Supplemental Notice Concerning U.S. Department of Energy Interpretation of High-Level Radioactive Waste, 26835-26847 [2019-12116]

Download as PDF khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices climate based on the results of the EDSCLS or similar tool. (c) Number and percentage of schools annually that are implementing a multitiered system of support framework with fidelity. (d) Number and percentage of schools annually that are implementing opioid abuse prevention and mitigation strategies. (e) Number and percentage of schools that report an annual decrease in suspensions and expulsions related to possession or use of alcohol. (f) Number and percentage of schools that report an annual decrease in suspensions and expulsions related to possession or use of other drugs. These measures constitute the Department’s indicators of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to these measures in conceptualizing the approach and evaluation for its proposed project. Each grantee will be required to provide, in its annual performance and final reports, data about its progress in meeting these measures. This data will be considered by the Department in making continuation awards. Consistent with 34 CFR 75.591, grantees funded under this program shall comply with the requirements of any evaluation of the program conducted by the Department or an evaluator selected by the Department. 6. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things: Whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee’s approved application. In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23). VII. Other Information Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the program contact person VerDate Sep<11>2014 17:56 Jun 07, 2019 Jkt 247001 listed under FOR FURTHER INFORMATION CONTACT. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Frank T. Brogan, Assistant Secretary for Elementary and Secondary Education. [FR Doc. 2019–12101 Filed 6–7–19; 8:45 am] BILLING CODE 4000–01–P 26835 DC 20585. Telephone: (301) 903–2151. Email: James.Joyce@em.doe.gov. SUPPLEMENTARY INFORMATION: As DOE stated in the October 10 Notice and as this Supplemental Notice reiterates, DOE interprets this statutory term to mean that not all wastes from the reprocessing of spent nuclear fuel (reprocessing wastes) are HLW. DOE interprets the statutory term such that some reprocessing wastes may be classified as not HLW (non-HLW) and may be disposed of in accordance with their radiological characteristics. This Supplemental Notice provides additional explanation of DOE’s interpretation as informed by public review and comment and further consideration by DOE following the October 10 Notice. DOE has not made, and does not presently propose, any changes or revisions to current policies, legal requirements or agreements with respect to HLW. Decisions about whether and how this interpretation of HLW will apply to existing wastes and whether such wastes may be managed as non-HLW will be the subject of subsequent actions. I. Background DEPARTMENT OF ENERGY Supplemental Notice Concerning U.S. Department of Energy Interpretation of High-Level Radioactive Waste Office of Environmental Management, U.S. Department of Energy. ACTION: Notice. AGENCY: In this Supplemental Notice, the U.S. Department of Energy (Department or DOE) supplements and updates its 2018 Request for Public Comment on the U.S. Department of Energy Interpretation of High-Level Radioactive Waste, published in the Federal Register on October 10, 2018 (October 10 Notice), concerning its interpretation of the statutory term ‘‘high-level radioactive waste’’ (HLW) as defined in the Atomic Energy Act of 1954, as amended, and the Nuclear Waste Policy Act of 1982, as amended. ADDRESSES: This Federal Register Notice (Notice) is available on the Department’s website at: https:// www.energy.gov/em/high-levelradioactive-waste-hlw-interpretation. FOR FURTHER INFORMATION CONTACT: James Joyce, U.S. Department of Energy, Office of Environmental Management, Office of Waste and Materials Management (EM–4.2), 1000 Independence Avenue SW, Washington, SUMMARY: PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 The Department sought public comments on its HLW interpretation through its Request for Public Comment on the U.S. Department of Energy Interpretation of High-Level Radioactive Waste, 83 FR 50909 (October 10, 2018). The 90-day public comment period, including a 30-day extension to submit comments, invited public input in order to better understand stakeholder perspectives, and sought to increase transparency and enhance public understanding of DOE’s views of its legal authority. DOE received a total of 5,555 comments, roughly 360 of which were distinct, unrepeated comments, from a variety of stakeholders: Members of the public, Native American tribes, members of Congress, numerous state and local governments, and one federal agency, the Nuclear Regulatory Commission (NRC). All input is important to the process and all comments were carefully and fully considered by DOE. DOE is issuing this Supplemental Notice to provide the public additional information about its HLW interpretation, informed by public comments. This interpretation does not change or revise any current policies, legal requirements, or agreements with respect to HLW. Decisions about whether and how this interpretation of HLW will apply to existing wastes and whether such wastes may be managed as non-HLW will be the subject of subsequent actions. The following E:\FR\FM\10JNN1.SGM 10JNN1 26836 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES sections of this Supplemental Notice describe the Department’s HLW interpretation, and provide summary responses to significant and recurring comments received through the public comment process. As a first step in determining whether and how to implement this HLW interpretation specific to a particular waste stream, DOE is initiating a public process under the National Environmental Policy Act (NEPA) to analyze the potential environmental impacts associated with disposing of certain waste from the Savannah River Site at a commercial disposal facility outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. This NEPA process is explained further in a separate Notice, Environmental Assessment for the Commercial Disposal of Defense Waste Processing Facility Recycle Wastewater from the Savannah River Site (NOI) that was submitted concurrently with this Supplemental Notice for publication in the Federal Register. At this time, DOE is not considering whether to implement the HLW interpretation at any other site or for any other waste stream. While DOE will continue in the normal course to evaluate its waste inventories and related management and disposal options, and expects to engage openly with stakeholders regarding potential future opportunities to implement the HLW interpretation more broadly, any decisions about whether and how the interpretation will apply to other wastes at any specific site will be the subject of subsequent actions. II. Summary Description In this Supplemental Notice, DOE explains its interpretation of the term HLW, as defined in the Atomic Energy Act of 1954, as amended (AEA, 42 U.S.C. 2011 et seq.) and the Nuclear Waste Policy Act of 1982, as amended (NWPA, 42 U.S.C. 10101 et seq.). DOE has the long-standing authority and responsibility under the AEA to ensure that all radioactive waste from the United States’ defense program— including reprocessing waste—is managed and disposed of in a safe manner. The AEA and NWPA define HLW as: (A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 (B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation. 42 U.S.C. 10101(12); see 42 U.S.C. 2014(dd). This definition of HLW makes clear that not all radioactive wastes from nuclear fuel reprocessing are HLW. DOE has the legal authority to interpret the term HLW in these statutes to determine that certain of its reprocessing wastes are not HLW based on their radiological characteristics. Accordingly, DOE interprets those statutes to provide that reprocessing wastes are properly classified as non-HLW where the radiological characteristics of the waste in combination with appropriate disposal facility requirements for safe disposal demonstrate that disposal of such waste is fully protective of human health and the environment. DOE has revised the interpretation stated in its October 10 Notice after consideration of public comments, in particular those of the NRC and affected state and local stakeholders, in order to clarify its meaning and import. Based on those comments, DOE interprets the statutes to provide that a reprocessing waste may be determined to be nonHLW if the waste meets either of the following two criteria: (I) does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations, and meets the performance objectives of a disposal facility; or (II) does not require disposal in a deep geologic repository and meets the performance objectives of a disposal facility as demonstrated through a performance assessment conducted in accordance with applicable requirements. Performance objectives are the quantitative radiological standards set by the NRC or DOE to ensure protection of the health and safety of individuals and the environment during operation, and after permanent closure of the disposal facility. The technical means to demonstrate compliance with performance objectives are through a modeling and analytical tool commonly referred to as a performance assessment. Safe disposal also entails compliance with other facility requirements, such as waste acceptance criteria—the technical and administrative requirements associated with waste acceptance, including but not limited to: Allowable radionuclide content; waste form and packaging; and required waste generator certifications and approvals. Reprocessing waste meeting either I or II of the above criteria is non-HLW, and—pursuant to appropriate processes—may be classified and disposed in accordance with its PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 radiological characteristics in an appropriate facility provided all applicable requirements of the disposal facility are met. As noted, additional, subsequent DOE action is required before the interpretation in this Supplemental Notice can be implemented. This Supplemental Notice, therefore, does not alter the Department’s current management of reprocessing waste for any specific waste stream. Each reprocessing waste stream has unique radiological characteristics and, accordingly, the interpretation will be implemented in subsequent actions on a site-specific basis, following consideration of: Evaluation and characterization of specific reprocessing waste streams in conjunction with the waste acceptance criteria and requirements of a specific waste disposal facility; input from affected stakeholders (e.g., federal, state, local and tribal officials; and members of the public); and compliance with applicable federal and state laws, regulations, and agreements. This interpretation does not, and will not be used to, abrogate DOE’s responsibilities under existing laws, regulations, agreements, or permit requirements. Nor does it change DOE’s existing statutory authorities or those of its regulators at the federal, state, or local level. DOE anticipates continued engagement and productive involvement of members of the public and the regulatory community in subsequent activities that may follow this HLW interpretation, including the NEPA process described in the NOI. III. Response to Comments DOE received 5,555 comments on its proposed interpretation that break down to roughly 360 distinct comments (that is, excluding duplicative form comments). DOE received both critical and supportive comments, with the majority of comments expressing concerns or questions relating to health and safety and environmental outcomes associated with the interpretation. The following sections of this Supplemental Notice provide additional detail and explanation of DOE’s HLW interpretation in response to the significant and recurring comments received. DOE is providing this additional information in response to comments, while recognizing that not all of this information is central to, or necessary for an understanding of DOE’s interpretation. To aid in organizing the comments, this section categorizes public comments in broad terms relating to the legal authority, technical basis, implementation, and other comments on the HLW interpretation. E:\FR\FM\10JNN1.SGM 10JNN1 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices A. Legal Authority for HLW Interpretation As DOE explained in the October 10 Notice, DOE interprets the term ‘‘highlevel radioactive waste,’’ as stated in the AEA and the NWPA, in a manner that defines DOE reprocessing wastes to be classified as either HLW or non-HLW based on the radiological characteristics of the waste and whether the waste can be disposed of safely in a facility other than a deep geologic repository. Having fully considered all comments received, DOE continues to believe that the HLW interpretation is legally sound, technically appropriate, and fully protective of human health and the environment. DOE’s purpose in issuing the interpretation in the form of an interpretative rule within the meaning of section 553(b) of the Administrative Procedure Act (APA, 5 U.S.C. 553(b)) is to provide the public with a clear and transparent explanation of DOE’s view of a specific legal question—the meaning of the term HLW, including the authority that Congress conferred on DOE through that term. DOE’s interpretation is, however, only one factor in initiating a broader process of identifying potential options for disposing of reprocessing wastes that are determined to not require disposal in a deep geologic repository. DOE will continue its current practice of managing all its reprocessing wastes as if they were HLW unless and until a specific waste is determined to be another category of waste based on detailed technical assessments of its characteristics and an evaluation of potential disposal pathways. khammond on DSKBBV9HB2PROD with NOTICES 1. DOE Authorities Consistent with its long-standing authority under the AEA to ensure that radioactive waste from the United States’ defense program is managed and disposed of in a safe manner, DOE has the legal authority to interpret the term HLW in the AEA and the NWPA to determine that certain of its reprocessing wastes are not HLW based on their radiological characteristics. This interpretation is consistent with the AEA, the NWPA, and Section 3116 of the 2005 Ronald Reagan National Defense Authorization Act (Section 3116, Pub. L. 108–375). The significance of ‘‘highly radioactive.’’ Commenters stated that under the NWPA DOE lacks the legal authority to determine that certain reprocessing wastes are non-HLW based on their radiological characteristics because Congress defined HLW based only on its source. The plain language VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 of the HLW definition contradicts this exclusively ‘‘source-based’’ interpretation. The AEA and NWPA define HLW as: (A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and (B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation. 42 U.S.C. 10101(12); see also 42 U.S.C. 2014(dd). In Paragraph A, Congress limited HLW to those materials that are ‘‘highly radioactive.’’ This limiting term applies to all reprocessing waste, including the ‘‘liquid waste produced directly in reprocessing’’ and ‘‘any solid material derived from such liquid waste.’’ The use of the limiting term ‘‘highly radioactive’’ demonstrates that Congress intended to distinguish between waste that is ‘‘highly radioactive’’ and waste that is not. If Congress had intended to define all reprocessing waste as HLW regardless of its radiological characteristics, it would not have included the ‘‘highly radioactive’’ requirement and instead defined HLW as ‘‘all waste material resulting from the reprocessing of spent nuclear fuel.’’ Similarly, for ‘‘any solid material derived from’’ the ‘‘liquid waste produced directly in reprocessing,’’ Congress also specified that in addition to being ‘‘highly radioactive’’ it must also contain fission products in ‘‘sufficient concentrations.’’ The terms ‘‘highly radioactive’’ and ‘‘sufficient concentrations’’ are not defined in the AEA or the NWPA. By providing in Paragraph A that liquid reprocessing waste is HLW only if it is ‘‘highly radioactive,’’ and that solid material derived from liquid reprocessing waste is HLW only if it is ‘‘highly radioactive’’ and contains fission products in ‘‘sufficient concentrations’’ without further defining these standards, Congress left it to DOE, for its reprocessing wastes, to determine when the standards are met. That is what DOE has done through its interpretation. DOE has evaluated the meaning of those terms based on its historical knowledge, experience, and expertise in managing reprocessing wastes. DOE’s interpretation is an articulation of the technical criteria that can be applied to individual waste streams on a case-by-case basis to determine whether the standard for HLW has been met. DOE also notes that in their comments on the interpretation, the NRC staff stated that they ‘‘agree PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 26837 with the concept proposed in Federal Register October 10 Notice (83 FR 50909) that radioactive waste may be classified and disposed of in accordance with its radiological characteristics.’’ DOE places significant weight on the NRC’s views of matters relating to the safe management and disposal of radioactive waste, including this HLW interpretation. Distinguishing between HLW and nonHLW based on the need for disposal in a deep geologic repository. Commenters stated that DOE’s interpretation is circular, and that there is no basis for the interpretation that if waste does not require disposal in a deep geologic repository then it is not HLW. DOE disagrees. DOE’s interpretation is consistent with the statutory text, the underlying purposes of the AEA and the NWPA, and the well-established principles of the NRC’s regulatory structure for the disposal of low-level radioactive wastes (LLW). As discussed above, without further defining the terms ‘‘highly radioactive’’ and ‘‘sufficient concentrations,’’ Congress left it to DOE to determine when reprocessing waste meets the standards. The statutory context is fundamental to determining the meaning of the terms ‘‘highly radioactive’’ and ‘‘sufficient concentrations.’’ Through the AEA Congress conferred on DOE the responsibility to ‘‘provide for safe storage, processing, transportation, and disposal of’’ reprocessing and other radioactive wastes resulting from the United States’ defense program. See 42 U.S.C. 2121(a)(3), 5814, 7151(a). DOE’s primary objective in fulfilling this statutory responsibility is to manage and dispose of radioactive waste in a manner that fully protects the public and the environment from the hazards posed by the waste. Similarly, a primary purpose of the NWPA is to identify those materials for which disposal in a deep geologic repository is the only method that would provide reasonable assurance that the public and the environment will be adequately protected from the radiological hazards the materials pose. See 42 U.S.C. 10131(b); 10101(12), (18). As the NRC has explained, Th[e] combination of highly-concentrated, short-lived nuclides together with other very long-lived nuclides has historically been described by the term ‘high-level radioactive wastes’ (HLW). There has long been a recognition that such waste materials require long- term isolation from man’s biological environment . . . Advance Notice of Proposed Rulemaking, Definition of High-Level Radioactive Waste, 52 FR 5992, 5993 E:\FR\FM\10JNN1.SGM 10JNN1 khammond on DSKBBV9HB2PROD with NOTICES 26838 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices (February 27, 1987). Deep geologic disposal is the internationally recognized and technically viable means to provide such long-term isolation for waste with both highly concentrated short-lived radionuclides and long-lived radionuclides. However, not all radioactive wastes have these properties, and therefore do not require the same disposal methods. Because not all radioactive wastes have the same radiological characteristics, there is a well-established statutory and regulatory regime for the safe and technically sound disposal of radioactive waste commensurate with the radiological hazard posed by the waste. Consequently, determining whether a particular reprocessing waste can be disposed of safely in a facility other than a deep geologic repository is the appropriate basis for differentiating between waste that is ‘‘highly radioactive’’ and waste that is not, and, for solid material, waste that contains fission products in ‘‘sufficient concentrations’’ and waste that does not. In its regulations, the NRC has identified classes of LLW—Class A, B, or C—for which near-surface disposal is safe for public health and the environment. Waste that exceeds the Class C tables in 10 CFR 61.55 also may be safely disposed in a near-surface disposal facility under certain conditions. This waste classification regime is based on the concentration levels of a combination of specified short-lived and long-lived radionuclides in a waste stream, with Class C LLW having the highest concentration levels. In accordance with NRC regulations, 10 CFR 61.55(a)(2)(iv) and 10 CFR 61.58, waste that exceeds the Class C levels is evaluated on a case-specific basis to determine whether it requires disposal in a deep geologic repository, or whether an alternative disposal facility can be demonstrated to provide safe disposal. Non-HLW Criterion 1. Because the NRC has long-standing regulations that set concentration limits for radionuclides in waste that is acceptable for near-surface disposal, it is reasonable to interpret ‘‘highly radioactive’’ to mean, at a minimum, radionuclide concentrations greater than the Class C limits. Waste that is at or below Class C limits does not have ‘‘highly radioactive’’ radionuclide concentrations because it can be, and routinely is, safely disposed in nearsurface facilities that are proven to be protective of human health and the environment. In other words, because waste within Class C limits clearly does not require disposal in a deep geologic VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 repository, it is not ‘‘highly radioactive’’ within the meaning of the HLW definition, and therefore, non-HLW. Non-HLW Criterion 2. As stated above, solid material derived from liquid reprocessing waste is HLW only if it is ‘‘highly radioactive’’ and contains fission products in ‘‘sufficient concentrations.’’ Where solid material derived from liquid reprocessing waste exceeds the Class C limits (and could, therefore, be considered ‘‘highly radioactive’’), it is appropriate to analyze also whether the waste contains ‘‘sufficient concentrations’’ of fission products in combination with long-lived radionuclides such that disposal in a deep geologic repository is necessary. As previously articulated, not all radioactive wastes are the same or require the same disposal methods. Only those wastes that have the characteristics of both high concentrations of short-lived radionuclides and long-lived radionuclides bear the hallmarks of a radioactive waste that is necessary for deep geologic disposal. Other disposal facilities may be capable of accepting the waste in compliance with the performance objectives of the facility, which means that the public and the environment can be effectively protected from harmful effects by safely disposing the waste in such a facility. Under DOE’s interpretation, where solid material exceeds the NRC’s Class C limits, such material can still be classified as non-HLW if technical analysis of the radiological characteristics of the waste demonstrates that it can be safely disposed in a facility other than a deep geologic repository. That is, analysis must show that a given waste can be safely disposed, considering the physical characteristics of a specific (non-geologic repository) disposal facility and a method of disposal compliant with the facility’s performance objectives. DOE and NRC authority under Paragraphs A and B of the HLW definition. Commenters stated that through its interpretation DOE is improperly attempting to assign to itself under Paragraph A of the HLW definition the authority that Congress assigned to the NRC. That is incorrect. The authority granted to the NRC in Paragraph B reflects Congress’ intent for the NRC potentially to define other ‘‘highly radioactive materials’’ as HLW. DOE recognizes the NRC’s authority on this point. DOE does not, however, agree with the commenters that by granting NRC, and not DOE, the authority to define non-reprocessing wastes as HLW, Congress explicitly or PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 implicitly deprived DOE of its longstanding AEA authority to interpret this statutory term as it pertains to DOE reprocessing wastes. DOE manages a large inventory of legacy reprocessing waste from atomic energy defense activities, e.g., nuclear weapons production. The structure of the HLW definition simply reflects Congress’ recognition of the respective roles that each agency has played under the AEA since the responsibilities of the Atomic Energy Commission (AEC) were divided between DOE and the NRC in 1974. The AEA vested in the AEC the exclusive responsibility to regulate the materials covered by the Act. See 42 U.S.C. 2201(b). With regard to the United States’ defense program, the AEA expressly provided the AEC the authority to ‘‘provide for safe storage, processing, transportation, and disposal of hazardous waste (including radioactive waste) resulting from nuclear materials production, weapons production and surveillance programs, and naval nuclear propulsion programs.’’ 42 U.S.C. 2121(a)(3). In 1974, Congress enacted the Energy Reorganization Act of 1974 (ERA), 88 Stat. 1233, as amended, 42 U.S.C. 5801 et seq., which abolished the AEC and divided its functions between DOE’s predecessor, the Energy Research and Development Administration (ERDA), and the NRC. See ERA, Sections 104, 201(f), Public Law 93–438, 88 Stat. 1233, 1237–38, 1242–44, 42 U.S.C. 5814, 5841(f). Under the ERA, the NRC was assigned responsibility for commercial licensing of nuclear power plants and related regulatory functions. 42 U.S.C. 5841(f). The NRC also acquired licensing authority over ERDA facilities in limited circumstances, including ‘‘[f]acilities used primarily for the receipt and storage of high-level radioactive wastes resulting from activities licensed under such Act’’ and ‘‘facilities authorized for the express purpose of subsequent long-term storage of high-level waste generated by the Administration, which are not used for, or are part of, research and development activities.’’ 42 U.S.C. 5842. The ERDA was assigned all other AEC functions, including its weapons production and defense waste management authority. 42 U.S.C. 5814(c). The ERA also authorized the ERDA Administrator to ‘‘prescribe such policies, standards, criteria, procedures, rules, and regulations as he may deem to be necessary or appropriate to perform functions now or hereafter vested in him.’’ 42 U.S.C. 5815(a). In 1977, Congress abolished the ERDA and transferred its functions to DOE. See Department of Energy Organization Act E:\FR\FM\10JNN1.SGM 10JNN1 khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices (DOEOA) Section 301(a), Public Law 95–91, 91 Stat. 565, 577–78 (1977), 42 U.S.C. 7151(a). Among other things, the DOEOA specifically assigned responsibility for the military applications of nuclear energy to DOE. Additionally, the DOEOA made clear that DOE retained all of ERDA’s radioactive waste management responsibilities and authorities including: (1) Control over existing Government facilities for the treatment and storage of nuclear wastes, including all containers, casks, buildings, vehicles, equipment, and other materials associated with such facilities; (2) control over all existing nuclear waste in the possession or control of the Government; (3) the establishment of temporary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes; and (4) the establishment of programs for the treatment, management, storage, and disposal of nuclear wastes. See 42 U.S.C. 7133(a)(8)(A), (B), (C), and (E). ‘‘This left control over existing government facilities and defense nuclear waste in DOE.’’ NRDC v. Abraham, 244 F.3d 742, 745 (9th Cir. 2001). Accordingly, it is well within DOE’s authority and responsibility to interpret Paragraph A of the HLW definition to determine whether reprocessing wastes within the DOE complex meet the technical criteria of ‘‘highly radioactive’’ and ‘‘sufficient concentrations.’’ Paragraph B, on the other hand, is a different type of function granted to NRC. The authority to define other ‘‘highly radioactive materials’’ that require permanent isolation is consistent with the NRC’s licensing and regulatory role under the AEA and NWPA. In assigning NRC this authority, however, Congress did not change DOE authority under the AEA to interpret this statutory term to ensure it is safely storing, managing, and disposing of its radioactive wastes in accordance with applicable law. Notwithstanding the clear division of responsibilities, DOE and the NRC have historically worked closely together on various issues relating to the safe management and disposal of radioactive waste, including HLW. As stated above, DOE places significant weight on the NRC staff’s agreement with the concept in DOE’s interpretation that HLW, like other radioactive waste, may be disposed of in accordance with its radiological characteristics. HLW interpretation and Section 3116. Commenters stated that DOE’s interpretation is inconsistent with Section 3116. DOE disagrees. The HLW interpretation does not impact DOE’s VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 intent and obligation to comply fully with Section 3116. In addition, Section 3116 does not limit DOE’s long-standing authority under the AEA to interpret the definition of HLW or to apply that interpretation to reprocessing wastes that are not covered by Section 3116. Section 3116 sets forth a process for determining that specified DOE reprocessing waste is not HLW. This Section 3116 process is similar to the process in DOE’s Order 435.1, Radioactive Waste Management, the accompanying DOE Manual 435.1–1, Radioactive Waste Management Manual, (Manual), and the accompanying DOE Guide 435.1–1, Implementation Guide for use with DOE M 435.1–1 (Implementation Guide) for determining whether certain reprocessing wastes are ‘‘wastes incidental to reprocessing,’’ or WIR. See Public Law 108–375, 2004, Section 3116(a). Section 3116 applies to two ‘‘covered States’’—South Carolina and Idaho. Id. Section 3116(d). However, Section 3116 does not apply to reprocessing wastes that are transported out of South Carolina or Idaho and disposed of in a different state. See id. Section 3116(c). Section 3116 also specifies that ‘‘nothing in this section establishes any precedent or is binding’’ outside of South Carolina and Idaho. Id. Section 3116(e). In short, in enacting Section 3116, Congress did not limit DOE’s long-standing authority under the AEA to interpret the term HLW or to apply this interpretation to reprocessing wastes that are disposed of in states other than Idaho and South Carolina. 