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Decommissioning Criteria for the West Valley Demonstration Project (M-32) at the West Valley Site

[Federal Register: February 1, 2002 (Volume 67, Number 22)]
[Notices]
[Page 5003-5012]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe02-99]

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NUCLEAR REGULATORY COMMISSION


Decommissioning Criteria for the West Valley Demonstration
Project (M-32) at the West Valley Site; Final Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Final policy statement.

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SUMMARY: On December 3, 1999 (64 FR 67952), the Commission issued, for
public comment, a draft policy statement that would approve the
application of the U.S. Nuclear Regulatory Commission's (NRC's) License
Termination Rule (LTR), as the decommissioning criteria for the West
Valley Demonstration Project (WVDP) at the West Valley site. It also
held a public meeting, on January 5, 2000, to solicit public comment on
the draft. This final policy statement was developed after considering
public comments on the draft, and continues to apply the LTR as the
criteria for the WVDP at the West Valley site.

EFFECTIVE DATE: February 1, 2002.

FOR FURTHER INFORMATION, CONTACT: Chad Glenn, Office of Nuclear
Material Safety and Safeguards, Mail Stop T-8F37, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background (Draft Policy Statement)
III. Overview of Public Comments
IV. Summary of Public Comments and Responses to Comments
    A. Comments on the LTR
    B. Comments on LTR guidance
    C. Comments on implementing the LTR
    D. Comments on NRC's process for prescribing the decommissioning
criteria
    E. Comments on jurisdictional aspects of prescribing the
decommissioning criteria
    F. Comments on the use of incidental waste criteria at the West
Valley site
    G. Comments related to how the site should be decommissioned
    H. Comments on the wording of the draft policy statement
    I. Other comments
V. Final Policy Statement

I. Introduction

    This final policy statement is being issued under the authority of
the WVDP Act, to prescribe decommissioning criteria for the WVDP.

II. Background (Draft Policy Statement)

    From 1966 to 1972, under an Atomic Energy Commission (AEC) license,
Nuclear Fuel Services (NFS) reprocessed 640 metric tons of spent fuel
at its West Valley, New York, facility--the only commercial spent fuel
reprocessing plant in the U.S. The facility shut down, in 1972, for
modifications to increase its seismic stability and to expand its
capacity. In 1976, without restarting the operation, NFS withdrew from
the reprocessing business and returned control of the facilities to the
site owner, the New York State Energy Research and Development
Authority (NYSERDA). The reprocessing activities resulted in about 2.3
million liters (600,000 gallons) of liquid high-level waste (HLW)
stored below ground in tanks, other radioactive wastes, and residual
radioactive contamination.
    The West Valley site was licensed by AEC, and then NRC, until 1981,
when the license was suspended to execute

[[Page 5004]]

the 1980 WVDP Act, Pub. L. 96-368.\1\ The WVDP Act authorized the U.S.
Department of Energy (DOE), in cooperation with NYSERDA, the owner of
the site and the holder of the suspended NRC license, to: (1) Carry out
a liquid-HLW management demonstration project; (2) solidify, transport,
and dispose of the HLW that exists at the site; (3) dispose of low-
level waste (LLW) and transuranic waste produced by the WVDP, in
accordance with applicable licensing requirements; and (4)
decontaminate and decommission facilities used for the WVDP, in
accordance with requirements prescribed by NRC. NYSERDA is responsible
for all site facilities and areas outside the scope of the WVDP Act.
Although NRC suspended the license covering the site until completion
of the WVDP, NRC has certain authorities, under the WVDP Act, that
include prescribing decommissioning criteria for the tanks and other
facilities in which the HLW solidified under the project was stored,
the facilities used in the solidification of the waste, and any
material and hardware used in connection with the WVDP. It should also
be noted that DOE is not an NRC licensee and DOE's decommissioning
activities for the WVDP at the West Valley site are conducted under the
WVDP Act and not the Atomic Energy Act (AEA).
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    \1\ The State of New York licenses a low-level waste disposal
area at the West Valley site. Unless otherwise indicated, the terms
``West Valley site'' or ``site'' used in this Policy Statement
refers to the NRC-licensed portions of the site.
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    The WVDP is currently removing HLW from underground tanks at the
site, vitrifying it, and storing it onsite for eventual offsite
disposal in a Federal repository. The vitrification operations are
nearing completion. In addition to the vitrified HLW, the WVDP
operations have also produced LLW and transuranic waste which, under
the Act, must be disposed of in accordance with applicable licensing
requirements. Besides the HLW at the site, the spent fuel reprocessing
and waste disposal operations resulted in a full range of buried
radioactive wastes and structural and environmental contamination at
the site.
    In 1989, DOE and NYSERDA began to develop a joint Environmental
Impact Statement (EIS) for project completion and site closure, and to
evaluate waste disposal and decommissioning alternatives. Because the
WVDP Act authorizes NRC to prescribe decommissioning criteria for the
project, NRC and DOE agreed on NRC's participation as a cooperating
agency on the EIS, with DOE and NYSERDA, to aid NRC in its decision on
decommissioning criteria. The draft EIS was published in 1996.
Subsequently, DOE decided to descope this EIS into two separate EISs to
address: (1) Near-term decontamination and waste management at the
WVDP; and (2) decommissioning, long-term monitoring, and stewardship of
the site.\2\ The NRC will not be a Cooperating Agency on the
decontamination and waste management EIS because the Commission is not
prescribing criteria for decontamination activities considered in this
EIS. The NRC will be a Cooperating Agency on the EIS for
decommissioning under the WVDP Act. The WVDP Act does not address
license termination of the NRC license for the site, or portions
thereof. Any such license termination will be conducted (if license
termination is possible and pursued) under the Atomic Energy Act (AEA)
of 1954, as amended. If NYSERDA pursues either full or partial license
termination of the NRC license, NRC will need to conduct an
environmental review to determine if an EIS is necessary to support
license termination.
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    \2\ 66 FR 16447 (March 26, 2001).
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    After public review of the draft EIS, the WVDP convened the West
Valley Citizen Task Force (CTF), in early 1997, to obtain stakeholder
input on the EIS. The CTF recommendations for the preferred alternative
in the EIS were completed in July 1998. In the latter half of 1997
(during the period that the CTF was working on its recommendations),
NRC's LTR was published (62 FR 39058; July 21, 1997).
    The Commission published a draft policy statement on
decommissioning criteria for the WVDP at the West Valley site, for
public comment, and a notice of a public meeting in the Federal
Register on December 3, 1999 (64 FR 67952).\3\ The public meeting, to
solicit public comment on the draft, was held on January 5, 2000. As a
result of that meeting, the Commission extended the comment period to
April 1, 2000. This final policy statement was developed after
considering the public comments on the draft. This final policy
statement recognizes that a flexible approach to decommissioning is
needed both to ensure that public health and safety and the environment
are protected and to define a practical resolution to the challenges
that are presented by the site. In that regard, the Commission has
decided to prescribe the LTR criteria for the WVDP at the West Valley
site, reflecting the fact that the applicable decommissioning goal for
the entire NRC-licensed site is compliance with the requirements of the
LTR. However, the Commission recognizes that health and safety and
cost-benefit considerations may justify the evaluation of alternatives
that do not fully comply with the LTR criteria. For example, the
Commission would consider an exemption allowing higher limits for doses
on a failure of institutional control if it can be rigorously
demonstrated that protection of the public health and safety for future
generations could be reasonably assured through more robust engineered
barriers and/or increased long-term monitoring and maintenance. The
Commission is prepared to provide flexibility to assure cleanup to the
maximum extent technically and economically feasible.
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    \3\ Before issuing the draft policy statement for comment, the
NRC staff proposed decommissioning criteria for West Valley to the
Commission in a Commission Paper entitled ``Decommissioning Criteria
for West Valley,'' dated October 30, 1998 (SECY-98-251). On January
12, 1999, the Commission held a public meeting, on SECY-98-251, to
obtain input from interested parties. Based on the results from this
meeting, the Commission issued a Staff Requirements Memorandum
(SRM), on January 26, 1999, requesting additional information on the
staff's proposed decommissioning criteria for West Valley. In
response to the January 26, 1999, SRM, the staff provided SECY-99-
057, to the Commission, entitled ``Supplement to SECY-98-251,
`Decommissioning Criteria for West Valley.' '' Based on the contents
of SECY-98-251, SECY-99-057, and written and oral comments from
interested parties, the Commission issued an SRM on June 3, 1999,
detailing its decisions on the decommissioning criteria for West
Valley.
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    It should be noted that the subpart E of 10 CFR part 20 (LTR) does
contain provisions for alternate criteria and subpart N of 10 CFR part
20 contains provisions for potential exemptions,\4\ with both
alternatives based on a site-specific analysis which demonstrates that
public health and safety will be adequately protected with reasonable
assurance. If the NRC license cannot be terminated in a manner which
provides reasonable assurance of adequate protection of the public
health and safety, then the appropriate Commission action may be to
require a long term or even a perpetual license for an appropriate
portion of the site until, if and when possible, an acceptable
alternative is developed to permit actual license termination.\5\
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    \4\ Exemptions to NRC regulations can be issued to NRC licensees
if the Commission determines that the exemption is authorized by law
and would not result in undue hazard to life or property. NYSERDA is
the licensee for the West Valley site and DOE is acting as a
surrogate for NYSERDA until the NYSERDA license is reinstated at the
end of the WVDP.
    \5\ If a long term or perpetual license is necessary for any
portion of the site, it is the Commission's intent that that portion
of the site will be decontaminated in the interim to the extent
technically and/or economically feasible. In addition, if a long-
term or perpetual license is determined to be appropriate, the NRC
takes no position on which entity should be the long-term licensee
as that decision, as well as decisions regarding long term financial
contributions, should be made pursuant to negotiations involving
DOE, New York, and possibly the U.S. Congress. Also, under the WVDP
Act, the NRC is only addressing the public health and safety aspects
of decommissioning selected portions of the site. Other potential
issues between DOE and NYSERDA concerning the West Valley Site are
not within NRC's authority to resolve.

