Assessment of Department of Energy's Interpretation of the Definition of High-Level Radioactive Waste, 72220-72225 [2021-27555]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 86, Number 242 (Tuesday, December 21, 2021)]
[Notices]
[Pages 72220-72225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27555]


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DEPARTMENT OF ENERGY


Assessment of Department of Energy's Interpretation of the 
Definition of High-Level Radioactive Waste

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Notice.

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SUMMARY: The U.S. Department of Energy (DOE) affirms its interpretation 
of the statutory term ``high-level radioactive waste'' (HLW) as defined 
in the Atomic Energy Act of 1954, as amended (AEA), and the Nuclear 
Waste Policy Act of 1982, as amended (NWPA). The HLW interpretation 
(HLWI) is consistent with the law, the best available science and data, 
and the recommendations of the Blue Ribbon Commission on America's 
Nuclear Future. In developing the HLWI, the views of members of the 
public and the scientific community were considered.

ADDRESSES: This Federal Register Notice (FRN) and other documents 
relevant to DOE's HLWI are available on the Department's website at: 
https://www.energy.gov/em/program-scope/high-level-radioactive-waste-hlw-interpretation.

FOR FURTHER INFORMATION CONTACT: James Joyce at [email protected] 
or (202) 586-5000.

SUPPLEMENTARY INFORMATION: The Secretary of Energy is committed to 
implementing the Department's environmental cleanup programs in a 
manner that is consistent with the law and that makes evidence-based 
decisions guided by the best available science and data. In early 2021, 
various stakeholders submitted both supportive and non-supportive 
letters to the Secretary of Energy regarding the HLWI. The Department 
assessed the HLWI in light of this commitment. This FRN documents the 
results of that assessment.
    As explained in this FRN, DOE affirms its interpretation of the 
statutory term ``high-level radioactive waste'' (HLW) as defined in the 
AEA \1\ and NWPA.\2\ As DOE stated in the Supplemental Notice 
Concerning U.S. Department of Energy Interpretation of High-Level 
Radioactive Waste, 84 FR 26835 (June 10, 2019, FRN) (Supplemental 
Notice), and the High-Level Radioactive Waste Interpretation Limited 
Change to DOE Manual 435.1-1, Radioactive Waste Management Manual and 
Administrative Change to DOE Order 435.1, Radioactive Waste Management, 
86 FR 5173 (January 19, 2021, FRN), DOE interprets the statutory term 
``high-level radioactive waste'' 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 safely disposed of in 
accordance with its radiological characteristics. DOE confirms that the 
HLWI is consistent with the law, the best available science and data, 
and the recommendations of the Blue Ribbon Commission on America's 
Nuclear Future. DOE further affirms that the views of the public and 
the scientific community were considered in developing the HLWI.
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    \1\ 42 U.S.C. 2011 et seq.
    \2\ 42 U.S.C. 10101 et seq.
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I. Background

    Building on the recommendations of the Blue Ribbon Commission on 
America's Nuclear Future issued in 2012,\3\ the development of the HLWI 
began in 2016 at the direction of then Secretary Moniz. The HLWI was 
finalized in 2019, and was successfully implemented on a single waste 
stream in 2020.
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    \3\ This commission was formed in 2010 by then-Secretary of 
Energy Chu at the request of President Obama to conduct a 
comprehensive review of policies for managing the back end of the 
nuclear fuel cycle and recommend a new strategy. https://www.energy.gov/ne/downloads/blue-ribbon-commission-americas-nuclear-future-report-secretary-energy.
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    The Department sought public comments on its HLWI 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, FRN). 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 comments, from a variety of stakeholders: Members 
of the public; tribal nations; members of Congress; numerous state and 
local governments; and one federal agency, the Nuclear Regulatory 
Commission (NRC). All input was important to the process and all 
comments were carefully and fully considered by DOE.
    In June 2019, after careful consideration of all comments received 
on the October 2018 FRN, DOE issued the Supplemental Notice. The 
Supplemental Notice provided additional explanation of DOE's 
interpretation as informed by public review and comment and further 
consideration by DOE following the October 2018 FRN. The Supplemental 
Notice also provided responses to significant and recurring comments 
received through the public comment process. In its Supplemental 
Notice, DOE explained its interpretation of the term HLW, as defined in 
the AEA and NWPA.\4\ DOE has the long-standing authority and 
responsibility under the AEA to ensure that all DOE radioactive waste--
including reprocessing waste--is managed and disposed of in a safe 
manner. The AEA and NWPA define HLW as:
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    \4\ The AEA and NWPA include the same definition of HLW.
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    (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 [NRC], consistent 
with existing law, determines by rule requires permanent isolation.
    42 U.S.C. 10101(12); see 42 U.S.C. 2014(dd). In Paragraph A of 42 
U.S.C. 10101(12), Congress limited the designation of HLW to those 
materials that are ``highly radioactive.'' This

