these technical analyses or on the existing low-level radioactive waste classification requirements. This would facilitate consideration of whether a particular disposal site is suitable for future disposal of depleted uranium (DU), blended low-level radioactive waste, or any other previously unanalyzed low-level radioactive waste stream. Additionally, the NRC is proposing amendments to facilitate implementation and better align the requirements with current health and safety standards. This rule would affect low-level radioactive waste disposal licensees and license applicants that are regulated by the NRC or the Agreement States.

For additional information regarding the P61WG report, please contact LLW Forum Executive Director Todd D. Lovinger at (754) 779-7551 or LLWForumInc@aol.com.