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[[Page 5005]]

    Based on the public comments received, the Commission has revisited
the issue of ``incidental waste'' at West Valley. The Commission has
decided to issue incidental waste criteria to clarify the status of and
classify any residual wastes present after cleaning of the high-level
radioactive waste (HLW) tanks at West Valley. Previously, the NRC has
provided advice to DOE concerning DOE's classification of certain waste
as incidental waste for clean-up of HLW storage tanks at both Hanford
and Savannah River. As noted above, NRC intends to apply the LTR
decommissioning criteria as the decommissioning goal for the entire
NRC-licensed portion of the site. The Commission has decided that the
most recent advice provided to DOE for the classification of incidental
waste at Savannah River, with some additional modifications, provides
the appropriate criteria which should be applied to West Valley.
Specifically, the Commission is now providing the following criteria
for classification of the incidental waste (which will not be deemed to
be HLW) at West Valley:
    (1) The waste should be processed (or should be further processed)
to remove key radionuclides to the maximum extent that is technically
and economically practical; and
    (2) The waste should be managed, so that safety requirements
comparable \6\ to the performance objectives in 10 CFR part 61 subpart
C, are satisfied.
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    \6\ The dose methodology used in 10 CFR part 61 subpart C is
different from that used in the newer 10 CFR part 20 subpart E.
However, the resulting allowable doses are comparable and NRC
expects DOE to use the newer methodology in 10 CFR part 20 subpart
E. Part 61 is based on International Commission on Radiological
Protection Publication 2 (ICRP 2) and part 20 is based on ICRP 26.
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    Consistent with the overall approach in applying the LTR to the
WVDP and to the entire NRC-licensed site following conclusion of the
WVDP, the resulting calculated dose from the incidental waste is to be
integrated with all the other calculated doses from the residual
radioactive material at the NRC-licensed site to ensure that the LTR
criteria are met. This is appropriate because the Commission does not
intend to establish separate dose standards for various sections of the
NRC-licensed site.\7\
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    \7\ Applying the LTR, the total annual dose to an average member
of the critical group for the site, including the resulting does
from the incidental waste, should be less than or equal to 25 mrem/
yr TEDE. The Commission is not establishing a separate dose standard
for the incidental waste such that the average member of the
critical group potentially receive a dose of 25 mrem/yr TEDE from
the rest of the NRC-licensed site and 25 mrem/yr TEDE from the
incidental waste.
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III. Overview of Public Comments

    Twenty-eight organizations and individuals submitted written
comments on the draft policy statement. Comments also were provided at
the public meeting held on January 5, 2000. The commenters represented
a variety of interests. Comments were received from Federal and State
agencies, citizen and environmental groups, a native American
organization, and individuals. The commenters offered over 200 specific
comments and represented a diversity of views. The commenters addressed
a wide range of issues concerning the decommissioning and closure of
the WVDP and West Valley site. The reaction to the draft policy
statement was generally supportive. However, viewpoints were expressed
on the LTR and LTR guidance and how both should be applied at West
Valley. In addition, there were comments on NRC's process for
prescribing the decommissioning criteria and other issues specific to
West Valley.

IV. Summary of Public Comments and Responses to Comments

    The following sections A through I represent major subject areas
and describe the principal public comments received on the draft policy
statement (organized according to the major subject areas) and present
NRC responses to those comments.
    (A) Comments on the LTR (restricted release; institutional
controls; as low as reasonably achievable (ALARA); financial assurance;
alternate criteria; time line for dose calculations);
    (B) Comments on LTR guidance (critical group, engineered barriers,
cost/benefit analysis);
    (C) Comments on implementing the LTR (continued Federal or State
onsite presence, perpetual license);
    (D) Comments on NRC's process for prescribing the decommissioning
criteria (when to prescribe the criteria; use of the LTR ``Generic
Environmental Impact Statement'' (GEIS) to support the use of the LTR
at West Valley; NRC's National Environmental Policy Act (NEPA)
obligation for prescribing the West Valley decommissioning criteria);
    (E) Comments on jurisdictional aspects of prescribing the
decommissioning criteria;
    (F) Comments on the use of incidental waste criteria at West
Valley;
    (G) Comments related to how the site should be decommissioned
(waste disposition, consideration of pathways for dose, and contaminant
transport);
    (H) Comments on the wording of the draft policy statement (use of
the word ``prescribe,'' paraphrasing the LTR and other statements on
West Valley); and,
    (I) Other comments (implications of the policy statement regarding
native Americans, transuranic waste issue).
    The comments received from the public in writing during the comment
period and verbally during the January 5, 2000, public meeting have
been factored into the Commission's decision-making on this final
policy statement.

