Notice2021-27555
Assessment of Department of Energy's Interpretation of the Definition of High-Level Radioactive Waste
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Published
December 21, 2021
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE) affirms its interpretation of the statutory term "high-level radioactive waste" (HLW) as defined in the Atomic Energy Act of 1954, as amended (AEA), and the Nuclear Waste Policy Act of 1982, as amended (NWPA). The HLW interpretation (HLWI) is consistent with the law, the best available science and data, and the recommendations of the Blue Ribbon Commission on America's Nuclear Future. In developing the HLWI, the views of members of the public and the scientific community were considered.
Full Text
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<title>Federal Register, Volume 86 Issue 242 (Tuesday, December 21, 2021)</title>
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[Federal Register Volume 86, Number 242 (Tuesday, December 21, 2021)]
[Notices]
[Pages 72220-72225]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27555]
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DEPARTMENT OF ENERGY
Assessment of Department of Energy's Interpretation of the
Definition of High-Level Radioactive Waste
AGENCY: Office of Environmental Management, Department of Energy.
ACTION: Notice.
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SUMMARY: The U.S. Department of Energy (DOE) affirms its interpretation
of the statutory term ``high-level radioactive waste'' (HLW) as defined
in the Atomic Energy Act of 1954, as amended (AEA), and the Nuclear
Waste Policy Act of 1982, as amended (NWPA). The HLW interpretation
(HLWI) is consistent with the law, the best available science and data,
and the recommendations of the Blue Ribbon Commission on America's
Nuclear Future. In developing the HLWI, the views of members of the
public and the scientific community were considered.
ADDRESSES: This Federal Register Notice (FRN) and other documents
relevant to DOE's HLWI are available on the Department's website at:
<a href="https://www.energy.gov/em/program-scope/high-level-radioactive-waste-hlw-interpretation">https://www.energy.gov/em/program-scope/high-level-radioactive-waste-hlw-interpretation</a>.
FOR FURTHER INFORMATION CONTACT: James Joyce at <a href="/cdn-cgi/l/email-protection#b8d2d9d5ddcb96d2d7c1dbddf8ddd596dcd7dd96dfd7ce"><span class="__cf_email__" data-cfemail="177d767a7264397d786e747257727a3973787239707861">[email protected]</span></a>
or (202) 586-5000.
SUPPLEMENTARY INFORMATION: The Secretary of Energy is committed to
implementing the Department's environmental cleanup programs in a
manner that is consistent with the law and that makes evidence-based
decisions guided by the best available science and data. In early 2021,
various stakeholders submitted both supportive and non-supportive
letters to the Secretary of Energy regarding the HLWI. The Department
assessed the HLWI in light of this commitment. This FRN documents the
results of that assessment.
As explained in this FRN, DOE affirms its interpretation of the
statutory term ``high-level radioactive waste'' (HLW) as defined in the
AEA \1\ and NWPA.\2\ As DOE stated in the Supplemental Notice
Concerning U.S. Department of Energy Interpretation of High-Level
Radioactive Waste, 84 FR 26835 (June 10, 2019, FRN) (Supplemental
Notice), and the High-Level Radioactive Waste Interpretation Limited
Change to DOE Manual 435.1-1, Radioactive Waste Management Manual and
Administrative Change to DOE Order 435.1, Radioactive Waste Management,
86 FR 5173 (January 19, 2021, FRN), DOE interprets the statutory term
``high-level radioactive waste'' to mean that not all wastes from the
reprocessing of spent nuclear fuel (reprocessing wastes) are HLW. DOE
interprets the statutory term such that some reprocessing wastes may be
classified as not HLW (non-HLW) and may be safely disposed of in
accordance with its radiological characteristics. DOE confirms that the
HLWI is consistent with the law, the best available science and data,
and the recommendations of the Blue Ribbon Commission on America's
Nuclear Future. DOE further affirms that the views of the public and
the scientific community were considered in developing the HLWI.
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\1\ 42 U.S.C. 2011 et seq.
\2\ 42 U.S.C. 10101 et seq.
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I. Background
Building on the recommendations of the Blue Ribbon Commission on
America's Nuclear Future issued in 2012,\3\ the development of the HLWI
began in 2016 at the direction of then Secretary Moniz. The HLWI was
finalized in 2019, and was successfully implemented on a single waste
stream in 2020.
