09-05

WIPP LEGAL ISSUES

Cooper Wayman, J.D., Ph.D., P.E.
Area Office Legal Counsel
Department of Energy Carlsbad Area Office

Barry Goldstein, J.D., Ph.D.
Sandia National Laboratories
National Transuranic Waste Program Department

Michael Brown
National Transuranic Waste Program
Department of Energy
Carlsbad Area Office

ABSTRACT

A number of concerns frequently arise concerning the Waste Isolation Pilot Project (WIPP) Land Withdrawal Act (LWA), as amended. This is the legislation wherein the Department of Energy's (DOE's) WIPP Project is regulated by the Environmental Protection Agency (EPA). Like all legislation the LAW creates problems of interpretative language. Examples of these concerns are:

how remote-handled transuranic (RH-TRU) waste might be distinguished from high-level waste(HLW) and Spent Nuclear Fuel (SNF), and from CH-TRU waste;
what constitutes "defense" waste;
what constitutes "disposal" under the LWA and other regulations; and
whether the LWA's volume limitation applies to the storage containeers' volume, and the implications that might follow from such an interpretation.

This paper discusses the uncertainty surrounding the first of these issues. This is a significant concern in order to provide "guidance" to the ten (10) gnerator sites that will classify and characterize transuranic waste for disposal at WIPP in 1998. Relevant laws, regulations and pertinent DOE orders are examined in an attempt to clarify this uncertainty.

POLICY FOR DISTINGUISHING REMOTE-HANDLED TRANSURANIC FROM HIGH LEVEL WASTE

Section 12 of the Land Withdrawal Act prohibits the transportation to and disposal of high-level waste or spent nuclear fuel at the WIPP. Section 2(20)(A) of the Land Withdrawal Act excludes high-level waste from the definition of transuranic waste. Section 7(a) of the Land Withdrawal Act sets external dose rates (rems/hr.) for both contact-handled and remote-handled transuranic waste, and curie limits for remote-handled transuranic waste. Whereas contact-handled waste has a surface dose rate less than or equal to 200 mrem/hr. (Land Withdrawal Act §2(3)), remote-handled transuranic waste is transuranic waste with a surface dose rate greater than 200 mrem/hr. (Land Withdrawal Act §2(12)). The Land Withdrawal Act allows remote-handled transuranic waste to be emplaced at the WIPP, but not high-level waste. Because radiological assays alone may be insufficient for distinguishing high-level waste from transuranic waste, the generator sites need guidance on how to distinguish remote-handled transuranic waste from high-level waste. The primary distinction between these two classes of radioactive waste is the source of the waste.

DEFINITIONS

High Level Waste
1) The highly radioactive waste 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 2) other highly radioactive material that the [Nuclear Regulatory Commission], consistent with existing law, determines by rule requires permanent isolation.

Sources of definition:

Nuclear Waste Policy Act of 1982, as codified at 42 U.S.C. §10101(12);

10 CFR Part 72.3, (Nuclear Regulatory Commission regulations providing for Licensing Requirements for the Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste);

10 CFR Part 960, (Department of Energy regulations providing for General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories); and

10 CFR Part 961.11, (Department of Energy regulations providing for Standard Contract for Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste).

1) Irradiated reactor fuel; 2) liquid wastes resulting from the operation of the first cycle solvent extraction system or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuel; and 3) solids into which such liquid wastes have been converted.

Source of definition

10 CFR Part 60.2, (Nuclear Regulatory Commission regulations providing for the licensing of the Department of Energy for Disposal of High-Level Radioactive Wastes in Geologic Repositories).

The highly radioactive waste material that results from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid waste derived from the liquid, that contains a combination of transuranic waste and fission products in concentrations requiring permanent isolation.

Source of definition:

Department of Energy Order 5820.2A, Radioactive Waste Management

Spent Nuclear Fuel
Fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.