A. Comments on the LTR

    The draft policy statement presented NRC's LTR as the
decommissioning criteria for the WVDP and the West Valley site.
Although there was general support for the use of the LTR as the
decommissioning criteria for both the WVDP and West Valley site, there
were a number of comments on the LTR. Specifically:
    A.1  Comment. A number of commenters were concerned that the use of
the LTR's restricted release concept, which includes the use of
institutional controls, to decommission West Valley may not be
appropriate because of the magnitude of the waste currently on-site and
the potential for this waste to provide an unacceptable dose to members
of the public if controls fail.
    A. 2  Response. The LTR criteria consider doses to members of the
public from the loss of institutional controls. The loss of
institutional controls will need to be considered in the DOE/NYSERDA
EIS.\8\ Absent an exemption from the LTR provision in 10 CFR part 20, a
site, or part thereof, that cannot meet the restricted release
provisions of the LTR, must remain under an NRC license. The Commission
will consider

[[Page 5006]]

granting an exemption to the LTR criteria if it determines the
exemption is authorized by law and would not result in undue hazard to
life or property. The Commission intends to involve the public in the
processing of any exemption request consistent with the ``public
participation'' provision in 10 CFR 20.1405, and will involve the
Environmental Protection Agency (EPA) if the exemption request involves
criteria greater than the dose criteria of 10 CFR 20.1402, 20.1403(b),
or 20.1403(d)(1)(i)(A). Such an exemption request will also require the
approval of the Commission consistent with 10 CFR 20.1404(b).
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    \8\ DOE has decided to descope the draft 1996 EIS into two
separate EISs. DOE will be the lead agency on the EIS that will
address WVDP facility decontamination and management of waste
currently stored at the site. NRC expects to be kept informed of
progress as required under the DOE/NRC Memorandum of Understanding
(MOU). DOE and NYSERDA will be the lead agencies on the EIS that
will address decommissioning. NRC expects to participate as an EIS
cooperating agency. Hereafter, this second EIS where NRC will be a
cooperating agency will either be referred to as the decommissioning
EIS or the DOE/NYSERDA EIS, unless otherwise noted.
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    A. 3  Comment. Some commenters also were concerned about the
adequacy of the LTR's financial assurance requirements for maintaining
institutional controls for restricted release at West Valley,
especially if the financial assurance relies on future Government
appropriations that are not guaranteed.
    A. 4  Response. In general, it is assumed that when a Government
agency certifies that it will seek appropriations, to maintain
institutional controls for the purposes of protecting public health and
safety, the appropriations will be authorized. The Commission believes
that it is reasonable to expect Federal and State agencies to meet
their commitments to obtain funding for institutional controls to
provide for the protection of the public health and safety.
    A. 5  Comment. A number of commenters were also concerned that the
time line specified for dose calculations in the LTR (1000 years) is
too short for difficult sites like West Valley.
    A. 6  Response. In the development of the LTR, the Commission
considered comments seeking a time period for dose analysis longer than
1000 years. Section F.7 in the LTR ``Statement of Considerations,'' 62
FR 39058 (July 21, 1997). The Commission concluded that for the types
of facilities and source terms considered, it was reasonable to use a
1000-year period. However, the West Valley site presents some unique
challenges in that significant quantities of mobile, long-lived
radionuclides are present on site. Because under NEPA an evaluation of
reasonably foreseeable impacts is required, the Commission believes
that an analysis of impacts beyond 1000 years should be provided in the
DOE/NYSERDA EIS. Thus, information will need to be evaluated to
determine if peak doses might occur after 1000 years and to define dose
consequences and impacts on potential long-term management of residual
radioactivity at the site. Depending upon the outcome of the EIS
review, the Commission may need to consider the need for environmental
mitigation.
    A. 7  Comment. Some commenters were concerned about the possible
application of alternate criteria, as allowed under the LTR, to West
Valley, or that the policy statement should at least clearly identify
the dose limit cap under alternate criteria.
    A. 8  Response. In addition to the unrestricted release limit of 25
mrem/yr TEDE, the LTR also contains alternate criteria for restricted
release, which allows for a dose limit of up to 100 mrem/yr TEDE, with
restrictions in place, and caps the public dose limit at 100 or 500
mrem/yr TEDE if the restrictions fail. Applying alternate criteria to a
specific site requires opportunities for public involvement,
coordination with the EPA, and direct approval of the Commission. The
alternate criteria in the LTR were developed for difficult sites to
minimize the need to consider exemptions to the LTR, although
exemptions also may be considered. Under appropriate circumstances and
based on a site-specific analysis, the Commission considers the
application of alternate criteria protective of public health and
safety. Absent a detailed site-specific analysis, it is premature for
the Commission to make any judgments, at this time, on the
acceptability or non-acceptability of applying alternate criteria or
exemptions to the WVDP or any portion of the NRC-licensed site. In any
event, neither the alternate criteria in the LTR nor exemptions will be
approved by the Commission without full prior public participation,
involvement of the EPA, and a Commission determination that there is
reasonable assurance that there would not be undue hazard to life and
property.
    A. 9  Comment. There were also comments about the use of the ALARA
process in the LTR at West Valley. Some believed that the ALARA process
might be used to justify dose limits higher than those allowed by the
LTR.
    A. 10  Response. As stated previously, the LTR does allow for
releases with different dose limits. Generally, ALARA is used to reduce
doses below authorized limits. Under the LTR, the ALARA process is not
used to permit doses above the 25 mrem/yr TEDE limit without
restrictions, the 100 mrem/yr TEDE limit with restrictions, or the 500
mrem/yr TEDE cap if restrictions fail.

B. Comments on LTR guidance

    A variety of comments were received on NRC's LTR guidance as it
relates to West Valley. Since the time that NRC's LTR became final in
1997, the NRC staff has been developing guidance to support it. In
September 2000, the NRC released guidance for decommissioning, in the
form of a standard review plan (SRP) (``NMSS Decommissioning Standard
Review Plan,'' NUREG-1727).
    B. 1  Comment. A number of commenters expressed concern with how
the critical group would be defined for dose assessment purposes.
    B. 2  Response. For the LTR, the critical group means the group of
individuals reasonably expected to receive the greatest exposure to
residual radioactivity for any applicable set of circumstances (10 CFR
20.1003). The ``Statement of Considerations'' for the LTR notes that
the critical group would be the group of individuals reasonably
expected to be the most highly exposed, considering all reasonable
potential future uses of the site, based on prudently conservative
exposure assumptions and parameter values within modeling calculations.
NRC's SRP for decommissioning addresses two generic critical group
scenarios--the ``resident farmer'' and the ``building occupancy''
scenarios. The SRP also presents approaches for establishing site-
specific critical groups based on specific land use, site restrictions,
and/or site-specific physical conditions. DOE/NYSERDA derivation of the
critical groups for West Valley will need to be addressed in the EIS
documents. In addition to NRC review and comment, the EIS documents
will be available for public review and comment.
    B. 3  Comment. There were also several comments relating concerns
that long-term stewardship costs and impacts on special populations
will not be properly factored into the cost/benefit analysis, or that
there should be better guidance provided on what should be considered
in the cost/benefit analysis.
    B. 4  Response. DOE and NYSERDA will determine the extent to which
these issues are covered in the DOE/NYSERDA EIS. In addition, NRC will
review and comment on any cost/benefit analysis in the EIS. The cost/
benefit analysis that DOE/NYSERDA develop for West Valley will need to
be part of the EIS documents available for public review and comment.
    B. 5  Comment. Some commenters suggested that there should be
criteria for what are allowable engineered