[[Page 72221]]

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 reprocessing waste that is ``highly radioactive'' 
and reprocessing 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 to determine when the standards are met for reprocessing 
wastes.
    DOE has evaluated the meaning of these 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 the NRC's 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 the HLWI.
    As explained in the Supplemental Notice, DOE has both the 
scientific and technical expertise as well as the legal authority to 
interpret the term HLW in the AEA and NWPA to determine that certain of 
its reprocessing wastes are not HLW based on their radiological 
characteristics. 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. Specifically, as stated in the Supplemental 
Notice, 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.
    Reprocessing waste meeting either I or II of the criteria is non-
HLW, and--pursuant to appropriate processes--may be classified and 
disposed of in accordance with its radiological characteristics in an 
appropriate disposal facility provided all applicable requirements of 
the disposal facility are met.
    On June 10, 2019 (84 FR 26847), in determining whether and how to 
implement the HLWI specific to a particular waste stream, DOE initiated 
a public process pursuant to the National Environmental Policy Act 
(NEPA) to analyze the potential environmental impacts associated with 
disposing of up to 10,000 gallons of stabilized (grouted) Defense Waste 
Processing Facility (DWPF) recycle wastewater from the Savannah River 
Site (SRS) at a commercial low-level radioactive waste (LLW) disposal 
facility located outside of South Carolina licensed by either the NRC 
or an Agreement State. In August 2020, DOE completed an environmental 
assessment (EA) (DOE/EA-2115) and published a Finding of No Significant 
Impact (85 FR 48236). DOE applied the HLWI to a specific waste stream, 
shipping eight gallons of the SRS DWPF recycle wastewater to the Waste 
Control Specialists LLC Federal Waste Facility, a licensed commercial 
LLW facility located near Andrews, Texas, for stabilization and 
disposal as non-HLW.\5\
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    \5\ https://www.energy.gov/nepa/doeea-2115-commercial-disposal-defense-waste-processing-facility-recycle-wastewater-savannah.
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    DOE's January 19, 2021, FRN (86 FR 5173) announced a limited change 
to DOE Manual 435.1-1, Radioactive Waste Management Manual, to formally 
incorporate the Department's interpretation of the statutory definition 
of HLW. Additionally, DOE made an administrative change to DOE Order 
435.1, Radioactive Waste Management. The revised Manual includes DOE's 
interpretation of the statutory term HLW as defined in the AEA and 
NWPA.
    Pursuant to the HLWI, on January 19, 2021, DOE issued the Notice, 
Draft Environmental Assessment for the Commercial Disposal of Savannah 
River Site Contaminated Process Equipment (86 FR 5175), announcing its 
intent to prepare a draft EA (DOE/EA-2154) pursuant to NEPA to dispose 
of contaminated process equipment from SRS at a commercial LLW disposal 
facility located outside of South Carolina licensed by either the NRC 
or an Agreement State. As explained in a separate Notice of 
Availability, Draft Environmental Assessment for the Commercial 
Disposal of Savannah River Site Contaminated Process Equipment, which 
is being published in the Federal Register concurrently with this FRN, 
the draft EA analyzes capabilities for alternative disposal options 
through the use of existing, licensed, off-site commercial disposal 
facilities. The SRS contaminated process equipment would be 
characterized, stabilized as appropriate, and packaged, and if the 
waste acceptance criteria and performance objectives of a specific 
disposal facility are met, DOE could consider whether to dispose of the 
waste as LLW under the Department's interpretation of HLW.
    The process for public comment on the draft EA for the Commercial 
Disposal of Savannah River Site Contaminated Process Equipment is 
explained in the separate Notice of Availability. DOE is committed to 
robust, informed, stakeholder participation and highly encourages all 
interested individuals and organizations to further provide input to 
DOE on its implementation at SRS for this second waste stream under the 
HLWI, using that NEPA process. DOE will continue to solicit comments, 
as appropriate, on individual actions related to implementing the HLWI, 
for example, through the NEPA process.
    At this time, DOE is not proposing to implement the HLWI at any 
other site or for any other waste stream. DOE will continue 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 HLWI more broadly. Any decisions, 
however, about whether and how the interpretation will apply to