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\3\ This commission was formed in 2010 by then-Secretary of
Energy Chu at the request of President Obama to conduct a
comprehensive review of policies for managing the back end of the
nuclear fuel cycle and recommend a new strategy. <a href="https://www.energy.gov/ne/downloads/blue-ribbon-commission-americas-nuclear-future-report-secretary-energy">https://www.energy.gov/ne/downloads/blue-ribbon-commission-americas-nuclear-future-report-secretary-energy</a>.
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The Department sought public comments on its HLWI through its
Request for Public Comment on the U.S. Department of Energy
Interpretation of High-Level Radioactive Waste, 83 FR 50909 (October
10, 2018, FRN). The 90-day public comment period, including a 30-day
extension to submit comments, invited public input in order to better
understand stakeholder perspectives, and sought to increase
transparency and enhance public understanding of DOE's views of its
legal authority. DOE received a total of 5,555 comments, roughly 360 of
which were distinct comments, from a variety of stakeholders: Members
of the public; tribal nations; members of Congress; numerous state and
local governments; and one federal agency, the Nuclear Regulatory
Commission (NRC). All input was important to the process and all
comments were carefully and fully considered by DOE.
In June 2019, after careful consideration of all comments received
on the October 2018 FRN, DOE issued the Supplemental Notice. The
Supplemental Notice provided additional explanation of DOE's
interpretation as informed by public review and comment and further
consideration by DOE following the October 2018 FRN. The Supplemental
Notice also provided responses to significant and recurring comments
received through the public comment process. In its Supplemental
Notice, DOE explained its interpretation of the term HLW, as defined in
the AEA and NWPA.\4\ DOE has the long-standing authority and
responsibility under the AEA to ensure that all DOE radioactive waste--
including reprocessing waste--is managed and disposed of in a safe
manner. The AEA and NWPA define HLW as:
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\4\ The AEA and NWPA include the same definition of HLW.
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(A) The highly radioactive material resulting from the reprocessing
of spent nuclear fuel, including liquid waste produced directly in
reprocessing and any solid material derived from such liquid waste that
contains fission products in sufficient concentrations; and
(B) Other highly radioactive material that the [NRC], consistent
with existing law, determines by rule requires permanent isolation.
42 U.S.C. 10101(12); see 42 U.S.C. 2014(dd). In Paragraph A of 42
U.S.C. 10101(12), Congress limited the designation of HLW to those
materials that are ``highly radioactive.'' This
[[Page 72221]]
limiting term applies to all reprocessing waste, including the ``liquid
waste produced directly in reprocessing'' and ``any solid material
derived from such liquid waste.'' The use of the limiting term,
``highly radioactive,'' demonstrates that Congress intended to
distinguish between reprocessing waste that is ``highly radioactive''
and reprocessing waste that is not. If Congress had intended to define
all reprocessing waste as HLW regardless of its radiological
characteristics, it would not have included the ``highly radioactive''
requirement and instead defined HLW as ``all waste material resulting
from the reprocessing of spent nuclear fuel.''
Similarly, for ``any solid material derived from'' the ``liquid
waste produced directly in reprocessing,'' Congress also specified that
in addition to being ``highly radioactive'' it must also contain
fission products in ``sufficient concentrations.'' The terms ``highly
radioactive'' and ``sufficient concentrations'' are not defined in the
AEA or the NWPA. By providing in Paragraph A that liquid reprocessing
waste is HLW only if it is ``highly radioactive,'' and that solid
material derived from liquid reprocessing waste is HLW only if it is
``highly radioactive'' and contains fission products in ``sufficient
concentrations'' without further defining these standards, Congress
left it to DOE to determine when the standards are met for reprocessing
wastes.
DOE has evaluated the meaning of these terms based on its
historical knowledge, experience, and expertise in managing
reprocessing wastes. DOE's interpretation is an articulation of the
technical criteria that can be applied to individual waste streams on a
case-by-case basis to determine whether the standard for HLW has been
met. DOE also notes that in the NRC's comments on the interpretation,
the NRC staff stated that they ``agree with the concept proposed in
Federal Register October 10 Notice (83 FR 50909) that radioactive waste
may be classified and disposed of in accordance with its radiological
characteristics.'' DOE places significant weight on the NRC's views of
matters relating to the safe management and disposal of radioactive
waste, including the HLWI.