[[Page 5007]]

barriers and whether or not they are considered institutional controls.
    B. 6  Response. Because of the wide range of residual radioactive
contamination encountered at decommissioning sites licensed by NRC, the
LTR and NRC's decommissioning guidance are not prescriptive as to the
criteria for, or acceptability of, site-specific institutional controls
and engineered barriers. The ``Statement of Considerations'' for the
LTR might be read to conclude that engineered barriers are included
within institutional controls. However, neither term is defined. In the
Commission's view, ``engineered barriers'' referred to in the
``Statement of Considerations'' for the LTR are distinct and separate
from institutional controls. Used in the general sense, an engineered
barrier could be one of a broad range of barriers with varying degrees
of durability, robustness, and isolation capability. Thus, NRC guidance
in Appendix I of the SRP on the LTR distinguishes institutional
controls from physical controls and engineered barriers. Institutional
controls are used to limit intruder access to, and/or use of, the site
to ensure that the exposure from the residual radioactivity does not
exceed the established criteria. Institutional controls include
administrative mechanisms (e.g., land use restrictions) and may
include, but not be limited to, physical controls (e.g., signs,
markers, landscaping, and fences) to control access to the site and
minimize disturbances to engineered barriers. There must be sufficient
financial assurance to ensure adequate control and maintenance of the
site and institutional controls must be legally enforceable and the
entity charged with their enforcement must have the capability,
authority, and willingness to enforce the controls. Generally,
engineered barriers are passive man-made structures or devices intended
to improve a facility's ability to meet a site's performance
objectives. Institutional controls are designed to restrict access,
whereas engineered barriers are usually designed to inhibit water from
contacting waste, limit releases, or mitigate doses to intruders. The
isolation capability, durability, and robustness of a specific barrier
will need to be evaluated in the DOE/NYSERDA EIS. The ability of a
barrier to inhibit access of the inadvertent intruder is a separate
issue from whether a barrier is an institutional control. The dose
analyses for a site with engineered barriers will need to consider the
reasonableness of a breach by an inadvertent intruder.

C. Comments on Implementing the LTR

    C. 1  Comment. There were some comments identifying who should be
the long-term steward of the site if long-term stewardship is required
as part of site closure. Some commenters also provided suggestions on
how site long-term stewardship should be maintained at West Valley if
it is needed (onsite staff, perpetual license).
    C. 2  Response. NRC expects that these site-specific issues will be
covered in the DOE/NYSERDA EIS and addressed in the preferred
alternative. The identification of a long-term custodian is not an NRC
responsibility but will be determined from negotiations involving DOE
and NYSERDA and possibly the U.S. Congress. From the NRC perspective,
both DOE and NYSERDA represent governmental entities and either would
be acceptable as a long-term custodian.
    C. 3  Comment. One commenter requested consideration of how the LTR
would be implemented on the decommissioned portions of the site if
there were areas of the site that could not meet the LTR.
    C. 4  Response. Although the LTR does not specifically address
differing release standards on a single site, NRC recognizes that the
approach to decommissioning at West Valley may include portions of the
site being released for unrestricted use, and portions of the site
being released for restricted use, as well as portions of the site
remaining under license, because of a failure to meet the LTR. In the
Commission's view, the LTR is sufficiently flexible to allow for such
circumstances. In particular, the Commission believes that for those
portions of the site that are unable to demonstrate compliance with the
LTR's restricted release requirements, the dose limits should be viewed
as goals in order to ensure that cleanup continues to the maximum
extent that is technically and economically feasible. The Commission
also believes that after cleanup to the maximum extent technically and
economically feasible is accomplished, alternatives to release under
the LTR criteria may need to be contemplated. Specific examples of
these alternatives are a perpetual license for some parts of the site
or exemptions from the LTR. The NRC expects that these issues will be
fully addressed in the DOE/NYSERDA EIS.

D. Comments on NRC's Process for Prescribing the Decommissioning
Criteria

    D.1.  DOE recommended, for the reasons described in comments D.1.1,
D.1.3, and D.1.5 below, that NRC withhold assigning the LTR as the
decommissioning criteria until NRC does a site-specific analysis of the
environmental effects of decommissioning West Valley.
    D.1.1  Comment. The LTR GEIS (NUREG-1496) does not support the use
of the LTR at a complex site like West Valley; therefore, a specific
EIS for this action needs to be completed by NRC to finalize the
criteria.
    D.1.2  Response. Although the LTR GEIS did not specifically address
the decommissioning of a spent fuel reprocessing site, it did evaluate
the decommissioning of a range of reference facilities (e.g., fuel
cycle facilities and reactors). In promulgating the LTR, the Commission
stated in Section VI of the ``Statement of Considerations'' that it
will conduct an environmental review to ``determine if the generic
analysis encompasses the range of environmental impacts at the
particular site.'' The Commission further stated that it ``will conduct
an independent environmental review for each site-specific
decommissioning decision where land use restrictions or institutional
controls are relied upon by the licensee or where alternative criteria
are proposed'' as it recognized that the environmental impacts for
these cases cannot be analyzed on a generic basis. Thus, the
environmental impacts from the application of the criteria to the WVDP
will need to be evaluated for the various alternative approaches being
considered in the process before NRC decides whether to accept the
preferred alternative for meeting the criteria permitted by the LTR.
NRC expects to be able to rely on the DOE/NYSERDA EIS for this purpose.
NRC does not anticipate the need to prepare its own duplicative EIS as
NRC can consider the environmental impacts described in the DOE/NYSERDA
EIS in approving the particular decommissioning criteria for the WVDP
under the LTR. As an EIS cooperative agency, NRC may adopt all or parts
of the lead EIS agency's NEPA documents. Under this arrangement, if NRC
is satisfied with the final DOE/NYSERDA EIS, then NRC will adopt it to
fulfill its NEPA responsibilities under the WVDP Act. If NRC is not
satisfied with the final DOE/NYSERDA EIS, then it will adopt as much of
it as possible and modify or supplement it as necessary. In such a
situation, NRC would publish its own draft EIS document for public
review and comment before finalizing it. Once finalized, NRC's West
Valley NEPA responsibilities would be fulfilled under the WVDP Act.