[[Page 72222]]

other wastes at any specific site and whether such waste may be managed 
as non-HLW will be the subject of subsequent actions.

II. Assessment

    After extensive policy and legal assessment, DOE affirms the HLWI 
is consistent with the law, guided by the best available science and 
data, and that the views of members of the public and the scientific 
community have been considered in its adoption. The HLWI is a science-
based tool to help further the tank waste cleanup mission across the 
country.
    In its assessment, documented below, the Department evaluated 
whether: (1) The HLWI is based on the best available science and data; 
(2) the HLWI is consistent with law; (3) the views of members of the 
public and the scientific community have been considered in adopting 
the HLWI; (4) the Department has a rigorous decision-making process in 
place to ensure future application of the HLWI to individual waste 
streams will consider--through NEPA or analogous processes (e.g., 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA))--environmental justice, protection of the environment and 
public health, impact on access to clean air and water, limit on 
exposure to hazardous chemicals and radioactive materials, and impact 
on greenhouse gas emissions and climate change, which are highlighted 
by Executive Order 13990, Protecting Public Health and the Environment 
and Restoring Science to Tackle the Climate Crisis,\6\ and (5) the 
Department has processes in place to gather input from the public and 
stakeholders, including state, local, tribal, and territorial 
officials, scientists, labor unions, environmental advocates, and 
environmental justice organizations during future applications of HLWI 
to individual waste streams.
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    \6\ Executive Order 13990 states it is the Administration's 
policy ``to listen to the science; to improve public health and 
protect our environment; to ensure access to clean air and water; to 
limit exposure to dangerous chemicals and pesticides; to hold 
polluters accountable, including those who disproportionately harm 
communities of color and low-income communities; to reduce 
greenhouse gas emissions; to bolster resilience to the impact of 
climate change; to restore and expand our national treasures and 
monuments; and to prioritize both environmental justice and the 
creation of the well-paying union jobs necessary to deliver on these 
goals.''
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    (1) The HLWI is based on the best available science and data.
    Waste characteristics, and not the origin or source of a waste, 
determine the corresponding risks to workers, the public, and the 
environment. Current DOE management practices are generally based on 
waste characteristics (which determines risk) and not solely origin or 
source (which does not determine risk). The waste characteristics are 
based on rigorous sampling and analysis and documented in accordance 
with strict quality assurance standards.
    DOE implements the HLWI through well-established statutes, 
regulations, requirements and policies included but not limited to:
     AEA and NWPA;
     Regulation and oversight of nuclear waste disposal 
facilities:
    [cir] LLW: 10 Code of Federal Regulations (CFR) part 61, Licensing 
Requirements for Land Disposal of Radioactive Waste;
    [ssquf] All commercial disposal facilities must be designed, 
constructed, operated and closed to meet relevant safety standards.
    [ssquf] Commercial LLW disposal facilities are licensed by either 
NRC or Agreement States under 10 CFR part 61.
    [cir] Transuranic waste generated from atomic energy defense 
activities:
    [ssquf] 40 CFR part 191, Environmental Radiation Protection 
Standards for Management and Disposal of Spent Nuclear Fuel, High-Level 
and Transuranic Radioactive Wastes;
    [ssquf] 40 CFR part 194, Criteria for the Certification and Re-
Certification of the Waste Isolation Pilot Plant's Compliance with the 
40 CFR part 191 Disposal Regulations;
     CERCLA;
     Resource Conservation and Recovery Act (RCRA);
     NEPA; and
     DOE Order 144.1, Department of Energy Tribal Government 
Interactions and Policy.
    Disposal of reprocessing waste based on radiological 
characteristics versus its source is a science-based approach as 
demonstrated by:
     Recommendations by the Blue Ribbon Commission on America's 
Nuclear Energy Future, tasked by then-Secretary of Energy Chu, at the 
request of President Obama (2012),\7\ which concluded 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.'' The Blue Ribbon Commission 
also 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.''
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    \7\ https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf.
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     Affirmation from six National Laboratories: ``The national 
laboratories have reviewed the proposal and support the revised 
interpretation based on its technical attributes and potential complex-
wide benefits. . . . We believe that classification of reprocessing 
waste for disposal based on radiological risk provides the best path to 
accelerating the safe long-term stabilization and disposition of a wide 
variety of waste streams and provides immediate benefit to the health 
and safety of the worker, communities, and environment across the 
complex.'' \8\
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    \8\ Letter from the Directors of the Savannah River National 
Laboratory, Idaho National Laboratory, Sandia National Laboratories, 
Pacific Northwest National Laboratory, Los Alamos National 
Laboratory, and Oak Ridge National Laboratory to the Secretary of 
Energy, dated March 25, 2019.
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     International guidelines for management and disposal of 
radioactive waste, i.e., International Atomic Energy Agency Safety 
Series, Classification of Radioactive Waste, Report No. 111-G-1.1, 
Vienna (1994).
     NRC's public comments on the HLWI; NRC staff ``agree with 
the concept proposed [in the October 2018 FRN] that radioactive waste 
may be classified and disposed of in accordance with its radiological 
characteristics.''
     Numerous other independent reports, e.g., Massachusetts 
Institute of Technology, The Future of the Nuclear Fuel Cycle, An 
Interdisciplinary MIT Study (2011), National Research Council, Risk and 
Decisions About Disposition of Transuranic and High-Level Radioactive 
Waste (2005), Government Accountability Office (GAO), GAO-17-317, High 
Risk Series--Progress on Many High-Risk Areas, While Substantial 
Efforts Needed on Others (2017), Energy Communities Alliance, Waste 
Disposition: A New Approach to DOE's Waste Management Must Be Pursued 
(2017).\9\
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    \9\ https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf.
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    Lastly, the HLWI is consistent with how wastes from non-
reprocessing sources (e.g., decontamination and decommissioning, 
environmental restoration) are classified. It does not change existing 
requirements for protectiveness of human health, the