2. DOE’s Explanation of Its HLW Interpretation Commenters stated that the HLW interpretation represents a change in DOE’s existing policy for determining whether reprocessing waste is HLW, and that DOE did not adequately explain the basis for that change. Some commenters also stated that DOE should update its existing authorities to be consistent with the HLW interpretation. Other commenters stated that the HLW interpretation is unnecessary in light of DOE’s existing mechanisms for determining whether reprocessing waste is HLW. As noted above, through this Supplemental Notice DOE is only stating its understanding of the proper interpretation of the statutory text in light of the language and purpose of the two Acts, which is also consistent with Congress’s direction and the expert community’s consensus, while remaining fully protective of the health and welfare of the public and the environment. This interpretation does PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 26839 not, by itself, change existing applicable DOE regulations, orders, or policies regarding the classification of wastes or the treatment of any particular waste stream. Implementation of this interpretation at a particular site or for a particular waste stream, and any changes to existing policies that may be appropriate in light of this interpretation will be the subject of subsequent actions. DOE acknowledges, as explained below, that the HLW interpretation in this Supplemental Notice differs from the existing WIR evaluation method under DOE Order 435.1 for determining whether reprocessing waste is HLW or WIR that is set forth in the Manual and Implementation Guide. DOE disagrees, however, that the HLW interpretation is unnecessary in light of the existing DOE Order 435.1 WIR evaluation method. DOE believes in light of further consideration that the HLW interpretation is the proper reading of the statutory definitions of that term, informed by DOE’s expert understanding of the risks presented to the public and the environment by different types of reprocessing wastes. As explained elsewhere in this Supplemental Notice, hereafter DOE will consider what actions may be needed and appropriate to update applicable DOE directives in light of this interpretation and will, as part of that process, assess whether any additional elements of its current policies should be amended. Accordingly, any changes in policy, including revisions to DOE Order 435.1, related documents, or the WIR process and its application, will be addressed in future actions. DOE Order 435.1 and WIR. Covering a broad range of topics, DOE Order 435.1 defines how DOE—through its programs and contractors—implements its AEA authority to manage radioactive waste at DOE-owned or leased facilities. The Order is intended to ensure that waste characterization, treatment, disposal, and environmental monitoring activities are conducted in a manner that protects the public, workers, and the environment from exposures to doses of radiation in excess of specified standards. DOE Order 435.1(4.b.). The Manual sets forth in more detail the requirements and responsibilities for managing waste under the Order. The Implementation Guide discusses acceptable methods for meeting the requirements of the Order and Manual. DOE Order 435.1 breaks down DOE’s waste management activities by waste type including HLW, transuranic (TRU) waste, and LLW. With regard to HLW, the Manual also formalizes the long- E:\FR\FM\10JNN1.SGM 10JNN1 26840 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices standing concept that ‘‘WIR’’ is not HLW because its radioactive characteristics do not pose the elevated risk to human health and the environment that HLW poses. According to the Manual, ‘‘waste resulting from reprocessing spent nuclear fuel that is determined to be incidental to reprocessing is not highlevel waste, and shall be managed as [TRU] or [LLW], as appropriate.’’ Manual at II.B.1 The 435.1 WIR Criteria provide that wastes being managed as HLW can be determined to be WIR, e.g., managed as LLW,2 where they meet the following criteria (DOE M 435.1–1, Chapter II– B(2)(a), page II–1,2): (1) Have been processed, or will be processed, to remove key radionuclides to the maximum extent that is technically and economically practical; (2) Will be managed to meet safety requirements comparable to the performance objectives set out in 10 CFR part 61, subpart C, Performance Objectives; and (3) Are to be managed, pursuant to DOE’s authority under the Atomic Energy Act of 1954, as amended, and in accordance with the provisions of Chapter IV of this Manual, provided the waste will be incorporated in a solid physical form at a concentration that does not exceed the applicable concentration limits for Class C low-level waste as set out in 10 CFR 61.55, Waste Classification; or will meet alternative requirements for waste classification and characterization as DOE may authorize. khammond on DSKBBV9HB2PROD with NOTICES If DOE determines that waste meets the 435.1 WIR Criteria, the waste is not HLW and DOE manages it as LLW or TRU waste. The above describes the WIR process in DOE Manual 435.1–1. DOE has applied the 435.1 WIR Criteria in limited circumstances to determine that certain waste is not HLW. The 435.1 WIR Criteria would not apply to reprocessing waste disposed of in South Carolina or Idaho, pursuant to Section 3116. As previously noted, reprocessing wastes that are transported out of South Carolina or Idaho and disposed of in a different state are not covered by Section 3116. WIR Criteria and the HLW interpretation. While the development of the 435.1 WIR Criteria was an 1 The Manual sets forth two processes for determining that waste is WIR, not HLW. First, under the ‘‘citation method,’’ a limited number of secondary solid waste items that fall on a precompiled list are excluded from HLW, including ‘‘laboratory items such as clothing, tools, and equipment.’’ Second, the ‘‘evaluation method’’ includes a consideration of the risk-related characteristics of the waste (435.1 WIR Criteria). 2 Under the WIR process, certain reprocessing wastes may also be managed as TRU waste, in accordance with DOE M 435.1–1, Chapter II– B(2)(b), page II–2. VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 important step forward in DOE’s management of HLW because it allows DOE in limited circumstances to determine that certain waste is not ‘‘highly radioactive,’’ DOE has reexamined the statutory term HLW. At this time, however, DOE is not making any decisions based upon this reexamination and is not modifying DOE Manual 435.1–1 or the current management of existing wastes. DOE will address such issues as it examines future application to any specific waste, and such examination will occur only with appropriate public engagement and full compliance with other legal obligations such as compliance with the National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.). With respect to the HLW interpretation, however, nothing in the statutory text of the AEA or the NWPA requires that radionuclides be removed to the maximum extent technically and economically practical prior to determining whether waste is HLW. DOE’s HLW interpretation is consistent with and informed by analysis of the risk presented to the public and the environment from reprocessing wastes. Reprocessing wastes that already meet existing regulatory requirements for safe disposal as LLW without any radionuclide removal do not present risks to the public and the environment that would necessitate their classification as HLW under the AEA and NWPA. Accordingly, DOE Manual 435.1–1’s requirement to remove radionuclides to the maximum extent technically and economically practical is not a component of DOE’s HLW interpretation as reflected in this Supplemental Notice. However, DOE continues to operate under DOE Manual 435.1–1 and any change to the terms or applicability of that document will be the subject of appropriate agency action. Why DOE is issuing the HLW interpretation. Through the AEA, Congress conferred on DOE the responsibility of safely and permanently disposing of the radioactive waste from the United States’ defense program, including reprocessing wastes. See 42 U.S.C. 2121(a)(3), 5814, 7151(a). While DOE has made important progress in fulfilling this responsibility, there has been widespread recognition that the current approach to managing and disposing of these wastes has shortcomings, and that alternative strategies should be explored and developed. Most recently, in enacting the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91), Congress specifically tasked DOE with ‘‘conduct[ing] an evaluation of the PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 feasibility, costs, and cost savings of classifying covered defense nuclear waste as other than high-level radioactive waste, without decreasing environmental, health, or public safety requirements.’’ Public Law 115–91, Sec. 3139. DOE’s report responsive to Congress’ directive is currently undergoing interagency review. Even before this Congressional directive, in 2012, for example, the Blue Ribbon Commission on America’s Nuclear Future (BRC)—a group of experts, including a former NRC Chairman, tasked by the Secretary of Energy at the request of the President with reviewing the existing policies for managing the back end of the nuclear fuel cycle— reported that ‘‘[t]he most important overarching criticism of the U.S. waste classification system is that it is not sufficiently risk-based. Rather, it is (for the most part) directly or indirectly source-based—that is, based on the type of facility or process that produces the waste rather than on factors related to human health and safety risks.’’ (Blue Ribbon Commission on America’s Nuclear Energy Future, Report to the Secretary of Energy, January 26, 2012 3). The BRC found that ‘‘the definition of HLW, in particular, has attracted the most criticism’’ for being insufficiently risk-based, noting that ‘‘to the extent that terms such as ‘highly radioactive,’ ‘sufficient concentrations,’ and ‘requires permanent isolation’ are used to define HLW, they have not been quantified.’’ Id. The BRC explained that this is ‘‘potentially problematic because the liquid waste stream from the front end of a reprocessing plant can have a broad range of characteristics—including characteristics that may be altered by time (decay) or by subsequent processing (which DOE has done with many of its defense wastes). The waste that remains after these changes, while still classified as HLW, may have characteristics similar to TRU waste or LLW.’’ Id. Consistent with Congress’ directive, the BRC’s report, and other similar reports and findings, DOE has reexamined its existing authorities and the statutory requirements for managing and disposing of reprocessing wastes, including the HLW definition and the 435.1 WIR Criteria. Consistent with the statutory text, DOE’s HLW interpretation is more fully based on radiological characteristics that determine risk. As such, it is the first step in a process of potentially opening new disposal pathways for reprocessing 3 The BRC report is available at: https:// www.energy.gov/sites/prod/files/2013/04/f0/brc_ finalreport_jan2012.pdf. E:\FR\FM\10JNN1.SGM 10JNN1 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES waste with lower levels of radioactivity, while protecting human health and the environment. This process will proceed on a site-by-site basis and involve, as appropriate, various stakeholders including the NRC, the Environmental Protection Agency (EPA), states, tribes, and others. DOE’s interpretation of HLW could, upon implementation, provide a range of benefits to both DOE and the public, including: Enhancing safety at DOE sites by using lower-complexity waste treatment and immobilization approaches to reduce the risks of longterm waste storage and management; reducing time that untreated radioactive waste is stored on-site at DOE facilities; furthering DOE’s commitment to state and local communities to move radioactive material out of the generator state; utilizing mature and available commercial facilities and capabilities to shorten mission completion schedules and reduce taxpayer financial liability; aligning with international guidelines for management and disposal of radioactive waste based on radiological risk; and establishing risk-informed disposal practices, consistent with current regulatory requirements for LLW. 3. Interpretative Rule Commenters stated that DOE’s HLW interpretation should be issued as a regulation. Commenters also stated that DOE should provide the public with more information about how the Department intends to implement the interpretation at each site where reprocessing waste is stored, and that DOE should provide additional opportunities for public participation beyond the 90 days of public comment provided on the interpretation. DOE wishes to make clear that an interpretative rule is a type of rule or regulation within the meaning of those terms in the APA, See 5 U.S.C. 551(4). It is well established under the APA that agencies have the authority to issue interpretative rules, and that these rules are a valuable tool for an agency to use to advise the public prospectively, and in a clear and transparent manner, of the agency’s construction of a statute it administers. As such, an interpretative rule does not have force and effect on its own. It is not until the agency takes an action in which the interpretation is applied that the interpretation can have an effect and, even then, only through that subsequent action. When DOE considers this statutory interpretation in the context of taking an action in the future with regard to specific wastes, it will evaluate its internal orders and policies to VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 determine if any require revision to accommodate this interpretation, and if so, DOE will follow applicable procedures to make any necessary changes. However, DOE’s internal system of orders are not rules or regulations under the APA, and do not themselves constitute agency action. Furthermore, DOE disagrees that the public required additional information about how DOE intends to implement the HLW interpretation in order to comment on it. The wealth of substantive comments received, including comments that led to revisions in the HLW interpretation as reflected in this Supplemental Notice, indicate that the public had a meaningful opportunity to comment on DOE’s general interpretation. Finally, DOE disagrees that additional process is necessary before DOE adopts the interpretation. As DOE indicated in the request for comments and is reiterating in this Supplemental Notice, there will be additional processes after the interpretation has been issued but before any specific waste classification or disposal decisions are implemented, as outlined in greater detail below. State, Tribal, Local and Public Involvement. The Department will work closely with State and local officials, regulators, tribal governments, and stakeholders, on a site-by-site basis, to ensure compliance with applicable programmatic requirements and regulatory agreements before classifying any reprocessing waste as non-HLW under the HLW interpretation or consequent disposal decisions. Path Forward. DOE expects that, depending on site and waste specific facts, some of its reprocessing waste will be found to qualify for non-HLW classification, while other waste will continue to be managed, and ultimately disposed of, as HLW. The development of the path forward for reprocessing waste classified as non-HLW, and decisions flowing from that path, will be dependent on executing a number of technical and regulatory steps (listed in no particular order, recognizing some steps may occur simultaneously), including, but not limited to: • Identifying potential disposal facilities. • Evaluating disposal facility waste acceptance criteria and impacts on performance objectives of the disposal facility (the licensee or permittee for the disposal facility may also be required to obtain appropriate regulatory authorizations to accept waste). • Coordinating with stakeholders. • Preparing or revising necessary permits. PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 26841 • Preparing NEPA or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) documentation, if needed, to retrieve, treat, package, characterize, and certify the wastes for disposal. • Modifying affected contracts, if necessary. • Including a fiscal year budget request to plan for and/or execute disposal of the waste stream. • Initiating project planning and execution activities in accordance with DOE Order 413.3B, Program and Project Management for the Acquisition of Capital Assets, as appropriate. • Developing waste loading, packaging, and transportation cask systems as needed to remove the waste from the site and deliver to the disposal facility. As explained above and in the NOI, DOE’s first step in determining whether and how to implement the HLW interpretation specific to a particular waste stream is initiating a NEPA process to analyze the potential environmental impacts associated with disposing of certain waste from the Savannah River Site at a commercial disposal facility located outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. At this time, DOE is not considering whether to implement the HLW interpretation at any other site or for any other waste stream. While DOE will continue in the normal course to evaluate its waste inventories and related management and disposal options, and expects to engage openly with stakeholders regarding potential future opportunities to implement the HLW interpretation more broadly, any decisions about whether and how the interpretation will apply to other wastes at any specific site will be the subject of subsequent actions. 4. West Valley Demonstration Project Commenters stated that DOE did not address the application of the interpretation to the West Valley Demonstration Project (WVDP) in New York. As commenters pointed out, the WVDP operates under a distinct statutory and regulatory basis pursuant to the West Valley Demonstration Project Act (Pub. L. 96–368), which provides a definition of HLW separate from the AEA and the NWPA. As such, DOE is now clarifying that: (1) The interpretation does not apply to the reprocessing wastes from the WVDP governed by Public Law 96–368; and (2) the interpretation therefore will not be used in connection with the disposition E:\FR\FM\10JNN1.SGM 10JNN1 26842 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices of any reprocessing wastes from the WVDP. khammond on DSKBBV9HB2PROD with NOTICES 5. Compliance With the National Environmental Policy Act Commenters stated that the HLW interpretation is a major federal action affecting the quality of the human environment, and that DOE is required to prepare a NEPA analysis that specifically addresses the potential environmental impacts of the interpretation. DOE disagrees that the HLW interpretation requires the NEPA analysis suggested by the commenters. As discussed above, through this Supplemental Notice, DOE is only stating its understanding of the proper interpretation of the statutory text in light of the language and purpose of the two Acts. Again, issuance of this Notice does not change how DOE will manage any particular reprocessing wastes, and it does not commit DOE to any specific disposal pathways for any reprocessing wastes. Rather, DOE’s interpretation helps initiate a waste-specific decisionmaking process that will include appropriate engagement with stakeholders before any final decisions could or will be made that potentially would result in any environmental impacts. As explained above, and in the NOI, DOE is separately initiating a NEPA process to study the potential environmental impacts associated with implementing the interpretation to dispose of certain waste from the Savannah River Site at a commercial disposal facility located outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. If, in the future, DOE proposes an additional action to which NEPA would apply, such as implementation of this interpretation with respect to other specific wastes, DOE will likewise analyze such a proposal pursuant to NEPA. B. Technical Basis for HLW Interpretation DOE is committed to the safe and environmentally sound disposal of all its radioactive waste, and the HLW interpretation enhances rather than lessens DOE’s commitment to that outcome. Commenters expressed concern that, in effect, DOE’s HLW interpretation would lead to the less rigorous and safe disposal of radioactive wastes without a sufficient technical basis. However, the source of the waste does not dictate its safe disposal—the radiological characteristics of the waste and the requirements of the disposal facility operate together to ensure safe VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 disposal. Reprocessing wastes that meet the criteria for non-HLW can be safely disposed along with other nonreprocessing wastes (with similar waste characteristics) that meet the disposal facility’s requirements. The requirements that ensure the health and safety of the public, workers, and the environment are long-standing and embedded in DOE’s and the NRC’s regulations and implementing procedures and documents (e.g., design, permitting, and operations processes for disposal of LLW). All commercial and DOE disposal facilities must be designed, constructed, operated, and closed to meet relevant safety standards, including performance objectives. Commercial LLW disposal facilities are licensed by either the NRC or Agreement States under 10 CFR part 61. LLW disposal facilities owned by DOE must be authorized by DOE in accordance with DOE Order 435.1 and associated manuals, guides, and other directives. Tank closures in the states of Idaho and South Carolina must comply with Section 3116, while tank closures in Washington must comply with the requirements of DOE Order 435.1. The HLW interpretation and the two criteria for non-HLW are based on wellestablished approaches for waste classification and disposal. The first criterion is derived directly from the NRC’s waste classification system established in the 1980’s under 10 CFR 61.55. The second criterion is consistent with both the NRC’s alternative classification system (10 CFR 61.58, Alternative Requirements for Waste Classification and Characteristics, and 10 CFR 61.55(a)(2)(iv), Waste Classification) and DOE Manual 435.1–1, which regulates the safety of LLW disposal facilities according to demonstrated compliance with public health and worker safety-based performance objectives. The NRC’s performance objectives for commercial LLW disposal facilities (10 CFR part 61, subpart C) and the DOE performance objectives for DOE LLW disposal facilities (DOE M 435.1–1, Chapter IV, Paragraph P) are comparable in their standards and focus on protecting the environment, workers, and the public. Both criteria 1 and 2 directly incorporate the requirement that a reprocessing waste must meet the performance objectives of a LLW disposal facility to be determined as non-HLW. As further explained below, performance objectives set forth the overarching radiological standards necessary to protect the health and safety of individuals and the general population from radiological releases, both during operation and following the PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 closure of the disposal facility. Disposal facilities have other requirements that must be met for disposal of the waste, including for example satisfaction of waste acceptance criteria (WAC). The WAC are the technical and administrative requirements a waste must meet to be accepted at a disposal facility (e.g., waste characterization, waste form acceptability, quality assurance), and are established to ensure the disposal facility, in total, meets its safety-based performance objectives.4 Although DOE’s plain reading of the statutory definition of HLW stands on its own, the following information is provided to further public understanding of the interpretation from a technical perspective. 1. Criterion 1—Waste At or Below Class C LLW Limits Criterion 1, as stated in the October 10 Notice, provided that a reprocessing waste is non-HLW if the waste: ‘‘does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations.’’ This criterion has been revised to clarify that a waste must also meet the performance objectives of a disposal facility. The revised criterion provides that a reprocessing waste is non-HLW if the waste: ‘‘does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations, and meets the performance objectives of a disposal facility.’’ This criterion would be applicable only to DOE waste suitable for off-site disposal at a commercial disposal facility regulated by the NRC or an Agreement State. Commenters offered a number of observations about criterion 1, as originally stated. Commenters noted that this criterion does not require that the waste comply with the performance objectives of a LLW facility, only that it meet the 10 CFR 61.55 concentration limits. Other commenters believed it to be unreasonable because, for example, it would permit DOE to convert HLW to non-HLW by dilution or concentration averaging (e.g., mixing with grout); DOE reprocessing wastes have different radionuclides than commercial LLW; and DOE would need to employ statistical sampling to accurately characterize waste for the purposes of assessing whether it meets the Class C 4 Each disposal facility has its own WAC, which are dictated in part by the physical characteristics of a site. An example of a site-specific WAC for the WCS commercial disposal facility in Texas is available at: http://www.wcstexas.com/pdfs/formsand-docs/Waste%20Acceptance%20Criteria-a.pdf. E:\FR\FM\10JNN1.SGM 10JNN1 khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices standard. On the other hand, several commenters believed this criterion was reasonable based on its technical merit, and supported DOE in its technical rationale for this criterion. These comments are addressed below; a comparison of NRC and DOE safety goals and performance objectives for LLW disposal facilities is provided in Appendix A of this document. Compliance with performance objectives. In response to comments, DOE has revised this criterion to expressly state that the reprocessing waste must meet the performance objectives of a disposal facility. DOE understands that a waste meeting the concentration limits in the tables in 10 CFR 61.55 alone is not sufficient to effectuate the disposal of non-HLW at a disposal facility. If a certain reprocessing waste stream is determined by waste characterization data and analysis to have concentrations satisfying Class A, B, or C using the 10 CFR 61.55 tables, and meets the performance objectives of a disposal facility, then the waste stream is nonHLW. This process is consistent with how DOE disposes of non-reprocessing waste (e.g., soils and debris from environmental restoration and decontamination and decommissioning [D&D] of nuclear facilities) that the Department determines is appropriate for DOE disposal facilities or off-site commercial disposal. The process is also consistent with how industry routinely disposes of LLW in commercial disposal facilities. Concentration Averaging. Application of DOE’s interpretation would not result in improper dilution of a reprocessing waste stream. Dilution of a waste stream to meet concentration limits is not permitted by DOE (Implementation Guide, Section II–A, page II–4) or the NRC (Concentration Averaging and Encapsulation Branch Technical Position, Revision 1 (February 2015)). Some types of stabilization (e.g., grouting), solidification, or other treatment would result in reductions of radionuclide concentrations. However, this is not dilution if stabilization or solidification is required by disposal sites’ waste acceptance criteria to immobilize radioactive constituents and meet long-term performance objectives. Grout, for example, is a proven safe and effective technology that continues to be used by DOE and other national and international parties to stabilize radioactive wastes, including certain tank wastes, for disposal. Use of stabilization agents for this purpose is consistent with the NRC’s Concentration Averaging and Encapsulation Branch Technical VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 Position, which allows mixing of nonradioactive constituents with radioactive waste (e.g., solidification, encapsulation, or additives used in thermal processing) provided the mixing has a purpose other than reducing the waste classification, such as waste stabilization or process control. Furthermore, the addition of stabilization agents to the waste prior to disposal is often necessary to meet the NRC requirements in 10 CFR 61.56, Waste characteristics (e.g., to ensure structural stability of the waste form). Radionuclides in DOE reprocessing waste. Commenters noted that DOE reprocessing wastes are unique, and it may be improper to consider some DOE reprocessing wastes as comparable to the LLW classification concentration limits in the NRC regulations that are based on generic LLW from the commercial sector. Commenters noted that some DOE reprocessing waste streams, in particular those that are not currently treated, may contain unique radionuclides. This does not mean that the criterion is improper, only that, as DOE has stated in the October 10 Notice and this Supplemental Notice, waste classification and any disposal decision would not be made until DOE completes waste characterization, among other prerequisite actions (e.g., applicable NEPA compliance). The results of this analysis, and the ability to meet performance objectives at the intended disposal facility would dictate the ultimate waste classification for disposal purposes. Regarding 10 CFR 61.55, table 1 addresses seven specific radionuclides and alpha emitters with half-lives greater than five years, and table 2 includes four additional specific radionuclides with the Class C limits. These nuclides identified by NRC are the most mobile and problematic of all possible key radionuclides and their concentration determine the classification of the waste. Regardless of classification, compliance with performance objectives is ensured through compliance with the disposal facility waste acceptance criteria for all key radionuclides. For DOE facilities, which do not follow the 10 CFR 61.55 waste classification tables, and the NRC/ Agreement State facilities, the full range of radionuclides would be considered as part of the regulatory review of a facility’s ability to meet applicable performance objectives. Sampling. DOE will continue to use the existing framework of guidelines, best practices, regulations, and other mechanisms to ensure that each waste stream—whether from reprocessing or other sources—is properly characterized PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 26843 before it is received by a treatment, storage, or disposal facility. DOE follows established practices to characterize and document radioactive waste in sufficient detail to ensure safe management and compliance with the waste acceptance requirements of any facility receiving the waste. These practices are described in DOE M 435.1– 1 (e.g., Chapter II–L, page II–5, and Chapter IV–1, page IV–4); DOE G 435.1– 1 (e.g., Chapter II–L, page II–78, and Chapter IV–I, page IV–70); EPA guidance (e.g., Hazardous Waste Test Methods/SW–846, Guidance on Systematic Planning Using the Data Quality Objectives Process, etc.); NRC guidance (e.g., Concentration Averaging and Encapsulation Branch Technical Position); DOE or commercial facility waste acceptance criteria; and DOE waste analysis plans and sampling and analysis plans for specific waste streams or activities (e.g., tank waste retrieval); and other documents. 