Sources of definition:

Nuclear Waste Policy Act of 1982, as codified at 42 U.S.C. §10101(23);

10 CFR Part 960.2, (Department of Energy regulations providing General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories); and

10 CFR Part 961.11, (Department of Energy regulations providing for a Standard Contract for Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste.

Transuranic Waste

The term " transuranic waste" [is] waste containing more than 100 nanocuries of alpha emitting transuranic isotopes per gram of waste, with half-lives greater than 20 years, except for --

high-level radioactive waste;

waste that the Secretary [of the Department of Energy] has determined, with the concurrence of the Administrator [of the Environmental Protection Agency], does not need the degree of isolation required by the disposal regulation; or

waste that the Nuclear Regulatory Commission has approved for disposal on a case-by-case basis in accordance with part 61 of title 10, Code of Federal Regulations.

Source of definition:

Section 2(20) of the WIPP Land Withdrawal Act

Contact-Handled Transuranic Waste
Transuranic waste with a surface dose rate not greater than 200 millirem per hour.

Source of definition:

Section 2(3) of the WIPP Land Withdrawal Act

Remote-Handled Transuranic Waste
Transuranic waste with a surface dose rate of 200 millirem per hour or greater.

Source of definition:

Section 2(12) of the WIPP Land Withdrawal Act

Packaged transuranic waste whose external dose rate exceeds 200 mrem per hour.

Source of definition:

Department of Energy Order 5820.2A

Test specimens of fuel material irradiated for R&D purposes only and not for production of power or plutonium.

Source of definition:

Department of Energy Order 5820.2A

The generator sites need an unequivocal way to select remote-handled transuranic waste for eventual disposal at the WlPP. This selection method should incorporate the existing regulatory and statutory restrictions as well as incorporating a decisive distinction between remote-handled transuranic waste and high-level waste.

METHOD FOR DISTINGUISHING REMOTE-HANDLED TRANSURANIC WASTE FROM HIGH-LEVEL WASTE, SPENT NUCLEAR FUEL, AND CONTACT-HANDLED TRANSURANIC WASTE

The following is a process to distinguish transuranic waste from high-level waste and spent nuclear fuel, as well as contact-handled transuranic waste from remote-handled transuranic waste; it incorporates the existing regulatory and statutory requirements. The steps for this process follow and are keyed to the accompanying "decision tree" diagrams.

A) The first decision point is whether the last source of the material in question has been a nuclear reactor following irradiation. If so, the material may be fuel and additional criteria need to be applied. If not, the material may be waste from a first-cycle extraction system.

B) The second decision point is whether the material is waste from the first-cycle extraction system. If so, it is high-level waste according to 10 CFR Part 60.2. If not, it may be transuranic waste.

C) The third decision point is whether the material is actually fuel. If the material is fuel, additional criteria are applied. If the material in question is not nuclear reactor fuel, it may be transuranic waste.

D) The fourth decision point is whether test specimens of fissionable materials were irradiated only for R&D purposes and not to produce power. Material irradiated solely for R&D purposes may be transuranic waste, whereas other test specimens of fissionable materials are high-level waste/spent nuclear fuel.

In a memorandum dated March 1, 1995, to Charles Hansen of the Department of Energy Richland Operations Office, Jill Lytle clarified this point (Lytle, 1995). Fuel used to power research reactors is not to be managed as remote-handled transuranic waste, but test capsules (or specimens) of developmental reactor fuel that are irradiated to determine the characteristics of the fuel sample are to be so managed. The letter gives direct guidance on the issue.

"Irradiated fuel materials that should be managed as RH-TRU waste should exhibit the following characteristics:

Have been irradiated for research and development purposes only. (Note: This should not be interpreted to imply that fuel used to 'power' test reactors may be classified as RH-TRU, but rather be classified and managed as spent nuclear fuel). [and]

Include irradiated fuel test residues, test materials, and/or any resultant fragments upon which tests were performed and resultant waste generated from experiments and/or examinations, such as polishing residue, cutting fluids, absorbents, metal fines. These may also include irradiated fuel pin fragments and dispersed particulate that cannot be readily retrieved and packaged with the fuel assemblies and intact pins. [and]

Be acceptable for final disposal at the WIPP, or appropriately addressed as part of a national program.