[[Page 72223]]

environment and workers (i.e., waste disposal must comply with 
performance objectives, waste acceptance criteria, license conditions/
permits, and all other existing applicable requirements).
    In summary, implementation of the HLWI is based on waste 
characterization and analysis performed in accordance with rigorous 
quality assurance requirements; is consistent with the existing 
framework of statutes, regulations, and policies, including NEPA, RCRA, 
and CERCLA; is consistent with the recommendations of, or has been 
affirmed by, highly technical and influential organizations such as the 
Blue Ribbon Commission on America's Nuclear Energy Future, six National 
Laboratories, the International Atomic Energy Agency, the NRC staff, 
and independent technical reports.
    (2) The HLWI is consistent with law.
    DOE affirms the detailed explanation of the Department's legal 
authority to issue and implement the HLWI set forth in the Supplemental 
Notice. Two general points from the Supplemental Notice warrant 
emphasis here.
    First, DOE's interpretation is consistent with the plain language 
of the HLW definition in the AEA and NWPA. As discussed in the 
``Background'' section of this FRN and further explained in the 
Supplemental Notice, the statutory text in Paragraph A of the HLW 
definition \10\ indicates that not all reprocessing waste is HLW. The 
adverb, ``highly,'' modifies ``radioactive,'' which indicates that the 
degree of radioactivity is relevant to the definition. If certain 
reprocessing waste is not ``highly'' radioactive, such waste would be 
excluded from the definition of HLW. Further, the use of ``highly'' 
suggests that there should be a threshold for the level of 
radioactivity because even ``moderately'' radioactive material would 
not qualify. The phrase ``sufficient concentrations'' likewise 
indicates that there must be a concentration level that would be 
``insufficient,'' and material with concentrations of fission products 
below that level would not be HLW. Neither the AEA nor the NWPA define 
the phrases ``highly radioactive'' or ``sufficient concentrations.'' 
These phrases are inherently ambiguous and necessarily require an 
exercise of interpretative judgment by DOE--the agency charged with 
``provid[ing] 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. 2123(a)(3), 5814, 
7151(a).
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    \10\ 42 U.S.C. 10101(12); see also 42 U.S.C. 2014(dd).
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    DOE's view is that the appropriate dividing line between 
reprocessing waste that is ``highly radioactive'' and waste that is 
not, and between reprocessing waste that contains fission products in 
``sufficient concentrations'' and waste that does not, is based on the 
risk the waste poses--specifically, whether or not the waste can be 
disposed of safely in an existing facility that is not a deep geologic 
repository. As reflected in the NWPA, deep geologic disposal is the 
internationally recognized and technically viable means to provide the 
long-term isolation necessary to safely dispose of waste that, 
according to the NRC, has historically been described as HLW--waste 
that contains both highly concentrated short-lived radionuclides and 
long-lived radionuclides. Because not all radioactive wastes include 
this combination of radionuclides, the NRC has established a regulatory 
framework in 10 CFR part 61 that differentiates wastes based on their 
radiological characteristics.\11\ This framework allows lower-risk 
wastes to be disposed of in facilities that are not deep geologic 
repositories, so long as stringent technical requirements to protect 
public health and the environment are met.
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    \11\ 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.
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    Second, DOE's interpretation is a reasonable and appropriate 
exercise of the Department's authority to protect human health and the 
environment.\12\ The interpretation is informed by DOE's significant 
historical knowledge, experience, and technical expertise in safely 
managing reprocessing and other radioactive wastes resulting from the 
United States' defense program and government-sponsored nuclear energy 
research. Among other things, the interpretation incorporates the well-
established principles and standards of the NRC's regulatory framework 
for the disposal of LLW, and--as discussed previously--it is consistent 
with the recommendations of, or has been affirmed by, highly technical 
and influential organizations such as the Blue Ribbon Commission on 
America's Nuclear Energy Future, six National Laboratories, the 
International Atomic Energy Agency, the NRC staff, and independent 
technical reports.
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    \12\ See, e.g., AEA Sec.  91(a)(3), 42 U.S.C. 2121(a)(3); AEA 
Sec.  161(b), 42 U.S.C. 2201(b).
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    (3) The views of members of the public and the scientific community 
have been considered in adopting the HLWI.
    During the development of the HLWI, DOE provided opportunities to 
interested parties and stakeholders for meaningful input/comment. DOE 
issued its HLWI in the Federal Register in October 2018 for a 60-day 
period and extended it for an additional 30 days. Approximately 5,555 
comments were received from citizens, federal and state regulatory 
agencies, lawmakers, tribal nations, scientific and environmental 
organizations, and state and local governments. Each of these comments 
was carefully considered by DOE in development of the HLWI criteria and 
DOE published the responses to comments by major topic in the 
Supplemental Notice. For example, in response to NRC's comment, DOE 
modified the interpretation's first criterion by adding the requirement 
that waste at or below Class C LLW limits must also meet the 
performance objectives of a disposal facility. In response to comments 
by other stakeholders concerning the propriety of DOE determining for 
itself what is HLW and non-HLW, DOE explained that Congress had 
assigned DOE this role through the AEA, and that DOE is accountable to 
a number of external regulatory, oversight, and technical standards 
entities including the NRC, Defense Nuclear Facilities Safety Board, 
U.S. Environmental Protection Agency, state agencies, as well as the 
National Council on Radiation Protection and Measurements and 
International Commission on Radiological Protection.
    Throughout this process, as requested, DOE officials met with state 
and federal officials, tribal nation representatives, industry, and 
other stakeholders, as well as provided briefings at multiple 
stakeholder forums.
    (4) The Department has a rigorous decision-making process in place 
to ensure future application of the HLWI to individual waste streams 
will consider--through NEPA or analogous processes (e.g., CERCLA)--
environmental justice, protection of the environment and public health, 
impact on access to clean air and water, limit on exposure to hazardous 
chemicals and radioactive materials, and impact on greenhouse gas 
emissions and climate