2. Criterion 2—Waste Above Class C Limits Criterion 2, as stated in the October 10 Notice, provided that a reprocessing waste is non-HLW if the waste: ‘‘does not require disposal in a deep geologic repository and meets the performance objectives of a disposal facility as demonstrated through a performance assessment conducted in accordance with applicable regulatory requirements.’’ This criterion has been revised from ‘‘applicable regulatory requirements’’ to ‘‘applicable requirements.’’ The revision was made to more precisely reflect that performance assessments are conducted pursuant to DOE and NRC requirements, guidance, and standards. Commenters raised several concerns about criterion 2, as originally stated. Comments regarding this criterion centered on DOE as a self-regulator, with the ability to unilaterally determine or change performance standards for its own facilities, and DOE’s reliance on performance assessments. Commenters also noted more specific concerns, such as DOE’s use of performance objectives rather than waste acceptance criteria and the need for DOE to counteract the purported motivation of a commercial disposal facility to accept any waste for a profit. As with criterion 1, these comments are addressed below, and Appendix A of this document contains a comparison of NRC and DOE safety goals and performance objectives for LLW disposal facilities. DOE regulatory role. Congress conferred on DOE the authority to, in certain circumstances, self-regulate its E:\FR\FM\10JNN1.SGM 10JNN1 26844 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES own radioactive waste management and disposal in accordance with the AEA, as amended, and other statutes. Where DOE disposes of its wastes at NRC or Agreement State licensed facilities, DOE is not the regulator and is subject to the same requirements and oversight as any private customer. While DOE has selfregulatory authority in certain circumstances, that does not mean DOE operates with unfettered discretion and without oversight. DOE is subject to various levels of independent internal and external oversight making it accountable to comply with an integrated framework of laws and technical standards to protect public health, safety, and the environment. Contrary to the concerns of some commenters, DOE’s internal governing documents (e.g., DOE Order 435.1, and associated manual and guide) represent a mature and robust system to address the protection of workers, public health and safety, and the environment for all DOE onsite radioactive waste management, as well as environmental restoration activities resulting in off-site management and disposal of radioactive waste. Many of the current DOE compliance-related actions revolve around waste and material disposition that are governed by, among other external regulatory regimes: CERCLA; Resource Conservation and Recovery Act (RCRA) or industrial waste water regulations; and regulatory agreements. In addition, there are several organizations involved in oversight of DOE’s Office of Environmental Management and that office’s waste management and disposal activities, including: State agencies and EPA for activities under RCRA and CERCLA; the Defense Nuclear Facilities Safety Board (DNFSB) for defense nuclear facilities; DOE’s Low-Level Waste Disposal Facility Federal Review Group (LFRG) 5 for radioactive waste disposal and closure of liquid waste tanks; DOE’s Office of Environmental, Health, Safety & Security for establishing radiation protection standards through DOE orders and regulations; and DOE’s Office of Enterprise Assessment for independent oversight and enforcement 5 The LFRG is comprised of federal employees from DOE-Headquarters, the National Nuclear Security Administration, and DOE Field Elements with radioactive waste disposal facility responsibilities. Among its functions, the LFRG is charged with reviewing the underlying technical basis of a waste disposal facility, which may include, for example: Disposal facility performance assessments and composite analyses; appropriate CERCLA documentation; and other technical basis documentation (e.g., monitoring plan and closure plan). The reviews are performed to provide management with reasonable assurance that the applicable performance objectives and measures will be met. VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 functions covering all DOE program offices. Other forms of guidance or external accountability exist such that it would be highly difficult and unlikely for DOE to unilaterally change its requirements to be inconsistent with established norms and regulatory requirements for radioactive waste management. For example, the National Council on Radiation Protection and Measurements (NCRP), a Congressionally-chartered corporation (Pub. L. 88–376, July 14, 1964), plays a key role supporting radiation protection by providing independent scientific analysis, information, and recommendations that represent the consensus of leading scientists. NCRP draws from collaboration with the International Commission on Radiological Protection (ICRP), which has developed and maintained the International System of Radiological Protection used worldwide as the common basis for radiological protection standards, legislation, guidelines, programs, and practice. Further, the Interagency Steering Committee on Radiation Standards (ISCORS) operates at the federal level to ensure that comparable standards of protection are afforded to workers, the public, and the environment across agencies that develop and enforce regulations for nuclear-related activities and facilities. DOE is a member of the ISCORS, which is comprised of eight Federal agencies, three Federal observer agencies, and two state observer agencies that facilitate consensus on acceptable levels of radiation risk to the public and workers, and promote consistent risk approaches in setting and implementing standards for protection from ionizing radiation. The NRC and EPA play prime roles on ISCORS and, like DOE, set standards for the level of acceptable risk from radiation exposures by considering ICRP and NCRP recommended guidelines. Unilateral proposals to change practices would be met with significant scrutiny and oversight from ISCORS, as the actions of one agency reflect on policies in other agencies. Performance objectives and performance assessments. Several commenters were skeptical about DOE’s reliance on performance assessments and questioned whether such assessments provide the necessary level of technical rigor, particularly when used for LLW disposal versus HLW or spent nuclear fuel (SNF) disposal, which account for longer compliance time periods, to ensure safe disposal of non-HLW. Also, commenters noted the lack of regulatory standards for a PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 performance assessment and the potential for inconsistent application across disposal sites. Performance objectives are the regulatory means by which NRC and DOE set forth the overarching radiological standards necessary to protect the health and safety of individuals and the general population from radiological releases, both during operation and following the closure of the disposal facility (e.g., both DOE and NRC set the performance objective to ensure protection of the general population at a dose of no more than 25 millirem annually [DOE M 435.1–1, Chapter IV–P(1)(a), page IV–9, and 10 CFR 61.41]). Performance assessments (PA) are used by the NRC and other regulatory bodies as a universally utilized approach to radioactive waste disposal to demonstrate how performance objectives will be met. The PA is the process, model, or collection of models used to estimate future releases of radionuclides to the environment and potential doses to human receptors. NRC has specific and detailed requirements, guidance and standards applicable to the conduct of a performance assessment: NUREG 1573, Performance Assessment Methodology for Low-Level Radioactive Waste Disposal Facilities. DOE has comparable requirements set forth in DOE M 435.1– 1 (Chapter IV–P(2), page IV–11), and DOE Standard Disposal Authorization Statement and Tank Closure Documentation ((DOE–STD–5002–2017, Chapter 2). The disposal facility’s wide-ranging requirements—derived from the performance objectives of the facility and coupled with other quantitative and qualitative elements, e.g., waste acceptance criteria, defense-in-depth safeguards, sensitivity and uncertainty analyses, and waste form/disposal facility stability considerations—form an integrated framework to provide confidence that the disposal facility will perform safely to protect the public and the environment. The HLW interpretation does not change, and will not require any changes to NRC or DOE regulatory requirements or facility performance objectives. The same high standards for safety and technical rigor will be maintained across commercial and DOE disposal sites, recognizing that each site will have its own site-specific requirements. In addition, the disposal facility’s compliance period for ensuring protection of public health and safety is established by the regulator (e.g., NRC or Agreement State) and will be applied in accordance with the radiological E:\FR\FM\10JNN1.SGM 10JNN1 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices characteristics of the waste and the sitespecific performance objectives of the disposal facility. Other concerns. Other commenters raised the general concern that, under DOE’s interpretation, commercial operators would be motivated by profit to accept wastes that may not be safe for disposal. DOE believes this concern is misplaced, given the integrity and rigor of the regulatory system governing the disposal of LLW at private facilities licensed or permitted by the NRC and Agreement States. LLW has been, and will continue to be, disposed of at commercial facilities in a safe and technically sound manner. DOE has no reason to find that the addition of its non-HLW to this system would cause any different or irresponsible action from commercial entities. khammond on DSKBBV9HB2PROD with NOTICES 3. Technical Basis for Not Removing Key Radionuclides Commenters were concerned by DOE’s interpretation, which does not include the removal of key radionuclides ‘‘to the maximum extent practicable’’ as a condition for a reprocessing waste stream to be determined non-HLW. This concern related to all forms of disposal, whether in situ (e.g., closure of a waste tank), or at a designated DOE or commercial LLW disposal facility. Commenters noted that this is an element of both the existing 435.1 WIR Criteria, and Section 3116.6 As previously explained, there is nothing in the statutory text of the AEA or the NWPA that requires radionuclides to be removed to the maximum extent technically and economically practical prior to determining whether waste is HLW. Rather, the statutory text is focused on examining a waste in terms such as whether it is highly radioactive, contains fission products in sufficient concentrations, or requires permanent isolation. As a consequence, DOE believes that reprocessing wastes that already meet existing regulatory requirements for safe disposal as LLW without any radionuclide removal do not present risks to the public and the environment that would necessitate their classification as HLW under the AEA and NWPA. 4. Tank Closures Commenters, in particular government officials of states with underground radioactive waste tanks, voiced concern with DOE’s approach to the extent it would result in classifying 6 As noted elsewhere, the requirements of Section 3116 are not applicable to waste shipped out of South Carolina or Idaho and disposed of in another state. VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 26845 more information and details on implementation actions are important to DOE (and were constructive in assisting DOE with its criteria for non-HLW), and will be the subject of subsequent public interactions when DOE undertakes implementation. As stated in the October 10 Notice seeking public comment on the HLW interpretation, and equally applicable at this juncture, DOE is not by issuance of this interpretation making and has not made any decisions on the classification or disposal of any particular waste stream at any location. At this time, it is premature to conclude any detailed impact analyses or to provide specific implementation details or plans (e.g., what reprocessing waste will go to what facility); DOE will not be changing how it manages or disposes of its reprocessing waste except pursuant to subsequent actions to implement this interpretation, which would include appropriate NEPA analysis for any particular proposed action, such as the NEPA process described in the NOI. Notwithstanding that at present DOE has not made any implementation C. Implementation and Other Comments decisions, as mandated by law (Pub. L. on the HLW Interpretation 115–91, Sec. 3139), DOE prepared a DOE received a number of comments, Report to Congress providing in part the from state and local representatives, type of information requested by non-governmental organizations, and commenters (and several commenters individual members of the public specifically asked about the status of the suggesting the need for and inquiring report). The report is undergoing about more detailed information, e.g., interagency review and will not be waste inventory amounts, wastes publicly available until that review is affected by a different classification, complete and the report is submitted to transportation routes, and new disposal Congress. locations that would result from the Consultation and compliance. DOE Department’s implementation of its will not undertake any implementation interpretation. In particular, actions without appropriate interactions commenters wanted to better with applicable federal, state and local understand DOE’s approach with regard agencies, and Native American to state, local, and tribal consultation governments. The scope of when evaluating and implementing implementation will be considered site disposal decisions; the NRC’s regulatory by site, and conducted in full role; confirmation of compliance with compliance with existing statutes, applicable federal and state regulations, and DOE directives. Specifically, DOE will continue to environmental laws, regulations and comply with its responsibilities under agreements; potential environmental existing requirements, agreements, justice issues; impact on the Waste consent orders or permits including: Isolation Pilot Plant (WIPP); and NEPA; CERCLA; RCRA; DOE Order availability of space in LLW facilities 435.1 and its implementing documents; with the addition of non-HLW. DOE also received an assortment of and Section 3116, applicable in Idaho comments not directly related to its and South Carolina. DOE will consider input from affected state, local, and interpretation. Some commenters tribal stakeholders, along with wanted DOE to expand the scope of the governing regulatory agencies. interpretation to include all radioactive NRC regulatory role. The Department waste, specifically uranium-233 waste, while others questioned the need for the fully supports the NRC in its statutory and regulatory role with respect to interpretation at all if DOE pursued the regulating commercial nuclear activities development of a deep geologic (including licensing disposal facilities), repository at Yucca Mountain for SNF as well as its historical and established and HLW disposal. Information needs. The questions and consultative role to DOE on the disposal of its reprocessing wastes determined to issues raised by commenters seeking tank reprocessing wastes as non-HLW and disposing of it in place. Commenters believed the interpretation is unreasonable in its application to tank wastes, based on the concern that tank waste from reprocessing is highly radioactive as a matter of fact and, additionally, that this interpretation should not be applied to close tanks without retrieving wastes. As noted previously and reiterated below, this Supplemental Notice does not propose or finalize any decisions about the classification or disposal of any waste stream, or this interpretation’s potential application to the closure of waste tanks. DOE understands the complex history and practice with regard to tank closure activities, and existing arrangements that may affect implementation. In this case as with its other wastes, DOE will pursue any waste classification or disposal decisions in separate actions, in accordance with applicable law, regulations and agreements, and based on appropriate interactions with affected stakeholders and regulators. PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\10JNN1.SGM 10JNN1 26846 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices not be HLW under DOE Order 435.1. DOE’s interpretation does not change the NRC’s existing authorities, e.g., under Section 3116. DOE intends to maintain its strong relationship with the NRC, and will engage with the NRC on the best way to continue that relationship when and as it applies its HLW interpretation in the future. Environmental Justice. Some commenters were concerned that DOE’s interpretation violates the principles of environmental justice, specifically the impact on Native American nations and impacts on tribal lands from DOE’s radioactive waste management and disposal decisions. DOE is committed to the principles of a government-togovernment relationship with tribal populations as embodied in Executive Order (E.O.) 13175 and DOE’s Order 144.1, as well as the 2010 United States’ announcement supporting the United Nations Declaration of the Rights of Indigenous People. DOE also remains committed to build on the legacy of E.O. 12898 and the principles of environmental justice. In this and other applicable contexts, DOE will continue to work with all stakeholders, including interested tribal organizations and minority and low-income populations to ensure their interests are taken into account, consistent with environmental justice principles and applicable NEPA processes. WIPP. All transuranic waste generated from atomic energy defense activities to be disposed of at WIPP must comply with the WIPP Land Withdrawal Act, as amended, the WIPP Hazardous Waste Facility Permit, the WIPP waste acceptance criteria, and other applicable requirements. Currently, any reprocessing waste that may be determined to be non-HLW could not be disposed of at WIPP because the WIPP permit specifically prohibits tank waste from disposal at WIPP. Disposal capacity. DOE believes that the available commercial LLW disposal capacity will be adequate to accommodate its wastes, as well as those from the commercial sector. The Waste Control Specialists (WCS) Federal Waste Facility accepts DOE Class A, B or C LLW. EnergySolutions in Utah (Clive) receives commercial and DOE Class A LLW.7 These facilities have several million cubic meters of disposal capacity, with the possibility of increased capacity if license amendments are approved, that can be used for DOE’s eligible radioactive wastes. DOE will continue to evaluate LLW disposal capabilities and available capacity. Other waste types. The scope of the HLW interpretation is reprocessing waste; it does not and would not appropriately address other waste types that are not from reprocessing of SNF, such as: The greater-than-Class C (GTCC) LLW inventory included in the Final Environmental Impact Statement for the Disposal of Greater-Than-Class C Low-Level Radioactive Waste and GTCC-Like Waste, and also discussed in the recently issued Environmental Assessment (EA) for the Disposal of Greater-Than-Class C (GTCC) Low-Level Radioactive Waste and GTCC-Like Waste at Waste Control Specialist in Andrews County, Texas; and uranium233 waste. Yucca Mountain. At least one commenter opined that DOE could obviate the need for the HLW interpretation if, instead, the Department pursued the development of a deep geologic repository at Yucca Mountain for SNF and HLW. Pursuit of a deep geologic repository at Yucca Mountain and DOE’s HLW interpretation are not mutually exclusive efforts, and DOE believes it is necessary and appropriate to pursue both. DOE agrees that Yucca Mountain is the only site that can legally be considered for the disposal of HLW, and the Administration has requested funding from Congress to restart the Yucca Mountain licensing proceeding. The Department’s interpretation of what is not HLW does not affect the need for, or the Department’s commitment to a deep geologic repository at Yucca Mountain for the disposal of HLW. IV. Conclusion The Department bases its interpretation of the statutory term HLW on the statutory text and purpose. DOE’s interpretation is consistent with and informed by its comprehensive understanding and experience in the safe and technically sound disposal of many types of radioactive wastes, including those from its legacy reprocessing activities. On this basis, the Department interprets the AEA and NWPA as establishing that not all reprocessing wastes are HLW by law, and that where wastes can be safely disposed based on the radiological characteristics of the waste, such wastes may properly be classified as non-HLW. DOE anticipates continued engagement and productive involvement of members of the public and the regulatory community in subsequent activities that may follow this HLW interpretation, including the NEPA process described in the NOI. Signed at Washington, DC, on May 30, 2019. Anne Marie White, Assistant Secretary for Environmental Management. Appendix A This Appendix provides additional detail comparing the requirements of DOE and NRC for the disposal of LLW. While there are some differences in the two systems, both are based on technical and administrative requirements that ensure an essentially identical level of public health and safety protection. SAFETY GOALS AND COMPARISON OF NRC AND DOE PERFORMANCE OBJECTIVES khammond on DSKBBV9HB2PROD with NOTICES Safety goal NRC performance objective for commercial facilities DOE performance objective/measures for DOE facilities Standard for demonstrating compliance. reasonable assurance exists that exposures to humans are within the limits established in the performance objectives . . . [10 CFR 61.40]. Protection of the General Population. Radioactive material released to the general environment in groundwater, surface water, air, soil, plants, or animals must not result in a dose to the whole body of in excess of 25 mrem annually. [10 CFR 61.41]. reasonable expectation that the performance objectives identified in this Chapter are not exceeded as a result of operation and closure of the facility. [DOE Manual 435.1–1 Ch. IV P(1)]. Dose to a representative member of the public shall not exceed 25 mrem annually from all exposure pathways excluding the dose from radon and its progeny in air. [DOE Manual 435.1–1 Ch. IV P(1)(a)]. 7 There are two additional licensed LLW disposal facilities for commercial compact waste only (the VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 Barnwell, South Carolina facility and the U.S. Ecology facility near Richland, Washington). PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\10JNN1.SGM 10JNN1 Federal Register / Vol. 84, No. 111 / Monday, June 10, 2019 / Notices 26847 SAFETY GOALS AND COMPARISON OF NRC AND DOE PERFORMANCE OBJECTIVES—Continued Safety goal Protection of Individuals from Inadvertent Intrusion. Protection of individuals during operations. NRC performance objective for commercial facilities DOE performance objective/measures for DOE facilities NRC adds organ-specific objectives: No dose to the thyroid in excess of 75 mrem/year and to any other organ of any member of the public in excess of 25 mrem/year. [10 CFR 61.41]. —This cell intentionally blank— DOE adds air pathway objective: Dose to representative members of the public shall not exceed 10 mrem/year, excluding radon and its progeny. [DOE Manual 435.1–1 Ch. IV P(1)(b)]. DOE adds an objective specifically for radon: Radon release shall not exceed an average flux of 20 pCi/m2/ second at the surface of the disposal facility. Alternatively a limit of 0.5 pCi/liter of air may be applied at the facility boundary. [DOE Manual 435.1–1 Ch. IV P(1)(c)]. For purposes of establishing limits on concentration of radionuclides that may be disposed of near-surface, an analysis of inadvertent human intrusion shall use performance measures for chronic and acute exposure scenarios of 100 mrem in a year and 500 mrem total effective dose equivalent, excluding radon. [DOE Manual 435.1–1 Ch. IV P(2)(h)]. Design, operation, and closure of the land disposal facility must ensure protection of any individual inadvertently intruding into the disposal site and occupying the site or contacting the waste at any time after active institutional controls over the disposal site are removed. [10 CFR 61.42] While a quantitative limit is not specified, 10 CFR 61 Final EIS suggests dose limit of 500 mrem/year [NUREG–0945, NUREG–1854]. Operations at the land disposal facility must be conducted in compliance with radiation protection standards set out in 10 CFR part 20 except for releases of radioactivity in effluents from the land disposal facility, which shall be governed by 10 CFR 61.41. [10 CFR 61.43]. Worker dose shall not exceed 5 rem/ year (10 CFR 20.1201) and public dose shall not exceed 100 mrem/year (10 CFR 20.1301). Stability of Disposal Facility The disposal facility must be sited, designed, used, operated, and closed to achieve long-term stability of the disposal site and to eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure so that only surveillance, monitoring, or minor custodial care are required. [10 CFR 61.44]. Composite Analysis of Impacts of All Sources of Radioactive Material at a DOE site. —This cell intentionally blank— [FR Doc. 2019–12116 Filed 6–7–19; 8:45 am] BILLING CODE 6450–01–P DEPARTMENT OF ENERGY Environmental Assessment for the Commercial Disposal of Defense Waste Processing Facility Recycle Wastewater From the Savannah River Site Office of Environmental Management, U.S. Department of Energy. ACTION: Notice. khammond on DSKBBV9HB2PROD with NOTICES AGENCY: VerDate Sep<11>2014 16:45 Jun 07, 2019 Jkt 247001 River Site (SRS) at a commercial lowlevel radioactive waste (LLW) disposal facility located outside of South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State. This effort will analyze capabilities for alternative treatment and disposal options through the use of existing, permitted, off-site commercial treatment and disposal facilities. This Federal Register Notice (Notice) is available on https:// www.energy.gov/em/high-levelradioactive-waste-hlw-interpretation. The Draft EA will also be made available at this website. ADDRESSES: The U.S. Department of Energy (DOE) announces its intent to prepare an environmental assessment (EA) pursuant to the National Environmental Policy Act of 1969 (NEPA) to dispose of up to 10,000 gallons of stabilized (grouted) Defense Waste Processing Facility (DWPF) recycle wastewater from the Savannah SUMMARY: Facilities, operations, and activities shall meet the requirements of 10 CFR part 835 and DOE Order 5400.5 (superseded by Order 458.1) for establishing acceptable dose rates to workers and the public. [DOE Manual 435.1–1 Ch. I 1.E(13)]. Worker dose shall not exceed 5 rem/year (10 CFR 835.202), public dose in controlled area shall not exceed 100 mrem/year (10 CFR 835.208); and public does shall not exceed 25 mrem/year (DOE Order 458.1, Section 4.h(1)). Disposal Facility Closure Plans, includes a description of how the disposal facility will be closed to achieve long-term stability and minimize the need for active maintenance following closure and to ensure compliance with the requirements of DOE Order 5400.5, Radiation Protection of the Public and the Environment. (superseded by Order 458.1) [DOE Manual 435.1–1 Ch. IV Q(1)(b) and Ch. IV M]. Dose at point of compliance from all interacting sources does not exceed 30 mrem per year. [DOE Standard 5002–2017, Section 3.2.1.]. FOR FURTHER INFORMATION CONTACT: James Joyce, U.S. Department of Energy, Office of Environmental Management, Office of Waste and Materials Management (EM–4.2), 1000 Independence Avenue SW, Washington, PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 DC 20585. Telephone: (301) 903–2151. Email: James.Joyce@em.doe.gov. The DWPF recycle wastewater would be treated, characterized, and if the performance objectives and waste acceptance criteria of a specific disposal facility are met, DOE could consider whether to dispose of the waste as LLW under the Department’s high-level radioactive waste (HLW) interpretation published elsewhere in this issue of the Federal Register. As DOE explained in the Supplemental Notice, the HLW interpretation does not change or revise any current policies or other legal requirements with respect to HLW. As a result of this NEPA process, DOE may consider what actions, if any, are needed and appropriate to implement any decision to dispose of the DWPF recycle wastewater as LLW. SUPPLEMENTARY INFORMATION: E:\FR\FM\10JNN1.SGM 10JNN1