As explained in the Supplemental Notice, DOE has both the
scientific and technical expertise as well as the legal authority to
interpret the term HLW in the AEA and NWPA to determine that certain of
its reprocessing wastes are not HLW based on their radiological
characteristics. DOE interprets those statutes to provide that
reprocessing wastes are properly classified as non-HLW where the
radiological characteristics of the waste, in combination with
appropriate disposal facility requirements for safe disposal,
demonstrate that disposal of such waste is fully protective of human
health and the environment. Specifically, as stated in the Supplemental
Notice, DOE interprets the statutes to provide that a reprocessing
waste may be determined to be non-HLW if the waste meets either of the
following two criteria:
(I) Does not exceed concentration limits for Class C low-level
radioactive waste as set out in section 61.55 of title 10, Code of
Federal Regulations, and meets the performance objectives of a disposal
facility; or
(II) Does not require disposal in a deep geologic repository and
meets the performance objectives of a disposal facility as demonstrated
through a performance assessment conducted in accordance with
applicable requirements.
Reprocessing waste meeting either I or II of the criteria is non-
HLW, and--pursuant to appropriate processes--may be classified and
disposed of in accordance with its radiological characteristics in an
appropriate disposal facility provided all applicable requirements of
the disposal facility are met.
On June 10, 2019 (84 FR 26847), in determining whether and how to
implement the HLWI specific to a particular waste stream, DOE initiated
a public process pursuant to the National Environmental Policy Act
(NEPA) to analyze the potential environmental impacts associated with
disposing of up to 10,000 gallons of stabilized (grouted) Defense Waste
Processing Facility (DWPF) recycle wastewater from the Savannah River
Site (SRS) at a commercial low-level radioactive waste (LLW) disposal
facility located outside of South Carolina licensed by either the NRC
or an Agreement State. In August 2020, DOE completed an environmental
assessment (EA) (DOE/EA-2115) and published a Finding of No Significant
Impact (85 FR 48236). DOE applied the HLWI to a specific waste stream,
shipping eight gallons of the SRS DWPF recycle wastewater to the Waste
Control Specialists LLC Federal Waste Facility, a licensed commercial
LLW facility located near Andrews, Texas, for stabilization and
disposal as non-HLW.\5\
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\5\ <a href="https://www.energy.gov/nepa/doeea-2115-commercial-disposal-defense-waste-processing-facility-recycle-wastewater-savannah">https://www.energy.gov/nepa/doeea-2115-commercial-disposal-defense-waste-processing-facility-recycle-wastewater-savannah</a>.
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DOE's January 19, 2021, FRN (86 FR 5173) announced a limited change
to DOE Manual 435.1-1, Radioactive Waste Management Manual, to formally
incorporate the Department's interpretation of the statutory definition
of HLW. Additionally, DOE made an administrative change to DOE Order
435.1, Radioactive Waste Management. The revised Manual includes DOE's
interpretation of the statutory term HLW as defined in the AEA and
NWPA.
Pursuant to the HLWI, on January 19, 2021, DOE issued the Notice,
Draft Environmental Assessment for the Commercial Disposal of Savannah
River Site Contaminated Process Equipment (86 FR 5175), announcing its
intent to prepare a draft EA (DOE/EA-2154) pursuant to NEPA to dispose
of contaminated process equipment from SRS at a commercial LLW disposal
facility located outside of South Carolina licensed by either the NRC
or an Agreement State. As explained in a separate Notice of
Availability, Draft Environmental Assessment for the Commercial
Disposal of Savannah River Site Contaminated Process Equipment, which
is being published in the Federal Register concurrently with this FRN,
the draft EA analyzes capabilities for alternative disposal options
through the use of existing, licensed, off-site commercial disposal
facilities. The SRS contaminated process equipment would be
characterized, stabilized as appropriate, and packaged, and if the
waste acceptance criteria and performance objectives of a specific
disposal facility are met, DOE could consider whether to dispose of the
waste as LLW under the Department's interpretation of HLW.
The process for public comment on the draft EA for the Commercial
Disposal of Savannah River Site Contaminated Process Equipment is
explained in the separate Notice of Availability. DOE is committed to
robust, informed, stakeholder participation and highly encourages all
interested individuals and organizations to further provide input to
DOE on its implementation at SRS for this second waste stream under the
HLWI, using that NEPA process. DOE will continue to solicit comments,
as appropriate, on individual actions related to implementing the HLWI,
for example, through the NEPA process.
At this time, DOE is not proposing to implement the HLWI at any
other site or for any other waste stream. DOE will continue to evaluate
its waste inventories and related management and disposal options, and
expects to engage openly with stakeholders regarding potential future
opportunities to implement the HLWI more broadly. Any decisions,
however, about whether and how the interpretation will apply to
[[Page 72222]]
other wastes at any specific site and whether such waste may be managed
as non-HLW will be the subject of subsequent actions.
