REGULATORY IMPACTS ON D&D - A STATUS UPDATE
FROM ANS PERSPECTIVE
Edward Walker
Bechtel National, Inc.
Oak Ridge, TN 37830
Jas S. Devgun
Delta Environmental Corp.
1018 Rain Tree Drive
Bolingbrook, IL 60440
ABSTRACT
The impact of cleanup standards on decontamination and decommissioning (D&D) is enormous. The NRC final rule was issued in July 1997 after a lengthy draft and comment stage. American Nuclear Society (ANS) through a special committee has been reviewing federal rule making drafts and has provided input and comments. This paper discusses the rule making effort by NRC, major review comments provided by ANS, and the changes to the draft rule before it was issued as the final rule. It also discusses the NRC vs. EPA approach to cleanup standards highlighting the key differences between the two agencies. The discussion in the paper also demonstrtes inherently iterative, time-consuming and even controversial nature of the rule making process.
INTRODUCTION
As many nuclear facilities reach the end of their design life and with early shutdown of additional facilities, the decontamination and decommissioning (D&D) is rapidly becoming the only growing area in the nuclear field. The emphasis and expenditure of resources has shifted to D&D of nuclear facilities both in the private as well as in the federal sector. World-wide over sixty power reactors are no longer in operation. In addition, over two hundred of the research reactors have been shut down. In the United States, in the private sector, many of the nuclear power reactors are approaching their design life. In the federal sector, a number of facilities in the Department of Energy's nuclear complex, as well as in the Department of Defense are being decommissioned. Since the ultimate goal of D&D is to retire facilities from service while providing radiological protection and to release the sites without radiological restrictions, the impacts of cleanup standards are enormous for human health and safety and the D&D costs.
The D&D standards have continued to evolve during the past four decades. During the startup and operation of the nuclear industry spanning from the mid-50s into the mid-80s, the regulations for this industry were focused on design, construction, and operational oversight. Decommissioning activities conducted during this period were based on negotiated criteria for each individual site and regulatory guidance having minimal relationship to public risk avoidance. Added to this was the issue of regulatory authority by multiple government agencies such as the Nuclear Regulatory Commission (NRC), Environmental Protection Agency (EPA), Department of Energy (DOE), and agreement state agencies with the potential for overlapping and sometimes conflicting requirements. Starting in the early 1990s, the federal regulatory authorities, specifically the NRC and the EPA initiated efforts to draft regulatory standards that would be based on a consistent risk basis that could be applied to site-specific conditions. The NRC issued a final rule on this in July 1997, after issuing two drafts in 1993 and 1994 for review and comment. The EPA had drafted its version of the Radiation Site Cleanup Regulation in 40 CFR 196. This draft was submitted to Office of Management and Budget (OMB) in March 1996 but was never issued for public comment; it was quitely withdrawn late last year.
In its role as the major professional organization in the nuclear field, the American Nuclear Society (ANS) has interests in a broad range of nuclear related areas, including facility operations, regulations and standards, experiences from various nuclear projects, as well as in providing input to the regulations being developed by federal agencies. Regulatory actions involving decommissioning and site release are currently of specific interest to the Society, given the multi-billion dollar project activities that are planned by the nation's utilities as well as the federal government in this area.. To focus the Society's response to proposed regulatory documents, a special committee reporting to the society board of directors was formed in 1994. This committee, Special Committee on Site Cleanup Restoration Standards (SCRS), is comprised of members representing most of the society's technical divisions. It is the responsibility of this committee to draft responses for the Society to regulatory issues that may impact the interests of the Society membership. The authors serve as Chairman and Vice Chairman of the SCRS.
The ANS provided comments on both drafts of the proposed NRC rule for Radiological Criteria for License Termination, which was eventually issued in July 1997 as a final rule. This paper discusses the changes that occurred between the proposed rule and the final rule alongwith the ANS comments as they related to those changes. The paper also discusses the NRC's final rule vis a vis EPA's draft regulation.
RADIOLOGICAL CRITERIA FOR LINCENSE TERMINATION -
FROM DRAFT TO FINAL RULE AND THE SCRS INPUT
The NRC efforts for revising the 10CFR 20 for D&D began earnestly with the first draft issued in 1993 followed by the draft rule making issued in August 1994. The SCRS along with other organizations having interest in the matter, provided comments and a response to this draft rule making. The official ANS response was transmitted by the President of ANS to NRC in January 1995. The draft rulemaking was put on a hold for sometime pending the issuance of a series of NUREGs that were intended to provide technical support for the release criteria. In July, 1997. The NRC issued the long-awaited Radiological Criteria for License Termination revision to the 10 CFR 20. Several significant changes occurred as the draft evolved into the final rule. In the discussion below, we have summarized, where changes occurred based on the SCRS (ANS) comments as well as comments from other organizations.