Agencies

[Federal Register Volume 84, Number 111 (Monday, June 10, 2019)]
[Notices]
[Pages 26835-26847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12116]


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DEPARTMENT OF ENERGY


Supplemental Notice Concerning U.S. Department of Energy 
Interpretation of High-Level Radioactive Waste

AGENCY: Office of Environmental Management, U.S. Department of Energy.

ACTION: Notice.

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SUMMARY: In this Supplemental Notice, the U.S. Department of Energy 
(Department or DOE) supplements and updates its 2018 Request for Public 
Comment on the U.S. Department of Energy Interpretation of High-Level 
Radioactive Waste, published in the Federal Register on October 10, 
2018 (October 10 Notice), concerning its interpretation of the 
statutory term ``high-level radioactive waste'' (HLW) as defined in the 
Atomic Energy Act of 1954, as amended, and the Nuclear Waste Policy Act 
of 1982, as amended.

ADDRESSES: This Federal Register Notice (Notice) is available on the 
Department's website at: https://www.energy.gov/em/high-level-radioactive-waste-hlw-interpretation.

FOR FURTHER INFORMATION CONTACT: James Joyce, U.S. Department of 
Energy, Office of Environmental Management, Office of Waste and 
Materials Management (EM-4.2), 1000 Independence Avenue SW, Washington, 
DC 20585. Telephone: (301) 903-2151. Email: [email protected].

SUPPLEMENTARY INFORMATION: As DOE stated in the October 10 Notice and 
as this Supplemental Notice reiterates, DOE interprets this statutory 
term to mean that not all wastes from the reprocessing of spent nuclear 
fuel (reprocessing wastes) are HLW. DOE interprets the statutory term 
such that some reprocessing wastes may be classified as not HLW (non-
HLW) and may be disposed of in accordance with their radiological 
characteristics. This Supplemental Notice provides additional 
explanation of DOE's interpretation as informed by public review and 
comment and further consideration by DOE following the October 10 
Notice. DOE has not made, and does not presently propose, any changes 
or revisions to current policies, legal requirements or agreements with 
respect to HLW. Decisions about whether and how this interpretation of 
HLW will apply to existing wastes and whether such wastes may be 
managed as non-HLW will be the subject of subsequent actions.