II. Assessment
After extensive policy and legal assessment, DOE affirms the HLWI
is consistent with the law, guided by the best available science and
data, and that the views of members of the public and the scientific
community have been considered in its adoption. The HLWI is a science-
based tool to help further the tank waste cleanup mission across the
country.
In its assessment, documented below, the Department evaluated
whether: (1) The HLWI is based on the best available science and data;
(2) the HLWI is consistent with law; (3) the views of members of the
public and the scientific community have been considered in adopting
the HLWI; (4) the Department has a rigorous decision-making process in
place to ensure future application of the HLWI to individual waste
streams will consider--through NEPA or analogous processes (e.g.,
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA))--environmental justice, protection of the environment and
public health, impact on access to clean air and water, limit on
exposure to hazardous chemicals and radioactive materials, and impact
on greenhouse gas emissions and climate change, which are highlighted
by Executive Order 13990, Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis,\6\ and (5) the
Department has processes in place to gather input from the public and
stakeholders, including state, local, tribal, and territorial
officials, scientists, labor unions, environmental advocates, and
environmental justice organizations during future applications of HLWI
to individual waste streams.
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\6\ Executive Order 13990 states it is the Administration's
policy ``to listen to the science; to improve public health and
protect our environment; to ensure access to clean air and water; to
limit exposure to dangerous chemicals and pesticides; to hold
polluters accountable, including those who disproportionately harm
communities of color and low-income communities; to reduce
greenhouse gas emissions; to bolster resilience to the impact of
climate change; to restore and expand our national treasures and
monuments; and to prioritize both environmental justice and the
creation of the well-paying union jobs necessary to deliver on these
goals.''
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(1) The HLWI is based on the best available science and data.
Waste characteristics, and not the origin or source of a waste,
determine the corresponding risks to workers, the public, and the
environment. Current DOE management practices are generally based on
waste characteristics (which determines risk) and not solely origin or
source (which does not determine risk). The waste characteristics are
based on rigorous sampling and analysis and documented in accordance
with strict quality assurance standards.
DOE implements the HLWI through well-established statutes,
regulations, requirements and policies included but not limited to:
<bullet> AEA and NWPA;
<bullet> Regulation and oversight of nuclear waste disposal
facilities:
[cir] LLW: 10 Code of Federal Regulations (CFR) part 61, Licensing
Requirements for Land Disposal of Radioactive Waste;
[ssquf] All commercial disposal facilities must be designed,
constructed, operated and closed to meet relevant safety standards.
[ssquf] Commercial LLW disposal facilities are licensed by either
NRC or Agreement States under 10 CFR part 61.
[cir] Transuranic waste generated from atomic energy defense
activities:
[ssquf] 40 CFR part 191, Environmental Radiation Protection
Standards for Management and Disposal of Spent Nuclear Fuel, High-Level
and Transuranic Radioactive Wastes;
[ssquf] 40 CFR part 194, Criteria for the Certification and Re-
Certification of the Waste Isolation Pilot Plant's Compliance with the
40 CFR part 191 Disposal Regulations;
<bullet> CERCLA;
<bullet> Resource Conservation and Recovery Act (RCRA);
<bullet> NEPA; and
<bullet> DOE Order 144.1, Department of Energy Tribal Government
Interactions and Policy.
Disposal of reprocessing waste based on radiological
characteristics versus its source is a science-based approach as
demonstrated by:
<bullet> Recommendations by the Blue Ribbon Commission on America's
Nuclear Energy Future, tasked by then-Secretary of Energy Chu, at the
request of President Obama (2012),\7\ which concluded that ``[t]he most
important overarching criticism of the U.S. waste classification system
is that it is not sufficiently risk-based. Rather, it is (for the most
part) directly or indirectly source-based--that is, based on the type
of facility or process that produces the waste rather than on factors
related to human health and safety risks.'' The Blue Ribbon Commission
also found that ``the definition of HLW, in particular, has attracted
the most criticism'' for being insufficiently risk-based, noting that
``to the extent that terms such as `highly radioactive,' `sufficient
concentrations,' and `requires permanent isolation' are used to define
HLW, they have not been quantified.''
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\7\ <a href="https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf">https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf</a>.