I. Unrestricted Release
A. Basic Criteria for Unrestricted Release (Dose Limit)
Proposed Rule - Sec. 20.1404: "A site will be considered acceptable for unrestricted use if:
(a) The residual radioactivity that is distinguishable from background radiation results in a TEDE to the average member of the critical group that does not exceed 15 mrem (0.15mSv) per year."
ANS Comments: The value of 15 mrem/yr as a limit for unrestricted release is not supportable for the following reasons:
Final Rule - Sec. 20.1402: A site will be considered acceptable for unrestricted use if the residual radioactivity that is distinguishable from background radiation results in a TEDE to an average member of the critical group that does not exceed 25 mrem (0.25 mSv) per year.
Observation - The site-specific value in the Final Rule is based on a total exposure from all sources of man-made radiation (excluding medical) to a critical member of the public be limited to 100 mrem/yr and that no more than four individual sources of exposure to this individual is likely.
B. Basic Criteria for Unrestricted Release (ALARA)
Proposed Rule - Sec. 20.1404: "A site. . .(b) The residual radioactivity has been reduced to levels that are as low as reasonably achievable (ALARA)."
ANS Comments - ANS did not have any specific comments on the ALARA provisions of the draft after the NRC modified the draft to eliminate the numerical goal for ALARA of 3 mrem/yr.
Final Rule - Sec 10.1402: "A site. . ., and the residual radioactivity has been reduced to levels that are as low as reasonably achievable (ALARA). Determination of the levels which are ALARA must take into account considerations of any determents, such as deaths from transportation accidents, expected to potentially result from decontamination and waste disposal.
Observation - The phrase in italics was added to the Final Rule. This phrase is very significant in the context that remediation/D&D will not be forced by regulatory limit or goal compliance alone, but rather will allow total risk/benefit to be incorporated into the process.
C. Basic Criteria for Unrestricted Release (Groundwater Cleanup)
Proposed Rule - Sec. 20.1403(d): The licensee shall demonstrate a reasonable expectation that residual radioactivity from the site will not cause the level of radioactivity in any groundwater that is a current or potential source of drinking water to exceed the limits specified in 40 CFR Part 141. . .
ANS Comments - ANS did not have any specific comments on the groundwater pathway and/or the requirements to comply with the EPA drinking water standard.
Observation - This change and the dose criteria change (discussed in Part A) are the source of current contention between EPA and NRC. EPA has threatened to reject the MOU with NRC and place all D&D under CERCLA. The Special Committee needs to follow this closely to lend any support to NRC and its current rule.
II. Restricted Release
A. Basic Criteria for Restricted Release (Requirement)
Proposed Rule - Sec. 20.1405: "A site will be considered acceptable for license termination under restricted conditions if:
The licensee can demonstrate that further reductions in residual radioactivity necessary to comply with the provisions of Sec. 20.1404 are not technically achievable, would be prohibitively expensive, or would result in net public or environmental harm. . ."
ANS Comment - Phraseology such as "prohibitively expensive" and "net harm" was identified as subject to interpretation requiring negotiated conditions for institutional controls.
Final Rule - Sec. 20.1402: "A site will be considered acceptable for license termination under restricted conditions if:
The licensee can demonstrate that further reductions in residual radioactivity necessary to comply with the provisions of Sec. 20.1402 would result in net public or environmental harm. . ."
Observation - The requirements to demonstrate that further residual radioactivity reductions are not technically achievable or would be prohibitively expensive were dropped from this section of the Final Rule.
B. Basic Criteria for Restricted Release (ALARA Consideration)
Proposed Rule - Sec. 20.1405: The concept of ALARA was not incorporated into the provisions for restricted release.
ANS Comments - ANS did not make any comments with respect to ALARA discussion in the context of restricted release.
Final Rule - Sec. 20.1402: "A site will be considered. . .restricted conditions if:
. . .the residual levels associated with restricted conditions are ALARA. . .take into account consideration of any detriments. . ."
Observation - This allows remediation planning based on a total risk cost/benefit analysis, not on achieving verbatim compliance.