I. Background

    The Department sought public comments on its HLW interpretation 
through its Request for Public Comment on the U.S. Department of Energy 
Interpretation of High-Level Radioactive Waste, 83 FR 50909 (October 
10, 2018). The 90-day public comment period, including a 30-day 
extension to submit comments, invited public input in order to better 
understand stakeholder perspectives, and sought to increase 
transparency and enhance public understanding of DOE's views of its 
legal authority. DOE received a total of 5,555 comments, roughly 360 of 
which were distinct, unrepeated comments, from a variety of 
stakeholders: Members of the public, Native American tribes, members of 
Congress, numerous state and local governments, and one federal agency, 
the Nuclear Regulatory Commission (NRC).
    All input is important to the process and all comments were 
carefully and fully considered by DOE. DOE is issuing this Supplemental 
Notice to provide the public additional information about its HLW 
interpretation, informed by public comments. This interpretation does 
not change or revise any current policies, legal requirements, or 
agreements with respect to HLW. Decisions about whether and how this 
interpretation of HLW will apply to existing wastes and whether such 
wastes may be managed as non-HLW will be the subject of subsequent 
actions. The following

[[Page 26836]]

sections of this Supplemental Notice describe the Department's HLW 
interpretation, and provide summary responses to significant and 
recurring comments received through the public comment process.
    As a first step in determining whether and how to implement this 
HLW interpretation specific to a particular waste stream, DOE is 
initiating a public process under the National Environmental Policy Act 
(NEPA) to analyze the potential environmental impacts associated with 
disposing of certain waste from the Savannah River Site at a commercial 
disposal facility outside South Carolina licensed by either the Nuclear 
Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 
to receive low-level radioactive waste. This NEPA process is explained 
further in a separate Notice, Environmental Assessment for the 
Commercial Disposal of Defense Waste Processing Facility Recycle 
Wastewater from the Savannah River Site (NOI) that was submitted 
concurrently with this Supplemental Notice for publication in the 
Federal Register. At this time, DOE is not considering whether to 
implement the HLW interpretation at any other site or for any other 
waste stream. While DOE will continue in the normal course to evaluate 
its waste inventories and related management and disposal options, and 
expects to engage openly with stakeholders regarding potential future 
opportunities to implement the HLW interpretation more broadly, any 
decisions about whether and how the interpretation will apply to other 
wastes at any specific site will be the subject of subsequent actions.

II. Summary Description

    In this Supplemental Notice, DOE explains its interpretation of the 
term HLW, as defined in the Atomic Energy Act of 1954, as amended (AEA, 
42 U.S.C. 2011 et seq.) and the Nuclear Waste Policy Act of 1982, as 
amended (NWPA, 42 U.S.C. 10101 et seq.). DOE has the long-standing 
authority and responsibility under the AEA to ensure that all 
radioactive waste from the United States' defense program--including 
reprocessing waste--is managed and disposed of in a safe manner. The 
AEA and NWPA define HLW as:

    (A) the highly radioactive material resulting from the 
reprocessing of spent nuclear fuel, including liquid waste produced 
directly in reprocessing and any solid material derived from such 
liquid waste that contains fission products in sufficient 
concentrations; and
    (B) other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.

    42 U.S.C. 10101(12); see 42 U.S.C. 2014(dd). This definition of HLW 
makes clear that not all radioactive wastes from nuclear fuel 
reprocessing are HLW. DOE has the legal authority to interpret the term 
HLW in these statutes to determine that certain of its reprocessing 
wastes are not HLW based on their radiological characteristics. 
Accordingly, DOE interprets those statutes to provide that reprocessing 
wastes are properly classified as non-HLW where the radiological 
characteristics of the waste in combination with appropriate disposal 
facility requirements for safe disposal demonstrate that disposal of 
such waste is fully protective of human health and the environment.
    DOE has revised the interpretation stated in its October 10 Notice 
after consideration of public comments, in particular those of the NRC 
and affected state and local stakeholders, in order to clarify its 
meaning and import. Based on those comments, DOE interprets the 
statutes to provide that a reprocessing waste may be determined to be 
non-HLW if the waste meets either of the following two criteria:

    (I) does not exceed concentration limits for Class C low-level 
radioactive waste as set out in section 61.55 of title 10, Code of 
Federal Regulations, and meets the performance objectives of a 
disposal facility; or
    (II) does not require disposal in a deep geologic repository and 
meets the performance objectives of a disposal facility as 
demonstrated through a performance assessment conducted in 
accordance with applicable requirements.

    Performance objectives are the quantitative radiological standards 
set by the NRC or DOE to ensure protection of the health and safety of 
individuals and the environment during operation, and after permanent 
closure of the disposal facility. The technical means to demonstrate 
compliance with performance objectives are through a modeling and 
analytical tool commonly referred to as a performance assessment. Safe 
disposal also entails compliance with other facility requirements, such 
as waste acceptance criteria--the technical and administrative 
requirements associated with waste acceptance, including but not 
limited to: Allowable radionuclide content; waste form and packaging; 
and required waste generator certifications and approvals. Reprocessing 
waste meeting either I or II of the above criteria is non-HLW, and--
pursuant to appropriate processes--may be classified and disposed in 
accordance with its radiological characteristics in an appropriate 
facility provided all applicable requirements of the disposal facility 
are met.
    As noted, additional, subsequent DOE action is required before the 
interpretation in this Supplemental Notice can be implemented. This 
Supplemental Notice, therefore, does not alter the Department's current 
management of reprocessing waste for any specific waste stream. Each 
reprocessing waste stream has unique radiological characteristics and, 
accordingly, the interpretation will be implemented in subsequent 
actions on a site-specific basis, following consideration of: 
Evaluation and characterization of specific reprocessing waste streams 
in conjunction with the waste acceptance criteria and requirements of a 
specific waste disposal facility; input from affected stakeholders 
(e.g., federal, state, local and tribal officials; and members of the 
public); and compliance with applicable federal and state laws, 
regulations, and agreements. This interpretation does not, and will not 
be used to, abrogate DOE's responsibilities under existing laws, 
regulations, agreements, or permit requirements. Nor does it change 
DOE's existing statutory authorities or those of its regulators at the 
federal, state, or local level. DOE anticipates continued engagement 
and productive involvement of members of the public and the regulatory 
community in subsequent activities that may follow this HLW 
interpretation, including the NEPA process described in the NOI.

III. Response to Comments

    DOE received 5,555 comments on its proposed interpretation that 
break down to roughly 360 distinct comments (that is, excluding 
duplicative form comments). DOE received both critical and supportive 
comments, with the majority of comments expressing concerns or 
questions relating to health and safety and environmental outcomes 
associated with the interpretation. The following sections of this 
Supplemental Notice provide additional detail and explanation of DOE's 
HLW interpretation in response to the significant and recurring 
comments received. DOE is providing this additional information in 
response to comments, while recognizing that not all of this 
information is central to, or necessary for an understanding of DOE's 
interpretation. To aid in organizing the comments, this section 
categorizes public comments in broad terms relating to the legal 
authority, technical basis, implementation, and other comments on the 
HLW interpretation.

[[Page 26837]]

A. Legal Authority for HLW Interpretation

    As DOE explained in the October 10 Notice, DOE interprets the term 
``high-level radioactive waste,'' as stated in the AEA and the NWPA, in 
a manner that defines DOE reprocessing wastes to be classified as 
either HLW or non-HLW based on the radiological characteristics of the 
waste and whether the waste can be disposed of safely in a facility 
other than a deep geologic repository. Having fully considered all 
comments received, DOE continues to believe that the HLW interpretation 
is legally sound, technically appropriate, and fully protective of 
human health and the environment.
    DOE's purpose in issuing the interpretation in the form of an 
interpretative rule within the meaning of section 553(b) of the 
Administrative Procedure Act (APA, 5 U.S.C. 553(b)) is to provide the 
public with a clear and transparent explanation of DOE's view of a 
specific legal question--the meaning of the term HLW, including the 
authority that Congress conferred on DOE through that term. DOE's 
interpretation is, however, only one factor in initiating a broader 
process of identifying potential options for disposing of reprocessing 
wastes that are determined to not require disposal in a deep geologic 
repository. DOE will continue its current practice of managing all its 
reprocessing wastes as if they were HLW unless and until a specific 
waste is determined to be another category of waste based on detailed 
technical assessments of its characteristics and an evaluation of 
potential disposal pathways.
1. DOE Authorities
    Consistent with its long-standing authority under the AEA to ensure 
that radioactive waste from the United States' defense program is 
managed and disposed of in a safe manner, DOE has the legal authority 
to interpret the term HLW in the AEA and the NWPA to determine that 
certain of its reprocessing wastes are not HLW based on their 
radiological characteristics. This interpretation is consistent with 
the AEA, the NWPA, and Section 3116 of the 2005 Ronald Reagan National 
Defense Authorization Act (Section 3116, Pub. L. 108-375).
    The significance of ``highly radioactive.'' Commenters stated that 
under the NWPA DOE lacks the legal authority to determine that certain 
reprocessing wastes are non-HLW based on their radiological 
characteristics because Congress defined HLW based only on its source. 
The plain language of the HLW definition contradicts this exclusively 
``source-based'' interpretation.
    The AEA and NWPA define HLW as:

    (A) the highly radioactive material resulting from the 
reprocessing of spent nuclear fuel, including liquid waste produced 
directly in reprocessing and any solid material derived from such 
liquid waste that contains fission products in sufficient 
concentrations; and
    (B) other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.

42 U.S.C. 10101(12); see also 42 U.S.C. 2014(dd). In Paragraph A, 
Congress limited HLW to those materials that are ``highly 
radioactive.'' This limiting term applies to all reprocessing waste, 
including the ``liquid waste produced directly in reprocessing'' and 
``any solid material derived from such liquid waste.'' The use of the 
limiting term ``highly radioactive'' demonstrates that Congress 
intended to distinguish between waste that is ``highly radioactive'' 
and waste that is not. If Congress had intended to define all 
reprocessing waste as HLW regardless of its radiological 
characteristics, it would not have included the ``highly radioactive'' 
requirement and instead defined HLW as ``all waste material resulting 
from the reprocessing of spent nuclear fuel.'' Similarly, for ``any 
solid material derived from'' the ``liquid waste produced directly in 
reprocessing,'' Congress also specified that in addition to being 
``highly radioactive'' it must also contain fission products in 
``sufficient concentrations.''
    The terms ``highly radioactive'' and ``sufficient concentrations'' 
are not defined in the AEA or the NWPA. By providing in Paragraph A 
that liquid reprocessing waste is HLW only if it is ``highly 
radioactive,'' and that solid material derived from liquid reprocessing 
waste is HLW only if it is ``highly radioactive'' and contains fission 
products in ``sufficient concentrations'' without further defining 
these standards, Congress left it to DOE, for its reprocessing wastes, 
to determine when the standards are met. That is what DOE has done 
through its interpretation. DOE has evaluated the meaning of those 
terms based on its historical knowledge, experience, and expertise in 
managing reprocessing wastes. DOE's interpretation is an articulation 
of the technical criteria that can be applied to individual waste 
streams on a case-by-case basis to determine whether the standard for 
HLW has been met. DOE also notes that in their comments on the 
interpretation, the NRC staff stated that they ``agree with the concept 
proposed in Federal Register October 10 Notice (83 FR 50909) that 
radioactive waste may be classified and disposed of in accordance with 
its radiological characteristics.'' DOE places significant weight on 
the NRC's views of matters relating to the safe management and disposal 
of radioactive waste, including this HLW interpretation.
    Distinguishing between HLW and non-HLW based on the need for 
disposal in a deep geologic repository. Commenters stated that DOE's 
interpretation is circular, and that there is no basis for the 
interpretation that if waste does not require disposal in a deep 
geologic repository then it is not HLW. DOE disagrees. DOE's 
interpretation is consistent with the statutory text, the underlying 
purposes of the AEA and the NWPA, and the well-established principles 
of the NRC's regulatory structure for the disposal of low-level 
radioactive wastes (LLW).
    As discussed above, without further defining the terms ``highly 
radioactive'' and ``sufficient concentrations,'' Congress left it to 
DOE to determine when reprocessing waste meets the standards. The 
statutory context is fundamental to determining the meaning of the 
terms ``highly radioactive'' and ``sufficient concentrations.'' Through 
the AEA Congress conferred on DOE the responsibility to ``provide for 
safe storage, processing, transportation, and disposal of'' 
reprocessing and other radioactive wastes resulting from the United 
States' defense program. See 42 U.S.C. 2121(a)(3), 5814, 7151(a). DOE's 
primary objective in fulfilling this statutory responsibility is to 
manage and dispose of radioactive waste in a manner that fully protects 
the public and the environment from the hazards posed by the waste. 
Similarly, a primary purpose of the NWPA is to identify those materials 
for which disposal in a deep geologic repository is the only method 
that would provide reasonable assurance that the public and the 
environment will be adequately protected from the radiological hazards 
the materials pose. See 42 U.S.C. 10131(b); 10101(12), (18). As the NRC 
has explained,

    Th[e] combination of highly-concentrated, short-lived nuclides 
together with other very long-lived nuclides has historically been 
described by the term `high-level radioactive wastes' (HLW). There 
has long been a recognition that such waste materials require long- 
term isolation from man's biological environment . . .

Advance Notice of Proposed Rulemaking, Definition of High-Level 
Radioactive Waste, 52 FR 5992, 5993

[[Page 26838]]

(February 27, 1987). Deep geologic disposal is the internationally 
recognized and technically viable means to provide such long-term 
isolation for waste with both highly concentrated short-lived 
radionuclides and long-lived radionuclides. However, not all 
radioactive wastes have these properties, and therefore do not require 
the same disposal methods. Because not all radioactive wastes have the 
same radiological characteristics, there is a well-established 
statutory and regulatory regime for the safe and technically sound 
disposal of radioactive waste commensurate with the radiological hazard 
posed by the waste. Consequently, determining whether a particular 
reprocessing waste can be disposed of safely in a facility other than a 
deep geologic repository is the appropriate basis for differentiating 
between waste that is ``highly radioactive'' and waste that is not, 
and, for solid material, waste that contains fission products in 
``sufficient concentrations'' and waste that does not.
    In its regulations, the NRC has identified classes of LLW--Class A, 
B, or C--for which near-surface disposal is safe for public health and 
the environment. Waste that exceeds the Class C tables in 10 CFR 61.55 
also may be safely disposed in a near-surface disposal facility under 
certain conditions. This waste classification regime is based on the 
concentration levels of a combination of specified short-lived and 
long-lived radionuclides in a waste stream, with Class C LLW having the 
highest concentration levels. In accordance with NRC regulations, 10 
CFR 61.55(a)(2)(iv) and 10 CFR 61.58, waste that exceeds the Class C 
levels is evaluated on a case-specific basis to determine whether it 
requires disposal in a deep geologic repository, or whether an 
alternative disposal facility can be demonstrated to provide safe 
disposal.
    Non-HLW Criterion 1. Because the NRC has long-standing regulations 
that set concentration limits for radionuclides in waste that is 
acceptable for near-surface disposal, it is reasonable to interpret 
``highly radioactive'' to mean, at a minimum, radionuclide 
concentrations greater than the Class C limits. Waste that is at or 
below Class C limits does not have ``highly radioactive'' radionuclide 
concentrations because it can be, and routinely is, safely disposed in 
near-surface facilities that are proven to be protective of human 
health and the environment. In other words, because waste within Class 
C limits clearly does not require disposal in a deep geologic 
repository, it is not ``highly radioactive'' within the meaning of the 
HLW definition, and therefore, non-HLW.
    Non-HLW Criterion 2. As stated above, solid material derived from 
liquid reprocessing waste is HLW only if it is ``highly radioactive'' 
and contains fission products in ``sufficient concentrations.'' Where 
solid material derived from liquid reprocessing waste exceeds the Class 
C limits (and could, therefore, be considered ``highly radioactive''), 
it is appropriate to analyze also whether the waste contains 
``sufficient concentrations'' of fission products in combination with 
long-lived radionuclides such that disposal in a deep geologic 
repository is necessary. As previously articulated, not all radioactive 
wastes are the same or require the same disposal methods. Only those 
wastes that have the characteristics of both high concentrations of 
short-lived radionuclides and long-lived radionuclides bear the 
hallmarks of a radioactive waste that is necessary for deep geologic 
disposal. Other disposal facilities may be capable of accepting the 
waste in compliance with the performance objectives of the facility, 
which means that the public and the environment can be effectively 
protected from harmful effects by safely disposing the waste in such a 
facility. Under DOE's interpretation, where solid material exceeds the 
NRC's Class C limits, such material can still be classified as non-HLW 
if technical analysis of the radiological characteristics of the waste 
demonstrates that it can be safely disposed in a facility other than a 
deep geologic repository. That is, analysis must show that a given 
waste can be safely disposed, considering the physical characteristics 
of a specific (non-geologic repository) disposal facility and a method 
of disposal compliant with the facility's performance objectives.
    DOE and NRC authority under Paragraphs A and B of the HLW 
definition. Commenters stated that through its interpretation DOE is 
improperly attempting to assign to itself under Paragraph A of the HLW 
definition the authority that Congress assigned to the NRC. That is 
incorrect. The authority granted to the NRC in Paragraph B reflects 
Congress' intent for the NRC potentially to define other ``highly 
radioactive materials'' as HLW. DOE recognizes the NRC's authority on 
this point. DOE does not, however, agree with the commenters that by 
granting NRC, and not DOE, the authority to define non-reprocessing 
wastes as HLW, Congress explicitly or implicitly deprived DOE of its 
long-standing AEA authority to interpret this statutory term as it 
pertains to DOE reprocessing wastes. DOE manages a large inventory of 
legacy reprocessing waste from atomic energy defense activities, e.g., 
nuclear weapons production. The structure of the HLW definition simply 
reflects Congress' recognition of the respective roles that each agency 
has played under the AEA since the responsibilities of the Atomic 
Energy Commission (AEC) were divided between DOE and the NRC in 1974.
    The AEA vested in the AEC the exclusive responsibility to regulate 
the materials covered by the Act. See 42 U.S.C. 2201(b). With regard to 
the United States' defense program, the AEA expressly provided the AEC 
the authority to ``provide for safe storage, processing, 
transportation, and disposal of hazardous waste (including radioactive 
waste) resulting from nuclear materials production, weapons production 
and surveillance programs, and naval nuclear propulsion programs.'' 42 
U.S.C. 2121(a)(3).
    In 1974, Congress enacted the Energy Reorganization Act of 1974 
(ERA), 88 Stat. 1233, as amended, 42 U.S.C. 5801 et seq., which 
abolished the AEC and divided its functions between DOE's predecessor, 
the Energy Research and Development Administration (ERDA), and the NRC. 
See ERA, Sections 104, 201(f), Public Law 93-438, 88 Stat. 1233, 1237-
38, 1242-44, 42 U.S.C. 5814, 5841(f). Under the ERA, the NRC was 
assigned responsibility for commercial licensing of nuclear power 
plants and related regulatory functions. 42 U.S.C. 5841(f). The NRC 
also acquired licensing authority over ERDA facilities in limited 
circumstances, including ``[f]acilities used primarily for the receipt 
and storage of high-level radioactive wastes resulting from activities 
licensed under such Act'' and ``facilities authorized for the express 
purpose of subsequent long-term storage of high-level waste generated 
by the Administration, which are not used for, or are part of, research 
and development activities.'' 42 U.S.C. 5842.
    The ERDA was assigned all other AEC functions, including its 
weapons production and defense waste management authority. 42 U.S.C. 
5814(c). The ERA also authorized the ERDA Administrator to ``prescribe 
such policies, standards, criteria, procedures, rules, and regulations 
as he may deem to be necessary or appropriate to perform functions now 
or hereafter vested in him.'' 42 U.S.C. 5815(a). In 1977, Congress 
abolished the ERDA and transferred its functions to DOE. See Department 
of Energy Organization Act