Irradiated fuel materials that should not [emphasis added] be managed as RH-TRU waste include:

Irradiated fuel still managed as material.

Irradiated fuel which was utilized for power or plutonium production.

Irradiated fuel accepted by the DOE for final disposal at a DOE deep geological repository (e.g. Yucca

Mountain Project Office or similar facility)."

E) The fifth decision point is whether the constituent elements of the fuel have been separated by reprocessing. The Nuclear Waste Policy Act definition of spent nuclear fuel has two criteria: 1 ) fuel withdrawn from a nuclear reactor; and 2) the constituent elements of the fuel have not been separated. Waste from the reprocessing of nuclear fuel is high-level waste.

F) The sixth decision point is whether the wastes are test specimens of developmental reactor fuel irradiated solely for R&D purposes (fuel experiments) and destructively examined to determine fuel sample characteristics (Lytle, 1995). If so, the material may be transuranic waste.

G) The seventh decision point is whether the waste meets the criteria in section 2 (18) of the Land Withdrawal Act, as amended. If so, the waste is transuranic waste. The term "transuranic waste" means waste containing more than 100 nanocuries of alpha-emitting transuranic isotopes per gram of waste, with half-lives greater than 20 years. Note that this determination is made for each payload container (as required by the Waste Acceptance Criteria), whereas all previous decision points are on a waste-stream basis.

H) The eighth decision point is whether the transuranic waste container has a surface dose rate greater than 200 mrem/hr. Contact-handled transuranic waste is transuranic waste with a surface dose rate less than or equal to 200 mrem/hr. (Land Withdrawal Act), whereas remote-handled transuranic waste is transuranic waste with a surface dose rate equal to or greater than 200 mrem/hr (Land Withdrawal Act and Department of Energy Order 5820.2A). As in G, this determination is made for each payload container as required by the Waste Acceptance Criteria.

Note: remote-handled transuranic waste destined for WIPP must meet additional criteria:

surface dose rate must be less than 1,000 rems per hour,
no more than 5 percent by volume of the remote-handled transuranic waste received at WIPP may have a surface dose rate in excess of 100 rems per hour;
Remote-handled transuranic waste received at WIPP shall not exceed 23 curies per liter maximum activity level (averaged over the volume of the canister); and
the total curies of the remote-handled transuranic waste received at WIPP shall not exceed 5,100,000 curies.

Fig. 1. TRU Waste Decision Tree

Fig. 2. CH-TRU and RH-TRU Decision Tree
REFERENCES

Disposal of High-Level Radioactive Wastes in Geologic Repositories, 10 CFR Part 60.2

General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories, 10 CFR Part 960

Licensing Requirements for the Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste, 10 CFR Part 72.3

Lytle, J. E. Memorandum (signed by Mark Frei) to Charles A. Hansen dated March 1, 1995 (unpublished). In this memorandum the Deputy Assistant Secretary for Waste Management requests the Richland Operations Office Assistant Manager for Waste Operations to incorporate attached guidance for classifying material as either spent nuclear fuel or remote-handled transuranic waste in their waste classification procedures.

Nuclear Waste Policy Act of 1982, as amended, Public Laws 97-425, 100-203,and 100-202, codified at 42 U.S.C. §§10101 et seq.

Radioactive Waste Management, DOE Order 5820.2A

Standard Contract for Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste, 10 CFR Part 961.11

Waste Acceptance Criteria for the Waste Isolation Pilot Plant, DOE/WIPP-069, Revision 5, April 1996

Waste Isolation Pilot Plant Land Withdrawal Act, Public Law 102-579 of October 30, 1992

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