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<bullet> Affirmation from six National Laboratories: ``The national
laboratories have reviewed the proposal and support the revised
interpretation based on its technical attributes and potential complex-
wide benefits. . . . We believe that classification of reprocessing
waste for disposal based on radiological risk provides the best path to
accelerating the safe long-term stabilization and disposition of a wide
variety of waste streams and provides immediate benefit to the health
and safety of the worker, communities, and environment across the
complex.'' \8\
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\8\ Letter from the Directors of the Savannah River National
Laboratory, Idaho National Laboratory, Sandia National Laboratories,
Pacific Northwest National Laboratory, Los Alamos National
Laboratory, and Oak Ridge National Laboratory to the Secretary of
Energy, dated March 25, 2019.
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<bullet> International guidelines for management and disposal of
radioactive waste, i.e., International Atomic Energy Agency Safety
Series, Classification of Radioactive Waste, Report No. 111-G-1.1,
Vienna (1994).
<bullet> NRC's public comments on the HLWI; NRC staff ``agree with
the concept proposed [in the October 2018 FRN] that radioactive waste
may be classified and disposed of in accordance with its radiological
characteristics.''
<bullet> Numerous other independent reports, e.g., Massachusetts
Institute of Technology, The Future of the Nuclear Fuel Cycle, An
Interdisciplinary MIT Study (2011), National Research Council, Risk and
Decisions About Disposition of Transuranic and High-Level Radioactive
Waste (2005), Government Accountability Office (GAO), GAO-17-317, High
Risk Series--Progress on Many High-Risk Areas, While Substantial
Efforts Needed on Others (2017), Energy Communities Alliance, Waste
Disposition: A New Approach to DOE's Waste Management Must Be Pursued
(2017).\9\
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\9\ <a href="https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf">https://www.energy.gov/sites/default/files/2019/06/f63/Independent-Reports-Supporting-a-Risk-Based-Approach-to-Radioactive-Waste-Management-June-2019.pdf</a>.
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Lastly, the HLWI is consistent with how wastes from non-
reprocessing sources (e.g., decontamination and decommissioning,
environmental restoration) are classified. It does not change existing
requirements for protectiveness of human health, the
[[Page 72223]]
environment and workers (i.e., waste disposal must comply with
performance objectives, waste acceptance criteria, license conditions/
permits, and all other existing applicable requirements).
In summary, implementation of the HLWI is based on waste
characterization and analysis performed in accordance with rigorous
quality assurance requirements; is consistent with the existing
framework of statutes, regulations, and policies, including NEPA, RCRA,
and CERCLA; is consistent with the recommendations of, or has been
affirmed by, highly technical and influential organizations such as the
Blue Ribbon Commission on America's Nuclear Energy Future, six National
Laboratories, the International Atomic Energy Agency, the NRC staff,
and independent technical reports.
(2) The HLWI is consistent with law.
DOE affirms the detailed explanation of the Department's legal
authority to issue and implement the HLWI set forth in the Supplemental
Notice. Two general points from the Supplemental Notice warrant
emphasis here.
First, DOE's interpretation is consistent with the plain language
of the HLW definition in the AEA and NWPA. As discussed in the
``Background'' section of this FRN and further explained in the
Supplemental Notice, the statutory text in Paragraph A of the HLW
definition \10\ indicates that not all reprocessing waste is HLW. The
adverb, ``highly,'' modifies ``radioactive,'' which indicates that the
degree of radioactivity is relevant to the definition. If certain
reprocessing waste is not ``highly'' radioactive, such waste would be
excluded from the definition of HLW. Further, the use of ``highly''
suggests that there should be a threshold for the level of
radioactivity because even ``moderately'' radioactive material would
not qualify. The phrase ``sufficient concentrations'' likewise
indicates that there must be a concentration level that would be
``insufficient,'' and material with concentrations of fission products
below that level would not be HLW. Neither the AEA nor the NWPA define
the phrases ``highly radioactive'' or ``sufficient concentrations.''
These phrases are inherently ambiguous and necessarily require an
exercise of interpretative judgment by DOE--the agency charged with
``provid[ing] for safe storage, processing, transportation, and
disposal of'' reprocessing and other radioactive wastes resulting from
the United States' defense program. See 42 U.S.C. 2123(a)(3), 5814,
7151(a).
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\10\ 42 U.S.C. 10101(12); see also 42 U.S.C. 2014(dd).