[[Page 26839]]

(DOEOA) Section 301(a), Public Law 95-91, 91 Stat. 565, 577-78 (1977), 
42 U.S.C. 7151(a). Among other things, the DOEOA specifically assigned 
responsibility for the military applications of nuclear energy to DOE. 
Additionally, the DOEOA made clear that DOE retained all of ERDA's 
radioactive waste management responsibilities and authorities 
including: (1) Control over existing Government facilities for the 
treatment and storage of nuclear wastes, including all containers, 
casks, buildings, vehicles, equipment, and other materials associated 
with such facilities; (2) control over all existing nuclear waste in 
the possession or control of the Government; (3) the establishment of 
temporary and permanent facilities for storage, management, and 
ultimate disposal of nuclear wastes; and (4) the establishment of 
programs for the treatment, management, storage, and disposal of 
nuclear wastes. See 42 U.S.C. 7133(a)(8)(A), (B), (C), and (E). ``This 
left control over existing government facilities and defense nuclear 
waste in DOE.'' NRDC v. Abraham, 244 F.3d 742, 745 (9th Cir. 2001).
    Accordingly, it is well within DOE's authority and responsibility 
to interpret Paragraph A of the HLW definition to determine whether 
reprocessing wastes within the DOE complex meet the technical criteria 
of ``highly radioactive'' and ``sufficient concentrations.'' Paragraph 
B, on the other hand, is a different type of function granted to NRC. 
The authority to define other ``highly radioactive materials'' that 
require permanent isolation is consistent with the NRC's licensing and 
regulatory role under the AEA and NWPA. In assigning NRC this 
authority, however, Congress did not change DOE authority under the AEA 
to interpret this statutory term to ensure it is safely storing, 
managing, and disposing of its radioactive wastes in accordance with 
applicable law.
    Notwithstanding the clear division of responsibilities, DOE and the 
NRC have historically worked closely together on various issues 
relating to the safe management and disposal of radioactive waste, 
including HLW. As stated above, DOE places significant weight on the 
NRC staff's agreement with the concept in DOE's interpretation that 
HLW, like other radioactive waste, may be disposed of in accordance 
with its radiological characteristics.
    HLW interpretation and Section 3116. Commenters stated that DOE's 
interpretation is inconsistent with Section 3116. DOE disagrees. The 
HLW interpretation does not impact DOE's intent and obligation to 
comply fully with Section 3116. In addition, Section 3116 does not 
limit DOE's long-standing authority under the AEA to interpret the 
definition of HLW or to apply that interpretation to reprocessing 
wastes that are not covered by Section 3116.
    Section 3116 sets forth a process for determining that specified 
DOE reprocessing waste is not HLW. This Section 3116 process is similar 
to the process in DOE's Order 435.1, Radioactive Waste Management, the 
accompanying DOE Manual 435.1-1, Radioactive Waste Management Manual, 
(Manual), and the accompanying DOE Guide 435.1-1, Implementation Guide 
for use with DOE M 435.1-1 (Implementation Guide) for determining 
whether certain reprocessing wastes are ``wastes incidental to 
reprocessing,'' or WIR. See Public Law 108-375, 2004, Section 3116(a). 
Section 3116 applies to two ``covered States''--South Carolina and 
Idaho. Id. Section 3116(d). However, Section 3116 does not apply to 
reprocessing wastes that are transported out of South Carolina or Idaho 
and disposed of in a different state. See id. Section 3116(c). Section 
3116 also specifies that ``nothing in this section establishes any 
precedent or is binding'' outside of South Carolina and Idaho. Id. 
Section 3116(e). In short, in enacting Section 3116, Congress did not 
limit DOE's long-standing authority under the AEA to interpret the term 
HLW or to apply this interpretation to reprocessing wastes that are 
disposed of in states other than Idaho and South Carolina.
2. DOE's Explanation of Its HLW Interpretation
    Commenters stated that the HLW interpretation represents a change 
in DOE's existing policy for determining whether reprocessing waste is 
HLW, and that DOE did not adequately explain the basis for that change. 
Some commenters also stated that DOE should update its existing 
authorities to be consistent with the HLW interpretation. Other 
commenters stated that the HLW interpretation is unnecessary in light 
of DOE's existing mechanisms for determining whether reprocessing waste 
is HLW.
    As noted above, through this Supplemental Notice DOE is only 
stating its understanding of the proper interpretation of the statutory 
text in light of the language and purpose of the two Acts, which is 
also consistent with Congress's direction and the expert community's 
consensus, while remaining fully protective of the health and welfare 
of the public and the environment. This interpretation does not, by 
itself, change existing applicable DOE regulations, orders, or policies 
regarding the classification of wastes or the treatment of any 
particular waste stream. Implementation of this interpretation at a 
particular site or for a particular waste stream, and any changes to 
existing policies that may be appropriate in light of this 
interpretation will be the subject of subsequent actions.
    DOE acknowledges, as explained below, that the HLW interpretation 
in this Supplemental Notice differs from the existing WIR evaluation 
method under DOE Order 435.1 for determining whether reprocessing waste 
is HLW or WIR that is set forth in the Manual and Implementation Guide. 
DOE disagrees, however, that the HLW interpretation is unnecessary in 
light of the existing DOE Order 435.1 WIR evaluation method. DOE 
believes in light of further consideration that the HLW interpretation 
is the proper reading of the statutory definitions of that term, 
informed by DOE's expert understanding of the risks presented to the 
public and the environment by different types of reprocessing wastes. 
As explained elsewhere in this Supplemental Notice, hereafter DOE will 
consider what actions may be needed and appropriate to update 
applicable DOE directives in light of this interpretation and will, as 
part of that process, assess whether any additional elements of its 
current policies should be amended. Accordingly, any changes in policy, 
including revisions to DOE Order 435.1, related documents, or the WIR 
process and its application, will be addressed in future actions.
    DOE Order 435.1 and WIR. Covering a broad range of topics, DOE 
Order 435.1 defines how DOE--through its programs and contractors--
implements its AEA authority to manage radioactive waste at DOE-owned 
or leased facilities. The Order is intended to ensure that waste 
characterization, treatment, disposal, and environmental monitoring 
activities are conducted in a manner that protects the public, workers, 
and the environment from exposures to doses of radiation in excess of 
specified standards. DOE Order 435.1(4.b.). The Manual sets forth in 
more detail the requirements and responsibilities for managing waste 
under the Order. The Implementation Guide discusses acceptable methods 
for meeting the requirements of the Order and Manual.
    DOE Order 435.1 breaks down DOE's waste management activities by 
waste type including HLW, transuranic (TRU) waste, and LLW. With regard 
to HLW, the Manual also formalizes the long-

[[Page 26840]]

standing concept that ``WIR'' is not HLW because its radioactive 
characteristics do not pose the elevated risk to human health and the 
environment that HLW poses. According to the Manual, ``waste resulting 
from reprocessing spent nuclear fuel that is determined to be 
incidental to reprocessing is not high-level waste, and shall be 
managed as [TRU] or [LLW], as appropriate.'' Manual at II.B.\1\
---------------------------------------------------------------------------

    \1\ The Manual sets forth two processes for determining that 
waste is WIR, not HLW. First, under the ``citation method,'' a 
limited number of secondary solid waste items that fall on a 
precompiled list are excluded from HLW, including ``laboratory items 
such as clothing, tools, and equipment.'' Second, the ``evaluation 
method'' includes a consideration of the risk-related 
characteristics of the waste (435.1 WIR Criteria).
---------------------------------------------------------------------------

    The 435.1 WIR Criteria provide that wastes being managed as HLW can 
be determined to be WIR, e.g., managed as LLW,\2\ where they meet the 
following criteria (DOE M 435.1-1, Chapter II-B(2)(a), page II-1,2):
---------------------------------------------------------------------------

    \2\ Under the WIR process, certain reprocessing wastes may also 
be managed as TRU waste, in accordance with DOE M 435.1-1, Chapter 
II-B(2)(b), page II-2.

    (1) Have been processed, or will be processed, to remove key 
radionuclides to the maximum extent that is technically and 
economically practical;
    (2) Will be managed to meet safety requirements comparable to 
the performance objectives set out in 10 CFR part 61, subpart C, 
Performance Objectives; and
    (3) Are to be managed, pursuant to DOE's authority under the 
Atomic Energy Act of 1954, as amended, and in accordance with the 
provisions of Chapter IV of this Manual, provided the waste will be 
incorporated in a solid physical form at a concentration that does 
not exceed the applicable concentration limits for Class C low-level 
waste as set out in 10 CFR 61.55, Waste Classification; or will meet 
alternative requirements for waste classification and 
characterization as DOE may authorize.

    If DOE determines that waste meets the 435.1 WIR Criteria, the 
waste is not HLW and DOE manages it as LLW or TRU waste.
    The above describes the WIR process in DOE Manual 435.1-1. DOE has 
applied the 435.1 WIR Criteria in limited circumstances to determine 
that certain waste is not HLW. The 435.1 WIR Criteria would not apply 
to reprocessing waste disposed of in South Carolina or Idaho, pursuant 
to Section 3116. As previously noted, reprocessing wastes that are 
transported out of South Carolina or Idaho and disposed of in a 
different state are not covered by Section 3116.
    WIR Criteria and the HLW interpretation. While the development of 
the 435.1 WIR Criteria was an important step forward in DOE's 
management of HLW because it allows DOE in limited circumstances to 
determine that certain waste is not ``highly radioactive,'' DOE has re-
examined the statutory term HLW. At this time, however, DOE is not 
making any decisions based upon this re-examination and is not 
modifying DOE Manual 435.1-1 or the current management of existing 
wastes. DOE will address such issues as it examines future application 
to any specific waste, and such examination will occur only with 
appropriate public engagement and full compliance with other legal 
obligations such as compliance with the National Environmental Policy 
Act (NEPA, 42 U.S.C. 4321 et seq.).
    With respect to the HLW interpretation, however, nothing in the 
statutory text of the AEA or the NWPA requires that radionuclides be 
removed to the maximum extent technically and economically practical 
prior to determining whether waste is HLW. DOE's HLW interpretation is 
consistent with and informed by analysis of the risk presented to the 
public and the environment from reprocessing wastes. Reprocessing 
wastes that already meet existing regulatory requirements for safe 
disposal as LLW without any radionuclide removal do not present risks 
to the public and the environment that would necessitate their 
classification as HLW under the AEA and NWPA. Accordingly, DOE Manual 
435.1-1's requirement to remove radionuclides to the maximum extent 
technically and economically practical is not a component of DOE's HLW 
interpretation as reflected in this Supplemental Notice. However, DOE 
continues to operate under DOE Manual 435.1-1 and any change to the 
terms or applicability of that document will be the subject of 
appropriate agency action.
    Why DOE is issuing the HLW interpretation. Through the AEA, 
Congress conferred on DOE the responsibility of safely and permanently 
disposing of the radioactive waste from the United States' defense 
program, including reprocessing wastes. See 42 U.S.C. 2121(a)(3), 5814, 
7151(a). While DOE has made important progress in fulfilling this 
responsibility, there has been widespread recognition that the current 
approach to managing and disposing of these wastes has shortcomings, 
and that alternative strategies should be explored and developed.
    Most recently, in enacting the National Defense Authorization Act 
for Fiscal Year 2018 (Pub. L. 115-91), Congress specifically tasked DOE 
with ``conduct[ing] an evaluation of the feasibility, costs, and cost 
savings of classifying covered defense nuclear waste as other than 
high-level radioactive waste, without decreasing environmental, health, 
or public safety requirements.'' Public Law 115-91, Sec. 3139. DOE's 
report responsive to Congress' directive is currently undergoing 
interagency review. Even before this Congressional directive, in 2012, 
for example, the Blue Ribbon Commission on America's Nuclear Future 
(BRC)--a group of experts, including a former NRC Chairman, tasked by 
the Secretary of Energy at the request of the President with reviewing 
the existing policies for managing the back end of the nuclear fuel 
cycle--reported that ``[t]he most important overarching criticism of 
the U.S. waste classification system is that it is not sufficiently 
risk-based. Rather, it is (for the most part) directly or indirectly 
source-based--that is, based on the type of facility or process that 
produces the waste rather than on factors related to human health and 
safety risks.'' (Blue Ribbon Commission on America's Nuclear Energy 
Future, Report to the Secretary of Energy, January 26, 2012 \3\). The 
BRC found that ``the definition of HLW, in particular, has attracted 
the most criticism'' for being insufficiently risk-based, noting that 
``to the extent that terms such as `highly radioactive,' `sufficient 
concentrations,' and `requires permanent isolation' are used to define 
HLW, they have not been quantified.'' Id. The BRC explained that this 
is ``potentially problematic because the liquid waste stream from the 
front end of a reprocessing plant can have a broad range of 
characteristics--including characteristics that may be altered by time 
(decay) or by subsequent processing (which DOE has done with many of 
its defense wastes). The waste that remains after these changes, while 
still classified as HLW, may have characteristics similar to TRU waste 
or LLW.'' Id.
---------------------------------------------------------------------------

    \3\ The BRC report is available at: https://www.energy.gov/sites/prod/files/2013/04/f0/brc_finalreport_jan2012.pdf.
---------------------------------------------------------------------------

    Consistent with Congress' directive, the BRC's report, and other 
similar reports and findings, DOE has re-examined its existing 
authorities and the statutory requirements for managing and disposing 
of reprocessing wastes, including the HLW definition and the 435.1 WIR 
Criteria. Consistent with the statutory text, DOE's HLW interpretation 
is more fully based on radiological characteristics that determine 
risk. As such, it is the first step in a process of potentially opening 
new disposal pathways for reprocessing

[[Page 26841]]

waste with lower levels of radioactivity, while protecting human health 
and the environment. This process will proceed on a site-by-site basis 
and involve, as appropriate, various stakeholders including the NRC, 
the Environmental Protection Agency (EPA), states, tribes, and others.
    DOE's interpretation of HLW could, upon implementation, provide a 
range of benefits to both DOE and the public, including: Enhancing 
safety at DOE sites by using lower-complexity waste treatment and 
immobilization approaches to reduce the risks of long-term waste 
storage and management; reducing time that untreated radioactive waste 
is stored on-site at DOE facilities; furthering DOE's commitment to 
state and local communities to move radioactive material out of the 
generator state; utilizing mature and available commercial facilities 
and capabilities to shorten mission completion schedules and reduce 
taxpayer financial liability; aligning with international guidelines 
for management and disposal of radioactive waste based on radiological 
risk; and establishing risk-informed disposal practices, consistent 
with current regulatory requirements for LLW.
3. Interpretative Rule
    Commenters stated that DOE's HLW interpretation should be issued as 
a regulation. Commenters also stated that DOE should provide the public 
with more information about how the Department intends to implement the 
interpretation at each site where reprocessing waste is stored, and 
that DOE should provide additional opportunities for public 
participation beyond the 90 days of public comment provided on the 
interpretation.
    DOE wishes to make clear that an interpretative rule is a type of 
rule or regulation within the meaning of those terms in the APA, See 5 
U.S.C. 551(4). It is well established under the APA that agencies have 
the authority to issue interpretative rules, and that these rules are a 
valuable tool for an agency to use to advise the public prospectively, 
and in a clear and transparent manner, of the agency's construction of 
a statute it administers. As such, an interpretative rule does not have 
force and effect on its own. It is not until the agency takes an action 
in which the interpretation is applied that the interpretation can have 
an effect and, even then, only through that subsequent action.
    When DOE considers this statutory interpretation in the context of 
taking an action in the future with regard to specific wastes, it will 
evaluate its internal orders and policies to determine if any require 
revision to accommodate this interpretation, and if so, DOE will follow 
applicable procedures to make any necessary changes. However, DOE's 
internal system of orders are not rules or regulations under the APA, 
and do not themselves constitute agency action.
    Furthermore, DOE disagrees that the public required additional 
information about how DOE intends to implement the HLW interpretation 
in order to comment on it. The wealth of substantive comments received, 
including comments that led to revisions in the HLW interpretation as 
reflected in this Supplemental Notice, indicate that the public had a 
meaningful opportunity to comment on DOE's general interpretation. 
Finally, DOE disagrees that additional process is necessary before DOE 
adopts the interpretation. As DOE indicated in the request for comments 
and is reiterating in this Supplemental Notice, there will be 
additional processes after the interpretation has been issued but 
before any specific waste classification or disposal decisions are 
implemented, as outlined in greater detail below.
    State, Tribal, Local and Public Involvement. The Department will 
work closely with State and local officials, regulators, tribal 
governments, and stakeholders, on a site-by-site basis, to ensure 
compliance with applicable programmatic requirements and regulatory 
agreements before classifying any reprocessing waste as non-HLW under 
the HLW interpretation or consequent disposal decisions.
    Path Forward. DOE expects that, depending on site and waste 
specific facts, some of its reprocessing waste will be found to qualify 
for non-HLW classification, while other waste will continue to be 
managed, and ultimately disposed of, as HLW. The development of the 
path forward for reprocessing waste classified as non-HLW, and 
decisions flowing from that path, will be dependent on executing a 
number of technical and regulatory steps (listed in no particular 
order, recognizing some steps may occur simultaneously), including, but 
not limited to:
     Identifying potential disposal facilities.
     Evaluating disposal facility waste acceptance criteria and 
impacts on performance objectives of the disposal facility (the 
licensee or permittee for the disposal facility may also be required to 
obtain appropriate regulatory authorizations to accept waste).
     Coordinating with stakeholders.
     Preparing or revising necessary permits.
     Preparing NEPA or Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) documentation, if needed, to 
retrieve, treat, package, characterize, and certify the wastes for 
disposal.
     Modifying affected contracts, if necessary.
     Including a fiscal year budget request to plan for and/or 
execute disposal of the waste stream.
     Initiating project planning and execution activities in 
accordance with DOE Order 413.3B, Program and Project Management for 
the Acquisition of Capital Assets, as appropriate.
     Developing waste loading, packaging, and transportation 
cask systems as needed to remove the waste from the site and deliver to 
the disposal facility.
    As explained above and in the NOI, DOE's first step in determining 
whether and how to implement the HLW interpretation specific to a 
particular waste stream is initiating a NEPA process to analyze the 
potential environmental impacts associated with disposing of certain 
waste from the Savannah River Site at a commercial disposal facility 
located outside South Carolina licensed by either the Nuclear 
Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 
to receive low-level radioactive waste. At this time, DOE is not 
considering whether to implement the HLW interpretation at any other 
site or for any other waste stream. While DOE will continue in the 
normal course to evaluate its waste inventories and related management 
and disposal options, and expects to engage openly with stakeholders 
regarding potential future opportunities to implement the HLW 
interpretation more broadly, any decisions about whether and how the 
interpretation will apply to other wastes at any specific site will be 
the subject of subsequent actions.
4. West Valley Demonstration Project
    Commenters stated that DOE did not address the application of the 
interpretation to the West Valley Demonstration Project (WVDP) in New 
York. As commenters pointed out, the WVDP operates under a distinct 
statutory and regulatory basis pursuant to the West Valley 
Demonstration Project Act (Pub. L. 96-368), which provides a definition 
of HLW separate from the AEA and the NWPA. As such, DOE is now 
clarifying that: (1) The interpretation does not apply to the 
reprocessing wastes from the WVDP governed by Public Law 96-368; and 
(2) the interpretation therefore will not be used in connection with 
the disposition

