83 FR 50909 - Request for Public Comment on the U.S. Department of Energy Interpretation of High-Level Radioactive Waste

DEPARTMENT OF ENERGY

Federal Register Volume 83, Issue 196 (October 10, 2018)

The U.S. Department of Energy (DOE or the Department) provides this Notice and request for public comment on its interpretation of the definition of the statutory term ``high-level radioactive waste'' (HLW) as set forth in the Atomic Energy Act of 1954 and the Nuclear Waste Policy Act of 1982. This statutory term indicates that not all wastes from the reprocessing of spent nuclear fuel (``reprocessing wastes'') are HLW, and 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.

[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Notices]
[Pages 50909-50911]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22002]


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DEPARTMENT OF ENERGY


Request for Public Comment on the U.S. Department of Energy 
Interpretation of High-Level Radioactive Waste

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

ACTION: Notice of public comment period.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) provides 
this Notice and request for public comment on its interpretation of the 
definition of the statutory term ``high-level radioactive waste'' (HLW) 
as set forth in the Atomic Energy Act of 1954 and the Nuclear Waste 
Policy Act of 1982. This statutory term indicates that not all wastes 
from the reprocessing of spent nuclear fuel (``reprocessing wastes'') 
are HLW, and 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.

DATES: DOE invites stakeholders to submit written comments on its 
interpretation. The 60-day public comment period begins on October 10, 
2018 and ends on December 10, 2018. Only comments received through one 
of the methods described below will be accepted. DOE will consider all 
comments received or postmarked by December 10, 2018.

ADDRESSES: Please direct comments to:
    (a) Email: Send comments to [email protected]. Please submit 
comments in MicrosoftTM Word, or PDF file format, and avoid 
the use of encryption.
    (b) Mail: Send to the following address: Theresa Kliczewski, 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.

FOR FURTHER INFORMATION CONTACT: Theresa Kliczewski at 
[email protected] or at 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: 
(202) 586-3301.

SUPPLEMENTARY INFORMATION: 

A. Background

    DOE manages large inventories of legacy waste resulting from spent 
nuclear fuel (SNF) reprocessing activities from atomic energy defense 
programs, e.g., nuclear weapons

[[Page 50910]]

production. DOE also manages a small quantity of vitrified waste from a 
demonstration of commercial SNF reprocessing. Reprocessing generally 
refers to the dissolution of irradiated SNF in acid, generating liquid 
or viscous wastes, and the chemical processing to separate the fission 
products or transuranic elements of the SNF from the desired elements 
of plutonium and uranium, which are recovered for reuse. Liquid 
reprocessing wastes have been or are currently stored in large 
underground tanks at three DOE sites: Savannah River Site (SRS) (South 
Carolina), Idaho National Laboratory (INL) (Idaho), and the Office of 
River Protection at the Hanford Site (Washington). Solid reprocessing 
wastes are liquid wastes that have been immobilized in solid form and 
are currently stored at SRS, INL, and the West Valley Demonstration 
Project (New York).
    DOE's interpretation of HLW is that reprocessing waste is non-HLW 
if the waste:

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; 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 regulatory requirements.

    Under DOE's interpretation, waste meeting either of these criteria 
is non-HLW and may be classified and disposed of in accordance with its 
radiological characteristics.
    At this time, DOE is not making--and has not made--any decisions on 
the disposal of any particular waste stream. Disposal decisions, when 
made, will be based on the consideration of public comments in response 
to this Notice and prior input and consultation with appropriate state 
and local regulators and stakeholders. 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.

B. High-Level Waste Interpretation

    DOE interprets the term ``high-level radioactive waste'', as stated 
in the Atomic Energy Act of 1954 as amended (AEA),\1\ and the Nuclear 
Waste Policy Act of 1982 as amended (NWPA) \2\ 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 their ability to 
meet appropriate disposal facility requirements. The basis for DOE's 
interpretation comes from the AEA and NWPA definition of HLW:

    \1\ 42 U.S.C. 2011 et seq. This definition of HLW was first 
enacted in the Nuclear Waste Policy Act of 1982, as amended, and 
incorporated into the AEA in 1988.
    \2\ 42 U.S.C. 10101 et seq.

    (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.\3\
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    \3\ 42 U.S.C. 10101(12)(A), (B).