[[Page 72224]]

change, which are highlighted by Executive Order 13990, Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis.
    The integrity of the federal decision-making is ensured by DOE's 
compliance with the existing framework of statutes, regulations, and 
policies, including, but not limited to, NEPA, RCRA, and CERCLA; DOE's 
transparent processes (e.g., public input through NEPA and technical 
documents); and independent oversight by NRC and/or Agreement States 
through every phase of radioactive waste management and disposal at 
commercial facilities. The HLWI complies with Administration policies, 
as outlined in Executive Order 13990.
     Environmental justice: Application of the HLWI could 
remove reprocessing waste from the states and proximities to tribal 
nations and other Native American communities where it has been stored 
for decades and provide for the disposal of these wastes in facilities 
constructed and regulated for such purposes. Environmental justice 
issues are evaluated as part of DOE's NEPA process. In accordance with 
Executive Order 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations, DOE is required to 
identify and address the disproportionately high and adverse human 
health or environmental effects of its actions on minority and low-
income populations, to the greatest extent practicable and permitted by 
law.
     Protection of the environment and public health: 
Application of the HLWI could reduce the length of time that 
radioactive waste is stored on-site at DOE facilities, increasing 
safety for workers, the public, and the environment. For off-site 
commercial disposal of reprocessing waste determined to be non-HLW, 
federal requirements (10 CFR part 61) to protect human health and the 
environment are embedded in the NRC and Agreement State's design, 
permitting and operations license conditions. DOE must comply with the 
existing NRC and Agreement State regulatory framework and federal laws 
(e.g., CERCLA) before any waste can be disposed including evaluating 
waste acceptance criteria and impacts on performance objectives of 
disposal facilities, preparing or revising permits and obtaining 
regulatory approvals, and coordinating with stakeholders. For 
commercial facilities, the NRC or the Agreement State provides 
oversight through every phase of LLW management and disposal. In no 
case would the HLWI abrogate DOE's responsibilities under 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.
     Impact on access to clean air and water: Application of 
the HLWI to a specific waste stream would comply with the Clean Air 
Act, Clean Water Act, and other federal regulations for protection of 
clean air and water. Potential impacts to air and water are evaluated 
under NEPA. Primary sources of air pollutants, including hazardous air 
pollutants, are identified and assessed during the NEPA evaluation for 
each of the alternatives. Impacts on groundwater quality, potential 
impacts to stormwater runoff, stream quality, wetlands quality, etc. 
are identified and assessed during the NEPA evaluation for each of the 
alternatives.
     Limit on exposure to hazardous chemicals and radioactive 
materials: \13\ Application of the HLWI to a specific waste stream 
would comply with the AEA, NWPA, CERCLA, RCRA, and other federal 
regulations for protection of human health and environment. Potential 
impacts due to exposures to hazardous chemicals and radioactive 
materials as a result of reprocessing waste being determined to be non-
HLW are evaluated as part of the NEPA process. The NEPA evaluation 
identifies any special precautions needed to transport hazardous 
materials, if required, as part of the proposed action or alternatives 