[[Page 26842]]

of any reprocessing wastes from the WVDP.
5. Compliance With the National Environmental Policy Act
    Commenters stated that the HLW interpretation is a major federal 
action affecting the quality of the human environment, and that DOE is 
required to prepare a NEPA analysis that specifically addresses the 
potential environmental impacts of the interpretation. DOE disagrees 
that the HLW interpretation requires the NEPA analysis suggested by the 
commenters.
    As discussed above, through this Supplemental Notice, DOE is only 
stating its understanding of the proper interpretation of the statutory 
text in light of the language and purpose of the two Acts. Again, 
issuance of this Notice does not change how DOE will manage any 
particular reprocessing wastes, and it does not commit DOE to any 
specific disposal pathways for any reprocessing wastes. Rather, DOE's 
interpretation helps initiate a waste-specific decision-making process 
that will include appropriate engagement with stakeholders before any 
final decisions could or will be made that potentially would result in 
any environmental impacts. As explained above, and in the NOI, DOE is 
separately initiating a NEPA process to study the potential 
environmental impacts associated with implementing the interpretation 
to dispose of certain waste from the Savannah River Site at a 
commercial disposal facility located outside South Carolina licensed by 
either the Nuclear Regulatory Commission (NRC) or an Agreement State 
under 10 CFR part 61 to receive low-level radioactive waste. If, in the 
future, DOE proposes an additional action to which NEPA would apply, 
such as implementation of this interpretation with respect to other 
specific wastes, DOE will likewise analyze such a proposal pursuant to 
NEPA.

B. Technical Basis for HLW Interpretation

    DOE is committed to the safe and environmentally sound disposal of 
all its radioactive waste, and the HLW interpretation enhances rather 
than lessens DOE's commitment to that outcome. Commenters expressed 
concern that, in effect, DOE's HLW interpretation would lead to the 
less rigorous and safe disposal of radioactive wastes without a 
sufficient technical basis. However, the source of the waste does not 
dictate its safe disposal--the radiological characteristics of the 
waste and the requirements of the disposal facility operate together to 
ensure safe disposal. Reprocessing wastes that meet the criteria for 
non-HLW can be safely disposed along with other non-reprocessing wastes 
(with similar waste characteristics) that meet the disposal facility's 
requirements. The requirements that ensure the health and safety of the 
public, workers, and the environment are long-standing and embedded in 
DOE's and the NRC's regulations and implementing procedures and 
documents (e.g., design, permitting, and operations processes for 
disposal of LLW). All commercial and DOE disposal facilities must be 
designed, constructed, operated, and closed to meet relevant safety 
standards, including performance objectives. Commercial LLW disposal 
facilities are licensed by either the NRC or Agreement States under 10 
CFR part 61. LLW disposal facilities owned by DOE must be authorized by 
DOE in accordance with DOE Order 435.1 and associated manuals, guides, 
and other directives. Tank closures in the states of Idaho and South 
Carolina must comply with Section 3116, while tank closures in 
Washington must comply with the requirements of DOE Order 435.1.
    The HLW interpretation and the two criteria for non-HLW are based 
on well-established approaches for waste classification and disposal. 
The first criterion is derived directly from the NRC's waste 
classification system established in the 1980's under 10 CFR 61.55. The 
second criterion is consistent with both the NRC's alternative 
classification system (10 CFR 61.58, Alternative Requirements for Waste 
Classification and Characteristics, and 10 CFR 61.55(a)(2)(iv), Waste 
Classification) and DOE Manual 435.1-1, which regulates the safety of 
LLW disposal facilities according to demonstrated compliance with 
public health and worker safety-based performance objectives. The NRC's 
performance objectives for commercial LLW disposal facilities (10 CFR 
part 61, subpart C) and the DOE performance objectives for DOE LLW 
disposal facilities (DOE M 435.1-1, Chapter IV, Paragraph P) are 
comparable in their standards and focus on protecting the environment, 
workers, and the public.
    Both criteria 1 and 2 directly incorporate the requirement that a 
reprocessing waste must meet the performance objectives of a LLW 
disposal facility to be determined as non-HLW. As further explained 
below, performance objectives set forth the overarching radiological 
standards necessary to protect the health and safety of individuals and 
the general population from radiological releases, both during 
operation and following the closure of the disposal facility. Disposal 
facilities have other requirements that must be met for disposal of the 
waste, including for example satisfaction of waste acceptance criteria 
(WAC). The WAC are the technical and administrative requirements a 
waste must meet to be accepted at a disposal facility (e.g., waste 
characterization, waste form acceptability, quality assurance), and are 
established to ensure the disposal facility, in total, meets its 
safety-based performance objectives.\4\
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    \4\ Each disposal facility has its own WAC, which are dictated 
in part by the physical characteristics of a site. An example of a 
site-specific WAC for the WCS commercial disposal facility in Texas 
is available at: http://www.wcstexas.com/pdfs/forms-and-docs/Waste%20Acceptance%20Criteria-a.pdf.
---------------------------------------------------------------------------

    Although DOE's plain reading of the statutory definition of HLW 
stands on its own, the following information is provided to further 
public understanding of the interpretation from a technical 
perspective.
1. Criterion 1--Waste At or Below Class C LLW Limits
    Criterion 1, as stated in the October 10 Notice, provided that a 
reprocessing waste is non-HLW if the waste: ``does not exceed 
concentration limits for Class C low-level radioactive waste as set out 
in section 61.55 of title 10, Code of Federal Regulations.'' This 
criterion has been revised to clarify that a waste must also meet the 
performance objectives of a disposal facility. The revised criterion 
provides that a reprocessing waste is non-HLW if the waste: ``does not 
exceed concentration limits for Class C low-level radioactive waste as 
set out in section 61.55 of title 10, Code of Federal Regulations, and 
meets the performance objectives of a disposal facility.'' This 
criterion would be applicable only to DOE waste suitable for off-site 
disposal at a commercial disposal facility regulated by the NRC or an 
Agreement State.
    Commenters offered a number of observations about criterion 1, as 
originally stated. Commenters noted that this criterion does not 
require that the waste comply with the performance objectives of a LLW 
facility, only that it meet the 10 CFR 61.55 concentration limits. 
Other commenters believed it to be unreasonable because, for example, 
it would permit DOE to convert HLW to non-HLW by dilution or 
concentration averaging (e.g., mixing with grout); DOE reprocessing 
wastes have different radionuclides than commercial LLW; and DOE would 
need to employ statistical sampling to accurately characterize waste 
for the purposes of assessing whether it meets the Class C

[[Page 26843]]

standard. On the other hand, several commenters believed this criterion 
was reasonable based on its technical merit, and supported DOE in its 
technical rationale for this criterion. These comments are addressed 
below; a comparison of NRC and DOE safety goals and performance 
objectives for LLW disposal facilities is provided in Appendix A of 
this document.
    Compliance with performance objectives. In response to comments, 
DOE has revised this criterion to expressly state that the reprocessing 
waste must meet the performance objectives of a disposal facility. DOE 
understands that a waste meeting the concentration limits in the tables 
in 10 CFR 61.55 alone is not sufficient to effectuate the disposal of 
non-HLW at a disposal facility. If a certain reprocessing waste stream 
is determined by waste characterization data and analysis to have 
concentrations satisfying Class A, B, or C using the 10 CFR 61.55 
tables, and meets the performance objectives of a disposal facility, 
then the waste stream is non-HLW. This process is consistent with how 
DOE disposes of non-reprocessing waste (e.g., soils and debris from 
environmental restoration and decontamination and decommissioning [D&D] 
of nuclear facilities) that the Department determines is appropriate 
for DOE disposal facilities or off-site commercial disposal. The 
process is also consistent with how industry routinely disposes of LLW 
in commercial disposal facilities.
    Concentration Averaging. Application of DOE's interpretation would 
not result in improper dilution of a reprocessing waste stream. 
Dilution of a waste stream to meet concentration limits is not 
permitted by DOE (Implementation Guide, Section II-A, page II-4) or the 
NRC (Concentration Averaging and Encapsulation Branch Technical 
Position, Revision 1 (February 2015)). Some types of stabilization 
(e.g., grouting), solidification, or other treatment would result in 
reductions of radionuclide concentrations. However, this is not 
dilution if stabilization or solidification is required by disposal 
sites' waste acceptance criteria to immobilize radioactive constituents 
and meet long-term performance objectives. Grout, for example, is a 
proven safe and effective technology that continues to be used by DOE 
and other national and international parties to stabilize radioactive 
wastes, including certain tank wastes, for disposal. Use of 
stabilization agents for this purpose is consistent with the NRC's 
Concentration Averaging and Encapsulation Branch Technical Position, 
which allows mixing of nonradioactive constituents with radioactive 
waste (e.g., solidification, encapsulation, or additives used in 
thermal processing) provided the mixing has a purpose other than 
reducing the waste classification, such as waste stabilization or 
process control. Furthermore, the addition of stabilization agents to 
the waste prior to disposal is often necessary to meet the NRC 
requirements in 10 CFR 61.56, Waste characteristics (e.g., to ensure 
structural stability of the waste form).
    Radionuclides in DOE reprocessing waste. Commenters noted that DOE 
reprocessing wastes are unique, and it may be improper to consider some 
DOE reprocessing wastes as comparable to the LLW classification 
concentration limits in the NRC regulations that are based on generic 
LLW from the commercial sector. Commenters noted that some DOE 
reprocessing waste streams, in particular those that are not currently 
treated, may contain unique radionuclides. This does not mean that the 
criterion is improper, only that, as DOE has stated in the October 10 
Notice and this Supplemental Notice, waste classification and any 
disposal decision would not be made until DOE completes waste 
characterization, among other prerequisite actions (e.g., applicable 
NEPA compliance). The results of this analysis, and the ability to meet 
performance objectives at the intended disposal facility would dictate 
the ultimate waste classification for disposal purposes.
    Regarding 10 CFR 61.55, table 1 addresses seven specific 
radionuclides and alpha emitters with half-lives greater than five 
years, and table 2 includes four additional specific radionuclides with 
the Class C limits. These nuclides identified by NRC are the most 
mobile and problematic of all possible key radionuclides and their 
concentration determine the classification of the waste. Regardless of 
classification, compliance with performance objectives is ensured 
through compliance with the disposal facility waste acceptance criteria 
for all key radionuclides. For DOE facilities, which do not follow the 
10 CFR 61.55 waste classification tables, and the NRC/Agreement State 
facilities, the full range of radionuclides would be considered as part 
of the regulatory review of a facility's ability to meet applicable 
performance objectives.
    Sampling. DOE will continue to use the existing framework of 
guidelines, best practices, regulations, and other mechanisms to ensure 
that each waste stream--whether from reprocessing or other sources--is 
properly characterized before it is received by a treatment, storage, 
or disposal facility. DOE follows established practices to characterize 
and document radioactive waste in sufficient detail to ensure safe 
management and compliance with the waste acceptance requirements of any 
facility receiving the waste. These practices are described in DOE M 
435.1-1 (e.g., Chapter II-L, page II-5, and Chapter IV-1, page IV-4); 
DOE G 435.1-1 (e.g., Chapter II-L, page II-78, and Chapter IV-I, page 
IV-70); EPA guidance (e.g., Hazardous Waste Test Methods/SW-846, 
Guidance on Systematic Planning Using the Data Quality Objectives 
Process, etc.); NRC guidance (e.g., Concentration Averaging and 
Encapsulation Branch Technical Position); DOE or commercial facility 
waste acceptance criteria; and DOE waste analysis plans and sampling 
and analysis plans for specific waste streams or activities (e.g., tank 
waste retrieval); and other documents.
2. Criterion 2--Waste Above Class C Limits
    Criterion 2, as stated in the October 10 Notice, provided that a 
reprocessing waste is non-HLW if the waste: ``does not require disposal 
in a deep geologic repository and meets the performance objectives of a 
disposal facility as demonstrated through a performance assessment 
conducted in accordance with applicable regulatory requirements.'' This 
criterion has been revised from ``applicable regulatory requirements'' 
to ``applicable requirements.'' The revision was made to more precisely 
reflect that performance assessments are conducted pursuant to DOE and 
NRC requirements, guidance, and standards.
    Commenters raised several concerns about criterion 2, as originally 
stated. Comments regarding this criterion centered on DOE as a self-
regulator, with the ability to unilaterally determine or change 
performance standards for its own facilities, and DOE's reliance on 
performance assessments. Commenters also noted more specific concerns, 
such as DOE's use of performance objectives rather than waste 
acceptance criteria and the need for DOE to counteract the purported 
motivation of a commercial disposal facility to accept any waste for a 
profit. As with criterion 1, these comments are addressed below, and 
Appendix A of this document contains a comparison of NRC and DOE safety 
goals and performance objectives for LLW disposal facilities.
    DOE regulatory role. Congress conferred on DOE the authority to, in 
certain circumstances, self-regulate its

[[Page 26844]]

own radioactive waste management and disposal in accordance with the 
AEA, as amended, and other statutes. Where DOE disposes of its wastes 
at NRC or Agreement State licensed facilities, DOE is not the regulator 
and is subject to the same requirements and oversight as any private 
customer. While DOE has self-regulatory authority in certain 
circumstances, that does not mean DOE operates with unfettered 
discretion and without oversight. DOE is subject to various levels of 
independent internal and external oversight making it accountable to 
comply with an integrated framework of laws and technical standards to 
protect public health, safety, and the environment. Contrary to the 
concerns of some commenters, DOE's internal governing documents (e.g., 
DOE Order 435.1, and associated manual and guide) represent a mature 
and robust system to address the protection of workers, public health 
and safety, and the environment for all DOE onsite radioactive waste 
management, as well as environmental restoration activities resulting 
in off-site management and disposal of radioactive waste. Many of the 
current DOE compliance-related actions revolve around waste and 
material disposition that are governed by, among other external 
regulatory regimes: CERCLA; Resource Conservation and Recovery Act 
(RCRA) or industrial waste water regulations; and regulatory 
agreements.
    In addition, there are several organizations involved in oversight 
of DOE's Office of Environmental Management and that office's waste 
management and disposal activities, including: State agencies and EPA 
for activities under RCRA and CERCLA; the Defense Nuclear Facilities 
Safety Board (DNFSB) for defense nuclear facilities; DOE's Low-Level 
Waste Disposal Facility Federal Review Group (LFRG) \5\ for radioactive 
waste disposal and closure of liquid waste tanks; DOE's Office of 
Environmental, Health, Safety & Security for establishing radiation 
protection standards through DOE orders and regulations; and DOE's 
Office of Enterprise Assessment for independent oversight and 
enforcement functions covering all DOE program offices.
---------------------------------------------------------------------------

    \5\ The LFRG is comprised of federal employees from DOE-
Headquarters, the National Nuclear Security Administration, and DOE 
Field Elements with radioactive waste disposal facility 
responsibilities. Among its functions, the LFRG is charged with 
reviewing the underlying technical basis of a waste disposal 
facility, which may include, for example: Disposal facility 
performance assessments and composite analyses; appropriate CERCLA 
documentation; and other technical basis documentation (e.g., 
monitoring plan and closure plan). The reviews are performed to 
provide management with reasonable assurance that the applicable 
performance objectives and measures will be met.
---------------------------------------------------------------------------