[[Page 5008]]

    The WVDP Act does not address license termination for the site. The
actual license termination for the site, if and when pursued, will be
conducted under the Atomic Energy Act (AEA) of 1954, as amended. At the
time of NRC license termination under the AEA (if license termination
is pursued), NRC will need to conduct an environmental review to
determine if an EIS is necessary to support license termination.
    D.1.3  Comment. The NRC's prescription of decommissioning criteria
is not being coordinated with the current NEPA process as suggested by
the DOE/NRC Memorandum of Understanding (MOU) on West Valley.
    D.1.4  Response. The process described in the DOE/NRC MOU (Section
B (4)), for consulting on a site-specific analysis of decommissioning
requirements was developed to allow DOE and NRC to evaluate a range of
approaches to specifically address the decommissioning of the WVDP.
Thereafter, NRC was to prescribe the decommissioning criteria. At the
time the MOU was signed, no comprehensive general criteria existed for
decommissioning NRC-licensed sites. Decommissioning criteria were
determined on a case-by-case basis. However, through the rulemaking
process completed in 1997, which promulgated the LTR, there was an
evaluation of various regulatory approaches for decommissioning NRC-
licensed sites and the selection of a range of regulatory approaches
with criteria, in the final rule.
    Except as provided in 10 CFR 20.1401, the LTR applies to all NRC's
licensed sites. The Commission recognized, as noted in the ``Statement
of Considerations'' for the LTR, that there would be sites with complex
decommissioning issues that would be resolved by site-specific
environmental reviews which considered various alternative methods for
decommissioning and application of the LTR. In the Commission's view,
the use of the two-step prescribing process--first, the decision to use
the LTR, and second, to use the DOE/NYSERDA EIS, to consider the
impacts of the different approaches for decommissioning, before
deciding whether to accept the particular approach that DOE intends to
use to meet the LTR--is consistent with the intent of the MOU that
various approaches be analyzed in developing the WVDP decommissioning
criteria.
    D.1.5  Comment. Finalizing the LTR now as the decommissioning
criteria for the WVDP at the West Valley site limits the options for
closure of the NRC-licensed Disposal Area (NDA).
    D.1.6  Response. The Commission does not believe that prescribing
the LTR criteria for the WVDP at the West Valley site as the applicable
decommissioning goal for the entire NRC-licensed site will limit DOE
from developing acceptable closure options for the NDA or any other
part of the NRC-licensed site. Prescribing the LTR now is warranted
because NYSERDA, as a licensee of the Commission, is subject to the LTR
after NYSERDA's NRC license is reactivated at the conclusion of the
WVDP. It follows that DOE should also be subject to the LTR as it is
the surrogate for NYSERDA in decommissioning facilities used for the
project. Therefore, it is appropriate to prescribe the LTR now for the
WVDP, with the site-specific decommissioning issues resolved through
the process described in Response D.1.4 above. Applying the LTR to the
WVDP will provide an opportunity to DOE, as would be given to any
licensee, to consider a range of approaches to achieve acceptable
decommissioning, consistent with public dose limits. If parts of the
NRC-licensed site cannot meet the LTR, the Commission will consider
alternatives to the criteria in the LTR if it can be demonstrated that
public health and safety will be protected. The NRC expects that these
issues will be fully addressed in the DOE/NYSERDA EIS.

E. Comments on Jurisdictional Aspects of Prescribing the
Decommissioning Criteria

    E.1  Comment. Many commenters suggested that, because the State-
licensed Disposal Area (SDA) is immediately adjacent to the WVDP and
part of the West Valley site, the allowable dose from the closure and/
or decommissioning of it should be considered comprehensively with the
allowable dose from the NRC regulated part of the site.
    E.2  Response. NRC's authority only extends to the NRC-licensed
portion of the site. It also should be noted that the LTR recognizes
that people can be exposed to up to four sources of radiation and still
meet the nationally and internationally accepted public dose limit of
100 mrem/yr TEDE in part 20. In considering the environmental impacts
for the entire site, the DOE/NYSERDA EIS will need to consider the
number of sources to which the critical group may be exposed. However,
NRC continues to dialogue with State representatives to exchange
information on issues of mutual interest regarding potential sources of
public exposure.
    E.3  Comment. A few comments were made indicating that NRC ought to
prescribe the dose limits in EPA's decommissioning guidance to West
Valley, because they are more protective and could be applied to the
site after NRC regulatory authority ceases. Likewise, a comment was
made that the decommissioning criteria issue between NRC and EPA should
be resolved before the criteria are prescribed.
    E.4  Response. The Commission believes that the LTR dose limits
plus ALARA requirements provide protection comparable to dose limits
preferred by EPA in its guidance documents. The Commission notes that
the LTR was promulgated by the Commission in 1997 pursuant to an
Administrative Procedure Act rulemaking accompanied by a generic EIS
and voluminous regulatory analysis, including consideration of numerous
public comments. EPA's guidance documents have gone through no such
public process. The Commission believes that decommissioning the site
to the LTR criteria ensures that public health and safety and the
environment will be protected. Although there is a lack of agreement
between NRC's rule and EPA's guidance documents on the appropriate
upper bounds on decommissioning criteria, the NRC practice of applying
ALARA principles to NRC dose limits will most likely result in an NRC
approved decommissioned site that satisfies the EPA criteria as well.
In fact, EPA has indicated that it believes that the 25 mrem/yr TEDE
cleanup dose limit in the LTR will be ``protective at this site.'' See
Letter from Paul Giardina, EPA to John Greeves, NRC (July 23, 2001).
Because the LTR requirements do ensure adequate protection of the
public health and the environment, and, as indicated in the preceding
paragraph, EPA agrees with this conclusion for West Valley, the
Commission believes that it is not necessary to wait for a formal
resolution of the differences between NRC and EPA on generic
decommissioning standards before proceeding with prescribing site-
specific decommissioning criteria for the WVDP. As stated previously,
EPA will be involved in any proposal to use alternate criteria in the
LTR or exemptions from 10 CFR part 20, if so requested.

F. Comments on the Use of Incidental Waste Criteria at West Valley Site

    F.1  Comment. Many comments were received concerning the use of the
incidental waste criteria at West Valley. Most commenters did not want
NRC to allow for the ``reclassification'' of any HLW at this site to
waste incidental to reprocessing. If it were allowed, it

[[Page 5009]]