and identifies any on-site treatment, engineering, or administrative 
controls that may be applied to the hazardous and radioactive waste 
encountered.
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    \13\ Executive Order 13990 uses the terms ``dangerous chemicals 
and pesticides.'' DOE's assessments focus on hazardous materials, 
hazardous substances, hazardous wastes, and radiological materials, 
depending on the context.
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     Potential impacts on greenhouse gas emissions and climate 
change: Potential greenhouse gas emissions and potential impacts to 
climate change would be evaluated consistent with Council on 
Environmental Quality (CEQ) and DOE NEPA regulations.
    (5) The Department has processes in place to gather input from the 
public and stakeholders, including state, local, tribal, and 
territorial officials, scientists, labor unions, environmental 
advocates, and environmental justice organizations during future 
applications of HLWI to individual waste streams.
    The Department has robust, formal public review and comment 
processes--such as those under NEPA, RCRA, and CERCLA--that provide 
additional opportunities for public participation on potential future 
applications of the HLWI. Informed stakeholder participation, including 
members of the environmental justice community, in DOE clean-up 
decisions is required by these statutes and environmental regulations 
and policies. Additionally, DOE Order 144.1, Department of Energy 
Tribal Government Interactions and Policy, requires government-to-
government consultations with affected tribal nations to ensure that 
tribal rights, including concerns regarding cultural resources 
management, are considered in clean-up decisions.
     Public participation requirements for DOE NEPA activities 
are specified in 40 CFR 1500-1508 and 10 CFR part 1021. All Federal 
agencies are required to provide meaningful opportunities for public 
participation.
     RCRA implementing regulations (e.g., 40 CFR parts 124 and 
270), as administered by the U.S. Environmental Protection Agency and 
state regulatory agencies, requires public participation during the 
hazardous waste permitting process (e.g., permit to remove and treat 
tank mixed waste) and during the site corrective action program (e.g., 
tank closures) and DOE follows these requirements. The RCRA Public 
Participation Manual describes the many public participation activities 
required by federal RCRA permitting regulations.
     CERCLA, as implemented by the National Contingency Plan, 
requires specific community involvement activities be undertaken at 
certain points throughout the Superfund process (40 CFR 
300.430(c)(2)(ii)), and DOE follows these requirements. The CERCLA 
program requires public participation, and the Superfund Community 
Involvement Handbook describes community involvement activities during 
Superfund response actions (see, e.g., Chapter 4).
     DOE Order 144.1, Department of Energy Tribal Government 
Interactions and Policy, communicates departmental, programmatic, and 
field responsibilities for interacting with tribal nations. It provides 
direction to all departmental officials, staff, and contractors 
regarding fulfillment of trust obligations and other responsibilities 
arising from departmental actions which may potentially impact American 
Indian and Alaska Native traditional, cultural, and religious values 
and practices; natural resources; treaty and other federally recognized 
and reserved rights. DOE conducts government-to-government 
consultations with affected tribal nations to ensure that tribal 
rights, including concerns regarding cultural resources management, are 
considered in clean-up decisions, in accordance