    Other forms of guidance or external accountability exist such that 
it would be highly difficult and unlikely for DOE to unilaterally 
change its requirements to be inconsistent with established norms and 
regulatory requirements for radioactive waste management. For example, 
the National Council on Radiation Protection and Measurements (NCRP), a 
Congressionally-chartered corporation (Pub. L. 88-376, July 14, 1964), 
plays a key role supporting radiation protection by providing 
independent scientific analysis, information, and recommendations that 
represent the consensus of leading scientists. NCRP draws from 
collaboration with the International Commission on Radiological 
Protection (ICRP), which has developed and maintained the International 
System of Radiological Protection used world-wide as the common basis 
for radiological protection standards, legislation, guidelines, 
programs, and practice.
    Further, the Interagency Steering Committee on Radiation Standards 
(ISCORS) operates at the federal level to ensure that comparable 
standards of protection are afforded to workers, the public, and the 
environment across agencies that develop and enforce regulations for 
nuclear-related activities and facilities. DOE is a member of the 
ISCORS, which is comprised of eight Federal agencies, three Federal 
observer agencies, and two state observer agencies that facilitate 
consensus on acceptable levels of radiation risk to the public and 
workers, and promote consistent risk approaches in setting and 
implementing standards for protection from ionizing radiation. The NRC 
and EPA play prime roles on ISCORS and, like DOE, set standards for the 
level of acceptable risk from radiation exposures by considering ICRP 
and NCRP recommended guidelines. Unilateral proposals to change 
practices would be met with significant scrutiny and oversight from 
ISCORS, as the actions of one agency reflect on policies in other 
agencies.
    Performance objectives and performance assessments. Several 
commenters were skeptical about DOE's reliance on performance 
assessments and questioned whether such assessments provide the 
necessary level of technical rigor, particularly when used for LLW 
disposal versus HLW or spent nuclear fuel (SNF) disposal, which account 
for longer compliance time periods, to ensure safe disposal of non-HLW. 
Also, commenters noted the lack of regulatory standards for a 
performance assessment and the potential for inconsistent application 
across disposal sites.
    Performance objectives are the regulatory means by which NRC and 
DOE set forth the overarching radiological standards necessary to 
protect the health and safety of individuals and the general population 
from radiological releases, both during operation and following the 
closure of the disposal facility (e.g., both DOE and NRC set the 
performance objective to ensure protection of the general population at 
a dose of no more than 25 millirem annually [DOE M 435.1-1, Chapter IV-
P(1)(a), page IV-9, and 10 CFR 61.41]).
    Performance assessments (PA) are used by the NRC and other 
regulatory bodies as a universally utilized approach to radioactive 
waste disposal to demonstrate how performance objectives will be met. 
The PA is the process, model, or collection of models used to estimate 
future releases of radionuclides to the environment and potential doses 
to human receptors. NRC has specific and detailed requirements, 
guidance and standards applicable to the conduct of a performance 
assessment: NUREG 1573, Performance Assessment Methodology for Low-
Level Radioactive Waste Disposal Facilities. DOE has comparable 
requirements set forth in DOE M 435.1-1 (Chapter IV-P(2), page IV-11), 
and DOE Standard Disposal Authorization Statement and Tank Closure 
Documentation ((DOE-STD-5002-2017, Chapter 2).
    The disposal facility's wide-ranging requirements--derived from the 
performance objectives of the facility and coupled with other 
quantitative and qualitative elements, e.g., waste acceptance criteria, 
defense-in-depth safeguards, sensitivity and uncertainty analyses, and 
waste form/disposal facility stability considerations--form an 
integrated framework to provide confidence that the disposal facility 
will perform safely to protect the public and the environment.
    The HLW interpretation does not change, and will not require any 
changes to NRC or DOE regulatory requirements or facility performance 
objectives. The same high standards for safety and technical rigor will 
be maintained across commercial and DOE disposal sites, recognizing 
that each site will have its own site-specific requirements. In 
addition, the disposal facility's compliance period for ensuring 
protection of public health and safety is established by the regulator 
(e.g., NRC or Agreement State) and will be applied in accordance with 
the radiological

[[Page 26845]]

characteristics of the waste and the site-specific performance 
objectives of the disposal facility.
    Other concerns. Other commenters raised the general concern that, 
under DOE's interpretation, commercial operators would be motivated by 
profit to accept wastes that may not be safe for disposal. DOE believes 
this concern is misplaced, given the integrity and rigor of the 
regulatory system governing the disposal of LLW at private facilities 
licensed or permitted by the NRC and Agreement States. LLW has been, 
and will continue to be, disposed of at commercial facilities in a safe 
and technically sound manner. DOE has no reason to find that the 
addition of its non-HLW to this system would cause any different or 
irresponsible action from commercial entities.
3. Technical Basis for Not Removing Key Radionuclides
    Commenters were concerned by DOE's interpretation, which does not 
include the removal of key radionuclides ``to the maximum extent 
practicable'' as a condition for a reprocessing waste stream to be 
determined non-HLW. This concern related to all forms of disposal, 
whether in situ (e.g., closure of a waste tank), or at a designated DOE 
or commercial LLW disposal facility. Commenters noted that this is an 
element of both the existing 435.1 WIR Criteria, and Section 3116.\6\
---------------------------------------------------------------------------

    \6\ As noted elsewhere, the requirements of Section 3116 are not 
applicable to waste shipped out of South Carolina or Idaho and 
disposed of in another state.
---------------------------------------------------------------------------

    As previously explained, there is nothing in the statutory text of 
the AEA or the NWPA that requires radionuclides to be removed to the 
maximum extent technically and economically practical prior to 
determining whether waste is HLW. Rather, the statutory text is focused 
on examining a waste in terms such as whether it is highly radioactive, 
contains fission products in sufficient concentrations, or requires 
permanent isolation. As a consequence, DOE believes that reprocessing 
wastes that already meet existing regulatory requirements for safe 
disposal as LLW without any radionuclide removal do not present risks 
to the public and the environment that would necessitate their 
classification as HLW under the AEA and NWPA.
4. Tank Closures
    Commenters, in particular government officials of states with 
underground radioactive waste tanks, voiced concern with DOE's approach 
to the extent it would result in classifying tank reprocessing wastes 
as non-HLW and disposing of it in place. Commenters believed the 
interpretation is unreasonable in its application to tank wastes, based 
on the concern that tank waste from reprocessing is highly radioactive 
as a matter of fact and, additionally, that this interpretation should 
not be applied to close tanks without retrieving wastes.
    As noted previously and reiterated below, this Supplemental Notice 
does not propose or finalize any decisions about the classification or 
disposal of any waste stream, or this interpretation's potential 
application to the closure of waste tanks. DOE understands the complex 
history and practice with regard to tank closure activities, and 
existing arrangements that may affect implementation. In this case as 
with its other wastes, DOE will pursue any waste classification or 
disposal decisions in separate actions, in accordance with applicable 
law, regulations and agreements, and based on appropriate interactions 
with affected stakeholders and regulators.

C. Implementation and Other Comments on the HLW Interpretation

    DOE received a number of comments, from state and local 
representatives, non-governmental organizations, and individual members 
of the public suggesting the need for and inquiring about more detailed 
information, e.g., waste inventory amounts, wastes affected by a 
different classification, transportation routes, and new disposal 
locations that would result from the Department's implementation of its 
interpretation. In particular, commenters wanted to better understand 
DOE's approach with regard to state, local, and tribal consultation 
when evaluating and implementing disposal decisions; the NRC's 
regulatory role; confirmation of compliance with applicable federal and 
state environmental laws, regulations and agreements; potential 
environmental justice issues; impact on the Waste Isolation Pilot Plant 
(WIPP); and availability of space in LLW facilities with the addition 
of non-HLW.
    DOE also received an assortment of comments not directly related to 
its interpretation. Some commenters wanted DOE to expand the scope of 
the interpretation to include all radioactive waste, specifically 
uranium-233 waste, while others questioned the need for the 
interpretation at all if DOE pursued the development of a deep geologic 
repository at Yucca Mountain for SNF and HLW disposal.
    Information needs. The questions and issues raised by commenters 
seeking more information and details on implementation actions are 
important to DOE (and were constructive in assisting DOE with its 
criteria for non-HLW), and will be the subject of subsequent public 
interactions when DOE undertakes implementation. As stated in the 
October 10 Notice seeking public comment on the HLW interpretation, and 
equally applicable at this juncture, DOE is not by issuance of this 
interpretation making and has not made any decisions on the 
classification or disposal of any particular waste stream at any 
location. At this time, it is premature to conclude any detailed impact 
analyses or to provide specific implementation details or plans (e.g., 
what reprocessing waste will go to what facility); DOE will not be 
changing how it manages or disposes of its reprocessing waste except 
pursuant to subsequent actions to implement this interpretation, which 
would include appropriate NEPA analysis for any particular proposed 
action, such as the NEPA process described in the NOI.
    Notwithstanding that at present DOE has not made any implementation 
decisions, as mandated by law (Pub. L. 115-91, Sec. 3139), DOE prepared 
a Report to Congress providing in part the type of information 
requested by commenters (and several commenters specifically asked 
about the status of the report). The report is undergoing interagency 
review and will not be publicly available until that review is complete 
and the report is submitted to Congress.
    Consultation and compliance. DOE will not undertake any 
implementation actions without appropriate interactions with applicable 
federal, state and local agencies, and Native American governments. The 
scope of implementation will be considered site by site, and conducted 
in full compliance with existing statutes, regulations, and DOE 
directives. Specifically, DOE will continue to comply with its 
responsibilities under existing requirements, agreements, consent 
orders or permits including: NEPA; CERCLA; RCRA; DOE Order 435.1 and 
its implementing documents; and Section 3116, applicable in Idaho and 
South Carolina. DOE will consider input from affected state, local, and 
tribal stakeholders, along with governing regulatory agencies.
    NRC regulatory role. The Department fully supports the NRC in its 
statutory and regulatory role with respect to regulating commercial 
nuclear activities (including licensing disposal facilities), as well 
as its historical and established consultative role to DOE on the 
disposal of its reprocessing wastes determined to

[[Page 26846]]

not be HLW under DOE Order 435.1. DOE's interpretation does not change 
the NRC's existing authorities, e.g., under Section 3116. DOE intends 
to maintain its strong relationship with the NRC, and will engage with 
the NRC on the best way to continue that relationship when and as it 
applies its HLW interpretation in the future.
    Environmental Justice. Some commenters were concerned that DOE's 
interpretation violates the principles of environmental justice, 
specifically the impact on Native American nations and impacts on 
tribal lands from DOE's radioactive waste management and disposal 
decisions. DOE is committed to the principles of a government-to-
government relationship with tribal populations as embodied in 
Executive Order (E.O.) 13175 and DOE's Order 144.1, as well as the 2010 
United States' announcement supporting the United Nations Declaration 
of the Rights of Indigenous People. DOE also remains committed to build 
on the legacy of E.O. 12898 and the principles of environmental 
justice. In this and other applicable contexts, DOE will continue to 
work with all stakeholders, including interested tribal organizations 
and minority and low-income populations to ensure their interests are 
taken into account, consistent with environmental justice principles 
and applicable NEPA processes.
    WIPP. All transuranic waste generated from atomic energy defense 
activities to be disposed of at WIPP must comply with the WIPP Land 
Withdrawal Act, as amended, the WIPP Hazardous Waste Facility Permit, 
the WIPP waste acceptance criteria, and other applicable requirements. 
Currently, any reprocessing waste that may be determined to be non-HLW 
could not be disposed of at WIPP because the WIPP permit specifically 
prohibits tank waste from disposal at WIPP.
    Disposal capacity. DOE believes that the available commercial LLW 
disposal capacity will be adequate to accommodate its wastes, as well 
as those from the commercial sector. The Waste Control Specialists 
(WCS) Federal Waste Facility accepts DOE Class A, B or C LLW. 
EnergySolutions in Utah (Clive) receives commercial and DOE Class A 
LLW.\7\ These facilities have several million cubic meters of disposal 
capacity, with the possibility of increased capacity if license 
amendments are approved, that can be used for DOE's eligible 
radioactive wastes. DOE will continue to evaluate LLW disposal 
capabilities and available capacity.
---------------------------------------------------------------------------

    \7\ There are two additional licensed LLW disposal facilities 
for commercial compact waste only (the Barnwell, South Carolina 
facility and the U.S. Ecology facility near Richland, Washington).
---------------------------------------------------------------------------

    Other waste types. The scope of the HLW interpretation is 
reprocessing waste; it does not and would not appropriately address 
other waste types that are not from reprocessing of SNF, such as: The 
greater-than-Class C (GTCC) LLW inventory included in the Final 
Environmental Impact Statement for the Disposal of Greater-Than-Class C 
Low-Level Radioactive Waste and GTCC-Like Waste, and also discussed in 
the recently issued Environmental Assessment (EA) for the Disposal of 
Greater-Than-Class C (GTCC) Low-Level Radioactive Waste and GTCC-Like 
Waste at Waste Control Specialist in Andrews County, Texas; and 
uranium-233 waste.
    Yucca Mountain. At least one commenter opined that DOE could 
obviate the need for the HLW interpretation if, instead, the Department 
pursued the development of a deep geologic repository at Yucca Mountain 
for SNF and HLW. Pursuit of a deep geologic repository at Yucca 
Mountain and DOE's HLW interpretation are not mutually exclusive 
efforts, and DOE believes it is necessary and appropriate to pursue 
both. DOE agrees that Yucca Mountain is the only site that can legally 
be considered for the disposal of HLW, and the Administration has 
requested funding from Congress to restart the Yucca Mountain licensing 
proceeding. The Department's interpretation of what is not HLW does not 
affect the need for, or the Department's commitment to a deep geologic 
repository at Yucca Mountain for the disposal of HLW.

IV. Conclusion

    The Department bases its interpretation of the statutory term HLW 
on the statutory text and purpose. DOE's interpretation is consistent 
with and informed by its comprehensive understanding and experience in 
the safe and technically sound disposal of many types of radioactive 
wastes, including those from its legacy reprocessing activities. On 
this basis, the Department interprets the AEA and NWPA as establishing 
that not all reprocessing wastes are HLW by law, and that where wastes 
can be safely disposed based on the radiological characteristics of the 
waste, such wastes may properly be classified as non-HLW. DOE 
anticipates continued engagement and productive involvement of members 
of the public and the regulatory community in subsequent activities 
that may follow this HLW interpretation, including the NEPA process 
described in the NOI.

    Signed at Washington, DC, on May 30, 2019.
Anne Marie White,
Assistant Secretary for Environmental Management.

Appendix A

    This Appendix provides additional detail comparing the 
requirements of DOE and NRC for the disposal of LLW. While there are 
some differences in the two systems, both are based on technical and 
administrative requirements that ensure an essentially identical 
level of public health and safety protection.

    Safety Goals and Comparison of NRC and DOE Performance Objectives
------------------------------------------------------------------------
                                 NRC performance
                                  objective for        DOE performance
         Safety goal               commercial        objective/measures
                                   facilities        for DOE facilities
------------------------------------------------------------------------
Standard for demonstrating    reasonable assurance  reasonable
 compliance.                   exists that           expectation that
                               exposures to humans   the performance
                               are within the        objectives
                               limits established    identified in this
                               in the performance    Chapter are not
                               objectives . . .      exceeded as a
                               [10 CFR 61.40].       result of operation
                                                     and closure of the
                                                     facility. [DOE
                                                     Manual 435.1-1 Ch.
                                                     IV P(1)].
Protection of the General     Radioactive material  Dose to a
 Population.                   released to the       representative
                               general environment   member of the
                               in groundwater,       public shall not
                               surface water, air,   exceed 25 mrem
                               soil, plants, or      annually from all
                               animals must not      exposure pathways
                               result in a dose to   excluding the dose
                               the whole body of     from radon and its
                               in excess of 25       progeny in air.
                               mrem annually. [10    [DOE Manual 435.1-1
                               CFR 61.41].           Ch. IV P(1)(a)].

[[Page 26847]]

 
                              NRC adds organ-       DOE adds air pathway
                               specific              objective: Dose to
                               objectives: No dose   representative
                               to the thyroid in     members of the
                               excess of 75 mrem/    public shall not
                               year and to any       exceed 10 mrem/
                               other organ of any    year, excluding
                               member of the         radon and its
                               public in excess of   progeny. [DOE
                               25 mrem/year. [10     Manual 435.1-1 Ch.
                               CFR 61.41].           IV P(1)(b)].
                                   --This cell      DOE adds an
                                  intentionally      objective
                                     blank--         specifically for
                                                     radon: Radon
                                                     release shall not
                                                     exceed an average
                                                     flux of 20 pCi/m\2\/
                                                     second at the
                                                     surface of the
                                                     disposal facility.
                                                     Alternatively a
                                                     limit of 0.5 pCi/
                                                     liter of air may be
                                                     applied at the
                                                     facility boundary.
                                                     [DOE Manual 435.1-1
                                                     Ch. IV P(1)(c)].
Protection of Individuals     Design, operation,    For purposes of
 from Inadvertent Intrusion.   and closure of the    establishing limits
                               land disposal         on concentration of
                               facility must         radionuclides that
                               ensure protection     may be disposed of
                               of any individual     near-surface, an
                               inadvertently         analysis of
                               intruding into the    inadvertent human
                               disposal site and     intrusion shall use
                               occupying the site    performance
                               or contacting the     measures for
                               waste at any time     chronic and acute
                               after active          exposure scenarios
                               institutional         of 100 mrem in a
                               controls over the     year and 500 mrem
                               disposal site are     total effective
                               removed. [10 CFR      dose equivalent,
                               61.42] While a        excluding radon.
                               quantitative limit    [DOE Manual 435.1-1
                               is not specified,     Ch. IV P(2)(h)].
                               10 CFR 61 Final EIS
                               suggests dose limit
                               of 500 mrem/year
                               [NUREG-0945, NUREG-
                               1854].
Protection of individuals     Operations at the     Facilities,
 during operations.            land disposal         operations, and
                               facility must be      activities shall
                               conducted in          meet the
                               compliance with       requirements of 10
                               radiation             CFR part 835 and
                               protection            DOE Order 5400.5
                               standards set out     (superseded by
                               in 10 CFR part 20     Order 458.1) for
                               except for releases   establishing
                               of radioactivity in   acceptable dose
                               effluents from the    rates to workers
                               land disposal         and the public.
                               facility, which       [DOE Manual 435.1-1
                               shall be governed     Ch. I 1.E(13)].
                               by 10 CFR 61.41.      Worker dose shall
                               [10 CFR 61.43].       not exceed 5 rem/
                               Worker dose shall     year (10 CFR
                               not exceed 5 rem/     835.202), public
                               year (10 CFR          dose in controlled
                               20.1201) and public   area shall not
                               dose shall not        exceed 100 mrem/
                               exceed 100 mrem/      year (10 CFR
                               year (10 CFR          835.208); and
                               20.1301).             public does shall
                                                     not exceed 25 mrem/
                                                     year (DOE Order
                                                     458.1, Section
                                                     4.h(1)).
Stability of Disposal         The disposal          Disposal Facility
 Facility.                     facility must be      Closure Plans,
                               sited, designed,      includes a
                               used, operated, and   description of how
                               closed to achieve     the disposal
                               long-term stability   facility will be
                               of the disposal       closed to achieve
                               site and to           long-term stability
                               eliminate to the      and minimize the
                               extent practicable    need for active
                               the need for          maintenance
                               ongoing active        following closure
                               maintenance of the    and to ensure
                               disposal site         compliance with the
                               following closure     requirements of DOE
                               so that only          Order 5400.5,
                               surveillance,         Radiation
                               monitoring, or        Protection of the
                               minor custodial       Public and the
                               care are required.    Environment.
                               [10 CFR 61.44].       (superseded by
                                                     Order 458.1) [DOE
                                                     Manual 435.1-1 Ch.
                                                     IV Q(1)(b) and Ch.
                                                     IV M].
Composite Analysis of              --This cell      Dose at point of
 Impacts of All Sources of        intentionally      compliance from all
 Radioactive Material at a           blank--         interacting sources
 DOE site.                                           does not exceed 30
                                                     mrem per year. [DOE
                                                     Standard 5002-2017,
                                                     Section 3.2.1.].
------------------------------------------------------------------------

[FR Doc. 2019-12116 Filed 6-7-19; 8:45 am]
 BILLING CODE 6450-01-P