should be done in a way that provides for public participation. One
commenter agreed that it will have to be done, but that the Commission
should prescribe the criteria that are necessary and appropriate for
the incidental waste determination. One other commenter believes that
use of DOE's Order 435.1 is the appropriate process for reclassifying
residual HLW as incidental.
    F.2  Response. Section 6 (4) of the WVDP Act defines HLW as
including both (1) liquid wastes which are produced directly in
reprocessing, dry solid material derived from such liquid waste and (2)
such other material as the Commission designates as HLW for the
purposes of protecting the public health and safety. Since 1969, the
Commission has recognized the concept of waste incidental to
reprocessing, concluding that certain material that otherwise would be
classified as HLW need not be disposed of as HLW and sent to a geologic
repository because the residual radioactive contamination after
decommissioning is sufficiently low as not to represent a hazard to the
public health and safety. Consequently, incidental waste is not
considered HLW. See, Proposed Rule--Siting of Commercial Fuel
Reprocessing Plants and Related Waste Management Facilities (34 FR
8712; June 3, 1969), Final Rule--Siting of Commercial Fuel Reprocessing
Plants and Related Waste Management Facilities (35 FR 17530; November
14, 1970), Advance Notice of Proposed Rule-making to Define HLW (52 FR
5992, 5993; February 27, 1987), Proposed Rule--Disposal of Radioactive
Waste (53 FR 17709; May 18, 1988), Final Rule--Disposal of Radioactive
Waste (54 FR 22578; May 25, 1989), and Denial of Petition for
Rulemaking: States of Washington and Oregon, (58 FR 12342; March 3,
1993).
    The Commission believes that practical considerations mandate early
resolution of the criteria that should guide the incidental waste
determination. Vitrification of the high-level wastes at West Valley is
nearing completion, at which point DOE intends to close down the
vitrification facility. To delay providing the Commission's view for
incidental waste could adversely impact the DOE, as it may prove
extraordinarily expensive after the vitrification facility is shut down
to provide vitrification capacity for any additional waste that must be
shipped elsewhere for disposal. Indeed, in light of the fact that the
site will ultimately revert to control by NYSERDA under an NRC license,
both NYSERDA and NRC have an interest in ensuring that the incidental
waste determination need not be revisited.
    In light of these considerations, the Commission is now providing
the following criteria for incidental waste determinations.
    (1) The waste should be processed (or should be further processed)
to remove key radionuclides to the maximum extent that is technically
and economically practical; and
    (2) The waste should be managed so that safety requirements
comparable to the performance objectives in 10 CFR part 61 subpart C,
are satisfied.
    The resulting calculated dose from the incidental waste is to be
integrated with all the other calculated doses from the remaining
material at the entire NRC-licensed site to ensure that the LTR
criteria are met. This is appropriate because the Commission does not
intend to establish separate dose standards for various sections of the
NRC-licensed site.
    Previously the NRC has provided advice to DOE concerning DOE's
classification of certain waste as incidental waste for clean-up of HLW
storage tanks at both Hanford and Savannah River. As noted above, NRC
intends to apply the LTR criteria for the WVDP at the West Valley site,
reflecting the fact that the applicable decommissioning goal for the
entire NRC-licensed site is in compliance with the requirements of the
LTR. The Commission has decided that the most recent advice provided to
DOE for the classification of incidental waste at the Savannah River
site,\9\ with some additional modifications, as the appropriate
criteria that should be applicable to West Valley. These criteria are
risk-informed and performance-based in that the criteria allow DOE the
flexibility to develop innovative approaches to meeting the performance
objectives in part 61. In effect, DOE should undertake cleanup to the
maximum extent that is technically and economically practical and
should achieve performance objectives consistent with those we demand
for the disposal of low-level waste. If satisfied, these criteria
should serve to provide protection of the public health and safety and
the environment and the resulting calculated dose would be integrated
with the resulting calculated doses for all other remaining material at
the NRC-licensed site. It is the Commission's expectation that it will
apply this criteria at the WVDP at the site following the completion of
DOE's site activities. In this regard, the impacts of identifying waste
as incidental to reprocessing and not HLW should be considered in the
DOE's environmental reviews.
---------------------------------------------------------------------------

    \9\ See NRC Staff Requirements Memorandum ``SECY-99-0284--
Classification of Savannah River Residual Tank Waste as
Incidental,'' May 30, 2000.
---------------------------------------------------------------------------

G. Comments Related to How the Site Should Be Decommissioned

    G.1  Comment. There were many comments and suggestions that all the
waste at this site should be perhaps temporarily stabilized, or
packaged and perhaps temporarily stored, but ultimately removed from
the site. There were also some comments on what are the important
pathways for, and man-made barriers to control, contaminant transport
at the site.
    G.2  Response. The Commission appreciates the public's
identification of, and input on, these issues. The decisions related to
alternative approaches to decommissioning the West Valley site will be
evaluated in the DOE/NYSERDA EIS, and reviewed by NRC for their ability
to protect public health and safety and the environment. The EIS will
also be available for public comment before being finalized.

H. Comments on the Wording of the Draft Policy Statement

    H.1  Comment. Several comments were made about the last part of a
sentence in the Draft Policy Statement under the section entitled
``Decommissioning Criteria for the WVDP.'' It states that ``* * *
following the completion of DOE/NYSERDA's EIS and selection of its
preferred alternative, the NRC will verify that the specific criteria
identified by DOE is within the LTR and will prescribe the use of
specific criteria for the WVDP.'' Many suggested that prescribing the
use of the specific criteria after the selection of the preferred
alternative in the EIS is confusing, not what is meant by the WVDP Act,
and would allow adjustment of the criteria after the EIS is completed.
    H.2  Response. As addressed above in response to the various
comments, the Commission's intent is to prescribe the generally
applicable requirements of the LTR now, before the completion of the
site-specific EIS. After completion of the site-specific DOE/NYSERDA
EIS, NRC will evaluate the compliance status of the preferred
alternative with respect to the LTR, as described in the Commission's
final policy statement. This is a two-step process. The first step is
prescribing the LTR, a set of criteria that allows for unrestricted
releases, restricted releases, and alternative releases, that applies
to all NRC licensees. Prescribing decommissioning criteria now for the
WVDP allows DOE to develop alternative approaches for

[[Page 5010]]

meeting those criteria and consider their impacts in its site-specific
EIS.
    The second step is for NRC to evaluate on a site-specific basis the
approach for meeting the LTR. This will be done after the DOE/NYSERDA
EIS is completed and NRC adopts it or otherwise produces its own NEPA
evaluation of the site-specific criteria developed in the DOE/NYSERDA
EIS. NRC will be evaluating DOE's and NYSERDA's preferred alternative
for meeting the LTR and other alternatives presented in the DOE/NYSERDA
EIS.
    This process is in accordance with the ``Statement of
Considerations'' for the LTR, which describes the relationship between
the GEIS for the LTR and site-specific decommissioning actions. A site-
specific EIS is prepared in cases where the range of environmental
impacts of the alternatives at a specific site may not be within those
considered in the GEIS for the LTR. This is similar to the approach
that NYSERDA, as an NRC licensee, would need to meet if the license
were not being held in abeyance. The Commission is satisfied that this
approach is within the intent of the WVDP Act for the prescription of
decommissioning requirements by NRC.
    The WVDP Act does not address license termination for the site. The
actual license termination for the site, if and when possible, will be
conducted under the AEA, as amended. At the time of NRC license
termination under the AEA (if license termination is pursued), NRC will
need to conduct an environmental review to determine if an EIS is
necessary to support actual license termination. The language from the
draft policy statement was changed in the final policy statement to
reflect the process described above.
    H.3  Comment. The policy statement should not paraphrase the LTR
and others' statements on West Valley.
    H.4  Response. The Commission was attempting to provide context to
the draft policy statement by paraphrasing the LTR or others'
statements on West Valley. To avoid confusion or misinterpretation in
the Final Policy Statement, it will contain a disclaimer to the effect
that notwithstanding any paraphrasing of the LTR in the Policy
Statement, the language of the LTR itself is controlling in determining
how it is to be applied at West Valley. The paraphrasing of others'
statements will be avoided.

I. Other Comments

    I.1  Comment. What are the implications of the policy statement
regarding NRC's policies regarding Native Americans.
    I.2  Response. NRC staff has examined the draft policy on
decommissioning criteria for the WVDP and has not identified any
implications in relation to the Commission's guidance regarding Native
Americans. The Commission has directed the NRC staff to implement the
spirit and letter of President Clinton's April 29, 1994, Executive
Memorandum to ensure that the rights of sovereign Tribal governments
are fully respected and to operate within a government-to-government
relationship with Federally-recognized Native American Tribes. In
addition, the staff has been directed to address Native American issues
on a case-by-case basis, operating with Tribal Governments on a
government-to-government basis. In response to the interest expressed
by the Seneca Nation of Indians in NRC activities at WVDP, the NRC
staff has added the Seneca Nation to its service list which will
provide the Seneca Nation with copies of documents and meeting notices
related to NRC's activities at West Valley that the NRC may publically
release. The NRC staff will address issues raised by the Seneca Nation
of Indians in accordance with the Commission's guidance.
    I.3  Comment. One commenter claims that NRC is required by law to
define ``transuranic waste'' for West Valley and determine the
disposition of that waste.
    I.4  Response. Section 6(5) of the WVDP Act defines transuranic
waste for the WVDP in terms of radioisotopes and the lower limit of
concentration of those isotopes. It also states that NRC has the
authority to prescribe a different concentration limit to protect
public health and safety. NRC's position on this issue is detailed in a
letter from M. Knapp, NRC, to W. Bixby, DOE, dated August 18, 1987.
This letter states that, to demonstrate protection of public health and
safety, the transuranic concentration of project wastes acceptable for
on-site disposal will be such that, by analysis, safety requirements
comparable to the performance objectives in 10 CFR part 61 subpart C
are satisfied. The resulting calculated dose from the transuranic waste
is to be integrated with all the other calculated doses from the
remaining material at the NRC-licensed site to ensure that the LTR
criteria are met. As with incidental waste, the Commission is not
establishing a separate dose standard that applies solely to the
transuranic waste.