C. Basic Criteria for Restricted Release (Dose Criteria)
Proposed Rule - Sec. 20.1405(b): The licensee has made provisions for institutional controls that provide reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 15 mrem (0.15 mSv) per year.
ANS Comment - ANS commented that the phrase "reasonable assurance" is subject to interpretation.
Final Rule - Sec. 20.1403(b): The licensee has made provisions for legally enforceable institutional controls that provide reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 25 mrem (0.25 mSv) per year.
Observation - The significant changes here are the annual dose limit raised from 15 mrem/yr to 25 mrem/yr, and the addition of the phrase "legally enforceable" to institutional controls.
D. Basic Criteria for Restricted Release (Failure of Institutional Controls)
Proposed Rule - Sec. 20.1405(d): Residual radioactivity at the site has been reduced so that if the institutional controls were no longer in effect, there is reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group would not exceed 100 mrem (1 mSv) per year, and is as low as reasonably achievable. Calculations used to show compliance with this provision may not assume any benefits from earthen cover or other earthen barriers unless specifically authorized by the commission.
ANS Comments - ANS in supporting the concept for restricted release did not comment on the proposed dose limit.
Final Rule - Sec. 20.1403(e): Residual radioactivity at the site has been reduced so that if the institutional controls were no longer in effect there is reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group is as low as reasonably achievable and would not exceed either—
(1) 100 mrem (1 mSv) per year; or
(2) 500 mrem (5 mSv) per year provided the licensee --
(i) Demonstrates that further reductions. . .are not technically achievable, would be
prohibitively expensive, or would result in net public or environmental harm;
(ii) Makes provision for durable institutional controls;
(iii) Provides financial assurance to enable a responsible government entity or
independent third party. . .to carry out periodic rechecks of the site no less
frequently than every 5 years to assure that institutional controls remain in place
and to assume and carry out responsibilities for any necessary control and
maintenance of those controls.
Observations - Two significant changes occurred here. First, deletion of the restriction allowing no credit for earth cover or barrier unless specifically authorized implies that the cover may be included in the analysis to demonstrate credit for institutional controls. Second, the provision to allow restricted release above 100 mrem/yr, even with the additional requirements of durable controls, 5-year review, and financial assurance of the maintenance of those controls, allows additional flexibility for the decommissioning planning.
E. Basic Criteria for Restricted Release (Financial Assurance)
Proposed Rule - Sec. 20.1405 (c) The licensee has provided sufficient financial assurance to enable an independent third party to assume and carry out responsibilities for any necessary control and maintenance of the site. Acceptable financial assurance mechanisms are:
(1) Funds. . .segregated from licensee's assets and outside licensee's administrative control. . .
(2) Surety method, insurance or other guarantee method. . .
(3) A statement of intent in the case of federal, state, or local government licensees. . .
ANS Comments - Phrases such as "sufficient financial assurance" will prompt negotiated conditions for institutional controls. Sufficient assurance must be tied to a level of risk and to the level of risk reduction desired.
Final Rule - Sec. 20.1403 (c) The licensee has provided sufficient financial assurance to enable an independent third party, including a government custodian of a site, to assume and carry out
responsibilities for any necessary control and maintenance of the site. Acceptable
financial assurance mechanisms are:
(4) Funds. . .
(5) Surety method. . .
(6) A statement of intent. . .
(7) When a government entity is assuming custody and ownership of a site, an arrangement that is deemed acceptable by such government entity.
Observation - The additional wording introduces the potential for a government entity to assume ownership and maintenance of controls for a site for which a licensed owner is no longer identifiable.
F. Basic Criteria for Restricted Release (Public Representation)
Proposed Rule - Sec. 20.1406(b): For decommissioning where the licensee does not propose to meet the conditions for unrestricted release. . .the licensee shall convene a Site-Specific Advisory Board (SSAB). . .for the purpose of obtaining advice from affected parties regarding the proposed decommissioning.
ANS Comments - ANS endorses the concept of public participation, but has reservations for the SSAB, as defined by the draft rule. The NRC is advised to look at the local community model rather than the SSAB model. Clarify the role, components, and scope of a public participation body for advisory support.
Final Rule - Sec. 20.1403(d): The licensee has submitted a decommissioning plan or License Termination Plan (LPT). . .specifying that licensee intends to decommission by restricting use of the site. The licensee shall document in the LPT or decommissioning plan how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and incorporated, as appropriate, following analysis of that advice.