    In paragraph A, Congress limited HLW to those materials that are 
both ``highly radioactive'' and ``resulting from the reprocessing of 
spent nuclear fuel.'' Reprocessing generates liquid wastes, with the 
first cycle of reprocessing operations containing the majority of the 
fission products and transuranic elements removed from the SNF. Thus, 
in paragraph A, Congress distinguished HLW with regard to its form as 
both ``liquid waste produced directly in reprocessing'' and ``any solid 
material derived from such liquid waste that contains fission products 
in sufficient concentrations.''
    In paragraph B, Congress defined HLW also to include ``other highly 
radioactive material'' that the Nuclear Regulatory Commission (NRC) 
determines by rule ``requires permanent isolation.'' HLW under 
paragraph B includes highly radioactive material regardless of whether 
the waste is from reprocessing or some other activity. Further, under 
paragraph B, classification of material as HLW is based on its 
radiological characteristics and whether the material requires 
permanent isolation.
    The common element of these statutory paragraphs defining HLW is 
the requirement and recognition that the waste be ``highly 
radioactive.'' Additionally, both paragraphs reflect a primary purpose 
of the NWPA, which is to define 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.
    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 waste 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 these 
standards are met. Given Congress' intent that not all reprocessing 
waste is HLW, it is appropriate for DOE to use its expertise to 
interpret the definition of HLW, consistent with proper statutory 
construction, to distinguish waste that is non-HLW from waste that is 
HLW.
    The DOE interpretation is informed by the radiological 
characteristics of reprocessing waste and whether the waste can be 
disposed of safely in a facility other than a deep geologic repository. 
This interpretation is based upon the principles of the NRC's 
regulatory structure for the disposal of low-level radioactive wastes. 
\4\
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    \4\ NRC licensing requirements for the land disposal of LLW, 
originally promulgated in 1962, are codified in Part 61 of the Code 
of Federal Regulations, 10 CFR part 61.
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    In its regulations, NRC has identified four classes of low-level 
radioactive waste (LLW)--Class A, B or C--for which near-surface 
disposal is safe for public health and the environment, and greater-
than-Class C LLW for which near-surface disposal may be safe for public 
health and the environment. 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. 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. The 
need for disposal in a deep geologic repository results from a 
combination of two radiological characteristics of the waste: High 
activity radionuclides, including fission products, which generate high 
levels of radiation; and long-lived radionuclides which, if not 
properly disposed of, would present a risk to human health and the 
environment for hundreds of thousands of years.
    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,

[[Page 50911]]

radionuclide concentrations greater than the Class C limits. 
Reprocessing waste that does not exceed the Class C limits is non-HLW.
    DOE interprets ``sufficient concentrations'' in the statutory 
context in which the definition was enacted, which, as discussed above, 
is focused on protecting the public and the environment from the 
hazards posed by nuclear waste. In addition to the characteristics of 
the waste itself, the risk that reprocessing waste poses to human 
health and the environment depends on the physical characteristics of 
the disposal facility and that facility's ability to safely isolate the 
waste from the human environment. Relevant characteristics of a 
disposal facility may include the depth of disposal, use of engineered 
barriers, and geologic, hydrologic, and geochemical features of the 
site. Taking these considerations into account, it is reasonable to 
interpret ``sufficient concentrations'' to mean concentrations of 
fission products in combination with long-lived radionuclides that 
would require disposal in a deep geologic repository.
    Accordingly, under DOE's interpretation, solid waste that exceeds 
the NRC's Class C limits would be subject to detailed characterization 
and technical analysis of the radiological characteristics of the 
waste. This, combined with the physical characteristics of a specific 
disposal facility and the method of disposal, would determine whether 
the facility could meet its performance objectives, and if the waste 
can be disposed of safely. This approach would be governed by the waste 
characterization and analysis process and performance objectives for 
the disposal facility established by the applicable regulator, and 
thereby protective of human health and the environment.
    The DOE interpretation does not require the removal of key 
radionuclides to the maximum extent that is technically and 
economically practical before DOE can define waste as non-HLW. 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 
has determined that the removal of radionuclides from waste that 
already meets existing legal and technical requirements for safe 
transportation and disposal is unnecessary and inefficient, and does 
not benefit human health or the environment. To the contrary, it 
potentially presents a greater risk to human health and the environment 
because it prolongs the temporary storage of waste.
    Therefore, under DOE's interpretation, waste resulting from the 
reprocessing of SNF is non-HLW if the waste:

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; 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 regulatory requirements.


    Reprocessing waste meeting either I or II of the above is non-HLW, 
and 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.

C. Request for Comments

    The Department specifically requests comments on its interpretation 
that reprocessing waste meeting either of the two criterion stated 
above is non-HLW. This Notice is intended to solicit public feedback on 
the DOE interpretation to better understand stakeholder perspectives 
prior to appropriate input and consultation with affected state and 
local regulators and any waste disposal classification decisions.
    The Department will consider all comments received during the 
public comment period, and modify its proposed approach, as 
appropriate, based on public comment.

    Signed at Washington, DC, on October 4, 2018.
Anne Marie White,
Assistant Secretary for Environmental Management.
[FR Doc. 2018-22002 Filed 10-9-18; 8:45 am]
 BILLING CODE 6450-01-P