V. Final Policy Statement

Statement of Policy

Decommissioning Criteria for the West Valley Demonstration Project
(WVDP)
    Under the authority of the WVDP Act, the Commission is prescribing
NRC's License Termination Rule (LTR) (10 CFR part 20, subpart E) as the
decommissioning criteria for the WVDP, reflecting the fact that the
applicable decommissioning goal for the entire NRC-licensed site is in
compliance with the requirements of the LTR. The criteria of the LTR
shall apply to the decommissioning of: (1) The High Level Waste (HLW)
tanks and other facilities in which HLW, solidified under the project,
was stored; (2) the facilities used in the solidification of the waste;
and (3) any material and hardware used in connection with the WVDP.
Also under authority of the WVDP Act, the Commission is issuing
criteria for the classification of reprocessing wastes that will likely
remain in tanks at the site after the HLW is vitrified, subsequently
referred to as ``incidental waste.''
    The resulting calculated dose from the WVDP at the West Valley site
is to be integrated with all other calculated doses to the average
member of the critical group from the remaining material at the entire
NRC-licensed site to determine whether the LTR criteria are met. This
is appropriate because the Commission does not intend to establish
separate dose standards for various sections of the NRC-licensed site.
The LTR does not apply a single public dose criterion. Rather, it
provides for a range of criteria. Briefly stated, for unrestricted
release, the LTR specifies a dose criterion of 25 mrem/yr total
effective dose equivalent (TEDE) to the average member of the critical
group plus as low as reasonably achievable (ALARA) considerations (10
CFR 20.1402). For restricted release, the LTR specifies an individual
dose criterion of 25 mrem/year TEDE plus ALARA considerations using
legally enforceable institutional controls established after a public
participatory process (10 CFR 20.1403). Even if institutional controls
fail, individual doses should not exceed 100 mrem/yr TEDE . If it is
demonstrated that the 100 mrem/yr TEDE criterion in the event of
failure of institutional controls is technically not achievable or
prohibitively expensive, the individual dose criterion in the event of
failure of institutional controls may be as high as 500 mrem/yr TEDE.
However, in circumstances where restricted release is required, if the
100 mrem/yr TEDE criterion is exceeded, and/or the use of alternate
criteria has

[[Page 5011]]

been determined, the area would be rechecked by a responsible
government entity no less frequently than every 5 years and resources
would have to be set aside to provide for any necessary control and
maintenance of the institutional controls. Finally, the LTR permits
alternate individual dose criteria of up to 100 mrem/yr TEDE plus ALARA
considerations for restricted release, with institutional controls
established after a public participatory process (10 CFR 20.1404). The
Commission itself must approve use of the alternative criteria, after
coordination with the U.S. Environmental Protection Agency (EPA) and
after consideration of the NRC staff's recommendations and all public
comments.\10\
---------------------------------------------------------------------------

    \10\ The material set out in the text is a brief summary of the
LTR. Notwithstanding the words used in the text, the language of the
LTR governs this matter.
---------------------------------------------------------------------------

    The Commission also recognizes that decommissioning of the West
Valley site will present unique challenges, which may require unique
solutions. As a result, the final end-state may involve a long-term or
even a perpetual license or other innovative approaches for some parts
of the site where clean up to the LTR requirements are prohibitively
expensive or technically impractical. It is important that all parts of
the site be decommissioned to the extent technically and economically
feasible. Therefore, in addition, the Commission expects
decontamination to the maximum extent technically and/or economically
feasible for any portion of the site remaining under a long term or
perpetual license or for which an exemption from the LTR is sought. In
sum, the Commission believes that for those portions of the site that
are unable to demonstrate compliance with the LTR's restricted release
requirements, the dose limits should be viewed as goals, in order to
ensure that cleanup continues to the maximum extent that is technically
and economically feasible. If complying with the LTR's restricted
release requirements is technically impractical or prohibitively
expensive, then an exemption from the LTR may be appropriate, provided
that protection of the public and the environment can be maintained.
    The Commission's application of the LTR to the WVDP is a two-step
process: (1) NRC is now prescribing the application of the LTR; and (2)
after the completion of the site-specific Department of Energy (DOE)/
New York State Energy Research and Development Authority (NYSERDA)
Environmental Impact Statement (EIS) \11\ and selection of the
preferred alternative, NRC will verify that the approach proposed by
DOE is appropriate. The WVDP Act does not address license termination
of the NRC license for the site, or portions thereof, which will be
conducted (if license termination is possible and pursued) under the
Atomic Energy Act (AEA) of 1954, as amended. If full or partial license
termination of the NRC license is pursued, at that time NRC will need
to conduct an environmental review to determine if an EIS is necessary
to support license termination.
---------------------------------------------------------------------------

    \11\ DOE has decided to descope the draft 1996 EIS into two
separate EISs. DOE will be the lead agency on the EIS that will
address WVDP facility decontamination and management of waste
currently stored at the site. NRC expects to be kept informed of
progress as required under the DOE/NRC Memorandum of Understanding
(MOU). DOE and NYSERDA will be the lead agencies on the EIS that
will address decommissioning. NRC expects to participate as an EIS
cooperating agency. Hereinafter, this second EIS where NRC will be a
cooperating agency will either be referred to as the decommissioning
EIS or the DOE/NYSERDA EIS, unless otherwise noted.
---------------------------------------------------------------------------