Observation - The concept of the SSAB to represent "affected parties" on decommissioning input has been deleted and replaced by the local community model.
G. Basic Criteria for Restricted Release (Affected Parties)
Proposed Rule - Sec. 20.1407 (SSAB)
(b) Membership of the SSAB shall be to the extent that representatives who are willing to
participate:
(8) Reflect the full range of interests in the affected community and region, and be composed of individuals who could be directly affected by residual radioactivity at the decommissioned site;
(9) Be selected from individuals nominated by organizations which represent these interests; and
(10) Include representatives from the licensee; local and state governments; persons residing in the vicinity of the site; citizen, environmental, environmental justice, and other public interest groups; and Indian Nation or other indigenous people that have treaty or statutory rights that could be affected.
ANS Comments - The SSAB is unique as an advisory committee, given DOE and DoD experience. It does not appear to be accountable to the party who hires it, as that party has no right to revoke its authority once it is established, nor does it necessarily represent the community at large. Unlike other advisory committees whose members are appointed because of expertise or affiliation, the SSAB members are not required to have any particular credentials. A citizen has no mechanism to suggest or require the SSAB to represent his/her views nor has recourse if the SSAB does not choose to represent them. There are already elected officials who are accountable to the citizenry and who serve at the will of the people. It seems that such groups working in conjunction with industry and the community could form a coalition that would serve the needs of all the affected parties and provide greater access to community involvement.
Final Rule - Sec. 20.1403(d) (2) In seeking advice on the issues. . .the licensee shall provide for: (i) Participation by representatives of a broad cross-section of community interests who may be affected by the decommissioning;
Observation - This paragraph and the phraseology in the opening of Sec. 20.1403(d) apply the "affected partly" concept to individuals and institutions in the community who may be affected by the decommissioning. This should allow a licensee to address those issues of concern to those most directly impacted by decommissioning activities and minimize political jousting with outside individuals and organizations with a broader agenda.
H. Alternate Criteria for License Termination
Proposed Rule - No provisions were described for a concept of alternate criteria.
ANS Comments - None made.
Final Rule - Sec. 20-1404(c)
The Commission may terminate a license using alternative criteria greater than the dose criterion of (25 mrem/yr), if the licensee—
(11) Provides assurance that. . . .it is unlikely that doses from all manmade sources combined, other than medical, would be more than 1 mSv/yr (100 mrem/yr), by submitting as analysis of possible sources of exposure;
(12) Has employed to the extent practical restrictions on site use. . .
(13) Reduces doses to ALARA levels. . .
(14) Has submitted a decommissioning plan or LTP. . .specifying that the licensee proposes to decommission by use of alternate criteria. . .shall document. . .how the advice of individuals and institutions. . .has been sought and addressed. . .
Observation - The 25 mrem/yr decommissioning limit is based on a total limit to the public of 100 mrem/yr with any individual member of the public unlikely to be exposed to more than four sources of manmade radioactivity (excluding medical). This alternate criteria would appear to allow a release above 25 mrem/yr, with no institutional controls and associated financial assurances provided:
(15) It can be shown that other sources of exposure have been identified and quantified.
(16) Site use is still restricted to something like industrial vs. residential based on demographics of the area.
(17) The levels attained are ALARA.
(18) The affected public has bought into the approach.
I. Public Notification
Proposed Rule - Sec. 20.1406(a): Upon receipt of a decommissioning plan from the licensee, or a proposal by the licensee for restricted release of a site. . .or whenever the Commission deems such notice to be in the public interest, the Commission shall:
(19) Notify and solicit comments from the local and state governments in the vicinity of the site and any Indian Nation or other indigenous people that have treaty or statutory rights that could be affected by the decommissioning; and
(20) Publish a notice in the Federal Register and in a forum, such as local newspapers, which is readily accessible to individuals in the vicinity of the site and solicit comments from affected parties.
ANS Comments - ANS has no comments regarding the proposed rule on pubic notification.
Final Rule - Sec. 20.1405: Upon receipt of a LPT or decommissioning plan. . .the Commission shall:
(a) Notify and solicit comments from
(1) . . .
(2) the EPA for cases where the licensee proposes to release a site pursuant to 20.1404 (Alternate Criteria for License Termination)
(3) Publish a notice. . .
Observation - The only change here is to involve EPA if the license is to be terminated above 25 mrem/yr with no institutional controls.