[[Page 72225]]

with DOE Order 144.1. DOE also coordinates and considers the views from 
other Native American communities.
    Additionally, DOE has other mechanisms to ensure robust, informed 
stakeholder participation that includes frequent interactions with 
citizens advisory boards, intergovernmental groups, federal and state 
regulators, congressional staff, and others. These interactions promote 
transparency and public involvement. DOE sites also use communications 
tools that include, but are not limited to, townhall meetings, website 
calendars, online collaboration and informational meetings, reading 
rooms, and press releases.
    The established process to apply the HLWI to a specific waste 
stream is exemplified by the successful model used for SRS DWPF recycle 
wastewater. This process provided opportunities for stakeholder 
involvement and feedback throughout the project. Multiple entities such 
as Energy Communities Alliance, SRS Community Reuse Organization, and 
the National Governors Association have provided DOE with positive 
feedback on its availability of public information and its willingness 
to discuss and explain the HLWI publicly. Although not required by CEQ 
and DOE NEPA regulations for EAs, the process included making the draft 
EA available for public comment, holding informational meetings and 
webinars on the draft and final EAs, preparing and making available 
fact sheets, and including a Comment Response Document in the final EA. 
The supporting technical documents, including sampling data and other 
information demonstrating that the proposed waste disposal meets the 
disposal facility waste acceptance criteria and performance objectives 
for protection of human health and the environment, have been made 
available to the public and included in public outreach briefings.

Signing Authority

    This Department of Energy document was signed on December 15, 2021, 
by William I. White, Senior Advisor for Environmental Management, 
pursuant to delegated authority from the Secretary of Energy. That 
document with the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed at Washington, DC, on December 16, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-27555 Filed 12-20-21; 8:45 am]
BILLING CODE 6450-01-P