Decommissioning Criteria for the NRC-Licensed Disposal Area (NDA) and
State-Licensed Disposal Area (SDA)
    NRC will apply the criteria in the LTR to the NDA within the West
Valley site, because the NDA is under NRC jurisdiction. However, the
NDA presents some unique challenges in that some of this material
contains significant quantities of mobile, long-lived radionuclides
which could potentially remain in this facility. It is recognized that
because of the nature of radioactivity at West Valley, reasonably
foreseeable impacts might occur after 1000 years, under certain
scenarios. Under NEPA, an evaluation of the reasonably foreseeable
impacts is required. Therefore, the Commission believes that an
analysis of impacts beyond 1000 years should be provided in the DOE/
NYSERDA EIS which will be subject to public comment.
    NRC does not have regulatory authority to apply the LTR criteria to
the SDA adjacent to the WVDP site boundary, because the SDA is
regulated by the State of New York. However, NRC recognizes that a
cooperative approach with the State to the extent practical should be
utilized to apply the LTR criteria in a coordinated manner to the NRC-
licensed site and the SDA.
Decommissioning Criteria for License CSF-1 (NRC Site License)
    The criteria in the LTR will also apply to the termination of
NYSERDA's NRC license on the West Valley site after that license is
reactivated. For those portions of the site covered by the WVDP Act, it
is NRC's intent to authorize that any exemptions or alternate criteria
authorized for DOE to meet the provisions of the WVDP Act will also
apply to NYSERDA at the time of site license termination, if license
termination is possible. The NRC site license termination is not
addressed in the WVDP Act. Therefore the NRC site license termination
is subject to the provisions of the Atomic Energy Act of 1954 as
amended.
Use of Incidental Waste Criteria at West Valley
    Section 6 (4) of the WVDP Act defines HLW as including both (1)
liquid wastes which are produced directly in reprocessing, dry solid
material derived from such liquid waste and (2) such other material as
the Commission designates as HLW for the purposes of protecting the
public health and safety. The Commission believes that practical
considerations mandate early resolution of the criteria that will guide
the classification of incidental waste. The vitrification of the wastes
at West Valley is nearing completion, at which point DOE intends to
close down the vitrification facility. To delay defining classification
criteria for incidental waste could adversely impact the DOE as it may
prove extraordinarily expensive after the vitrification facility is
shut down to provide vitrification capacity for any additional waste
that must be shipped elsewhere for disposal. Indeed, in light of the
fact that the site will ultimately revert to control by NYSERDA under
an NRC license, both NYSERDA and NRC have an interest in ensuring that
the incidental waste determination need not be revisited.
    In light of these considerations, the Commission is now providing
the following criteria that should be applied to incidental waste
determinations.
    (1) The waste should be processed (or should be further processed)
to remove key radionuclides to the maximum extent that is technically
and economically practical; and
    (2) The waste should be managed so that safety requirements
comparable to the performance objectives in 10 CFR part 61 subpart C,
are satisfied.\12\
---------------------------------------------------------------------------

    \12\ The dose methodology used in 10 CFR part 61 subpart C is
different from that used in the newer 10 CFR part 20 subpart E.
However, the resulting allowable doses are comparable and NRC
expects DOE to use the newer methodology in 10 CFR part 20 subpart
E. part 61 is based on International Commission on Radiological
Protection Publication 2 (ICRP 2) and part 20 is based on ICRP 26.
---------------------------------------------------------------------------

    Consistent with the overall approach in applying the LTR to the
WVDP and to the entire NRC-licensed site following

[[Page 5012]]

conclusion of the WVDP, the resulting calculated dose from the
incidental waste is to be integrated with all the other calculated
doses from material remaining material at the entire NRC-licensed site.
Previous Burials Authorized Under 10 CFR Part 20
    The ``Statement of Considerations'' for the LTR, Section C.3, Other
Exemptions (62 FR 39074) provided that in regard to past burials the
Commission ''* * * would continue to require an analysis of site-
specific overall impacts and costs in deciding whether or not
exhumation of previous buried waste is necessary for specific sites. In
addition, the general exemption provisions of 10 CFR part 20 are
available to consider unique past burials on a case-by-case basis.''
The NDA contains significant amounts of buried radioactive material
that was previously authorized under older provisions of part 20. This
material will require appropriate evaluation as part of site license
termination.
Environmental Analysis
    An EIS is not needed at this step of the process of prescribing the
LTR because the Commission is not establishing a new requirement for
the site. This site is licensed to NYSERDA and, therefore, is already
subject to the LTR by operation of the Commission's regulations. DOE in
essence is acting as a surrogate for NYSERDA . The environmental
impacts of applying the LTR to NRC licensees were evaluated in the
Generic Environmental Impact Statement (GEIS), NUREG-1496, that
supported the LTR. In promulgating the LTR, the Commission stated, in
Section VI of the ``Statement for Considerations'' that it will conduct
an environmental review to ``determine if the generic analysis
encompasses the range of environmental impacts at the particular
site.'' The Commission further stated that it ``will conduct an
independent environmental review for each site-specific decommissioning
decision where land use restrictions or institutional controls are
relied upon by the licensee or where alternative criteria are
proposed'' as it recognized that the environmental impacts for these
cases cannot be analyzed on a generic basis. The environmental impacts
from the application of the criteria will need to be evaluated for the
various alternative approaches being considered in the process before
NRC decides whether to accept the preferred alternative for meeting the
criteria permitted by the LTR. NRC intends to rely on the DOE/NYSERDA
EIS for this purpose.
    For NEPA purposes, DOE is considered the lead Federal agency. NRC,
in view of its responsibilities under the WVDP Act, is considered a
cooperating agency for this EIS and is participating in the development
of the DOE/NYSERDA EIS. NRC does not anticipate the need to prepare its
own duplicative EIS, since it can consider the environmental impacts
described in the DOE/NYSERDA EIS in approving the particular
decommissioning criteria for the WVDP under the LTR. Under this
arrangement, if NRC is satisfied with the DOE/NYSERDA EIS, this EIS
will fulfill the NEPA responsibilities for NRC under the WVDP Act. If
NRC is not satisfied with the final DOE/NYSERDA EIS, then NRC will
adopt as much of it as possible and modify or supplement it as
necessary. In such a situation, NRC would publish its own draft EIS
document for public review and comment before finalizing it. Once
finalized, NRC's West Valley NEPA responsibilities would be fulfilled
under the WVDP Act.
    The WVDP Act does not address license termination for the site.
License termination of the NRC license for the site, or portions
thereof, is conducted (if license termination is possible) under the
AEA. If NYSERDA pursues either full or partial license termination of
the NRC license, at that time NRC will need to conduct an environmental
review to determine if an EIS is necessary to support license
termination.
Availability of Documents
    NRC's final policy statement on decommissioning criteria for West
Valley is also available at NRC's Public NRC Library link
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nrc.gov/NRC/ADAMS/ index.html) on NRC's home page (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nrc.gov). Copies of documents cited in this section are available
for inspection and/or reproduction for a fee in the NRC Public Document
Room, 11555 Rockville Pike, Room O-1F21, Rockville, MD 20852. The NRC
Public Document Room is open from 7:45 a.m. to 4:15 p.m., Monday
through Friday, except on Federal holidays. Reference service and
access to documents may also be requested by telephone (301-415-4737 or
800-397-4209), between 8:30 a.m. and 4:15 p.m.; or by e-mail
(PDR.Resource@nrc.gov); fax (301-415-3548); or a letter (NRC Public Document
Room, Mailstop O-1F13, Washington, DC 20555-0001). In addition, copies
of: (1) SECY-98-251, ``Decommissioning Criteria for West Valley;'' (2)
the transcript of the public meeting held January 12, 1999; (3) the
Commission's SRM of January 26, 1999, concerning the January 12, 1999,
public meeting on SECY-98-251; (4) SECY-99-057, ``Supplement to SECY-
98-251, `Decommissioning Criteria for West Valley;' '' (5) the
Commission's vote sheets on SECY-98-251 and SECY-99-057; (6) the
Commission's SRM of June 3, 1999, on SECY-98-251 and SECY-99-057; (7)
the draft policy statement issued December 3, 1999; (8) the transcript
of the public meeting held January 5, 2000; and (9) the public comments
on the draft policy statement can be obtained electronically on NRC's
home page at the Commission's Activities link (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nrc.gov/NRC/COMMISSION/activities.html).

    Dated at Rockville, Maryland, this 25th day of January, 2002.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 02-2373 Filed 1-31-02; 8:45 am]
BILLING CODE 7590-01-P

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