J. Minimization of Contamination
Proposed Rule - Sec. 20.1408: Applicants for licenses, other than renewals. . .shall describe in the application how facility design and procedures for operation will minimize, to the extent practicable, contamination of the facility and the environment, facilitate eventual decommissioning, and minimize, to the extent practicable, the generation of waste.
ANS Comments - ANS recommends that Sec. 20.1408, regarding the minimization of contamination, be deleted from the proposed rule and be addressed in appropriate parts of 10 CFR regarding the operation of those types of facilities.
Final Rule - Sec. 20.1406: No change from proposed rule.
Observation - Comments not accomodated.
NRC VS. EPA APPROACH
Several of the changes made by the NRC result in significant differences between the NRC final rule and the EPA draft rule in 40 CFR 196. The two major differences are:
1. Unrestricted release criteria:
NRC = 25 mrem/yr
EPA = 15 mrem/yr
2. Groundwater pathway
NRC = included within the 25 mrem/year
EPA = 4 mrem/year in accordance with 40 CFR 141
Fundamentally, the NRC criteria, is less restrictive than what EPA favors. For the groundwater pathway, EPA has set maximum contaminant levels in drinking water for several radionuclides, and a dose-based limit for beta particle activity at 4 mrem/yr. NRC's final rule does not include a separate groundwater criteria; it is included within the 25 mrem/yr limit.
The differences have led to a major interagency dispute. Before the final rule was issued, NRC and EPA were working on a Memorandum of Understanding to address their differences. The EPA has threatened to withdraw from this process and place all decommissioning under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authority, which would put these sites on the National Priorities List (NPL). By August 1998, EPA Headquarters had issued a guidance memorandum to Regional Offices rejecting the NRC final rule as a basis for Superfund cleanup levels. EPA intends to use the 15 mrem/yr as the maximum dose limit. The NRC/EPA dispute escalated to Congress with three senators asking the opinion of the Office of Management and Budget as to whether EPA's guidance document constitutes an improper rulemaking.
The differences highlight the two agencies differing philosphies. The NRC's limit is derived from determining the annual dose above background that is safe for general public and then making a policy decision as to what increment can be reasonably assigned to a decommissioned site. On the other hand, the EPA approach is based in carcinogenic risk assessment terms, where EPA deems a risk in the range of 10-4 to 10-6 as acceptable. The EPA limit of 15 mrem/yr is equaivalent to 3x 10-4 increased lifetime risk that is slightly outside the range that EPA considers as acceptable carcinogenic risk. The interagency differences also originate from the fact that NRC is responsible for radioactive facilities and sites under the Atomic Energy Act and EPA under CERCLA has broad authority on cleanup of hazardous sites.
It is worth noting that federal agencies (NRC, EPA, DOE, DOD) having control of radioactive materials have been collaborating over the past several years to develop a consensual process for radioactive site cleanup. One outcome of this collaborative effort has been the issuance of a draft manual (MARSSIM) for planning, conducting, evaluating, and documenting radiological surveys for demonstrating compliance with dose-based regulations.
CONCLUSIONS
The cleanup standards for D&D have enormous impact on the project viabilities, their cost, and their public acceptance. Unfortunately, the rule making in this area has been a fragmaented effort. With potential overlapping jurisdiction, federal agencies have had their own individual approaches to drafting cleanup regulations. The NRC and EPA has had even acrimonious interagency correspondence because their approches and standards do not agree. The NRC final rule was issued in July 1997 after being in draft stages since 1993. The NRC cleanup standard is based on a dose limit of 25 mrem/yr. The EPA has objection to this as their draft regulations have a limit of 15 mrem/ yr. The EPA also wants its groundwater protection limit of 4 mrem/yr applied.
The special committee of ANS has reviewed regulatory drafts and provided comments, which as appropriate have been sent to the federal agencies as the official response of ANS. As the discussion in this paper shows through ANS comments on the NRC draft, the rule making process is an iterative, time-consuming, consensus building process. It is also cumbersome. Nevertheless, there is no better way, because ultimately, the cleanup standards have such an enormous impact on human health and safety as well as the cost to society for the cleaanup of radioactive sites. Because the background dose to any individual is an order of magnitude higher than any of the proposed dose limits, and because the cleanup to background levels (or below) in terms of radionuclides, is neither ecnomically feasible nor scientifically defensible, the cleanup standards and their acceptance must by nature be through consensus. At these low dose limits, the health and safety is not considered at risk.
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