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DOE's view is that the appropriate dividing line between
reprocessing waste that is ``highly radioactive'' and waste that is
not, and between reprocessing waste that contains fission products in
``sufficient concentrations'' and waste that does not, is based on the
risk the waste poses--specifically, whether or not the waste can be
disposed of safely in an existing facility that is not a deep geologic
repository. As reflected in the NWPA, deep geologic disposal is the
internationally recognized and technically viable means to provide the
long-term isolation necessary to safely dispose of waste that,
according to the NRC, has historically been described as HLW--waste
that contains both highly concentrated short-lived radionuclides and
long-lived radionuclides. Because not all radioactive wastes include
this combination of radionuclides, the NRC has established a regulatory
framework in 10 CFR part 61 that differentiates wastes based on their
radiological characteristics.\11\ This framework allows lower-risk
wastes to be disposed of in facilities that are not deep geologic
repositories, so long as stringent technical requirements to protect
public health and the environment are met.
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\11\ In its regulations, the NRC has identified classes of LLW--
Class A, B, or C--for which near-surface disposal is safe for public
health and the environment. Waste that exceeds the Class C tables in
10 CFR 61.55 also may be safely disposed in a near-surface disposal
facility under certain conditions. This waste classification regime
is based on the concentration levels of a combination of specified
short-lived and long-lived radionuclides in a waste stream, with
Class C LLW having the highest concentration levels. In accordance
with NRC regulations, 10 CFR 61.55(a)(2)(iv) and 10 CFR 61.58, waste
that exceeds the Class C levels is evaluated on a case-specific
basis to determine whether it requires disposal in a deep geologic
repository, or whether an alternative disposal facility can be
demonstrated to provide safe disposal.
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Second, DOE's interpretation is a reasonable and appropriate
exercise of the Department's authority to protect human health and the
environment.\12\ The interpretation is informed by DOE's significant
historical knowledge, experience, and technical expertise in safely
managing reprocessing and other radioactive wastes resulting from the
United States' defense program and government-sponsored nuclear energy
research. Among other things, the interpretation incorporates the well-
established principles and standards of the NRC's regulatory framework
for the disposal of LLW, and--as discussed previously--it is consistent
with the recommendations of, or has been affirmed by, highly technical
and influential organizations such as the Blue Ribbon Commission on
America's Nuclear Energy Future, six National Laboratories, the
International Atomic Energy Agency, the NRC staff, and independent
technical reports.
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\12\ See, e.g., AEA Sec. 91(a)(3), 42 U.S.C. 2121(a)(3); AEA
Sec. 161(b), 42 U.S.C. 2201(b).
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(3) The views of members of the public and the scientific community
have been considered in adopting the HLWI.
During the development of the HLWI, DOE provided opportunities to
interested parties and stakeholders for meaningful input/comment. DOE
issued its HLWI in the Federal Register in October 2018 for a 60-day
period and extended it for an additional 30 days. Approximately 5,555
comments were received from citizens, federal and state regulatory
agencies, lawmakers, tribal nations, scientific and environmental
organizations, and state and local governments. Each of these comments
was carefully considered by DOE in development of the HLWI criteria and
DOE published the responses to comments by major topic in the
Supplemental Notice. For example, in response to NRC's comment, DOE
modified the interpretation's first criterion by adding the requirement
that waste at or below Class C LLW limits must also meet the
performance objectives of a disposal facility. In response to comments
by other stakeholders concerning the propriety of DOE determining for
itself what is HLW and non-HLW, DOE explained that Congress had
assigned DOE this role through the AEA, and that DOE is accountable to
a number of external regulatory, oversight, and technical standards
entities including the NRC, Defense Nuclear Facilities Safety Board,
U.S. Environmental Protection Agency, state agencies, as well as the
National Council on Radiation Protection and Measurements and
International Commission on Radiological Protection.
Throughout this process, as requested, DOE officials met with state
and federal officials, tribal nation representatives, industry, and
other stakeholders, as well as provided briefings at multiple
stakeholder forums.
(4) The Department has a rigorous decision-making process in place
to ensure future application of the HLWI to individual waste streams
will consider--through NEPA or analogous processes (e.g., CERCLA)--
environmental justice, protection of the environment and public health,
impact on access to clean air and water, limit on exposure to hazardous
chemicals and radioactive materials, and impact on greenhouse gas
emissions and climate
[[Page 72224]]
change, which are highlighted by Executive Order 13990, Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis.
The integrity of the federal decision-making is ensured by DOE's
compliance with the existing framework of statutes, regulations, and
policies, including, but not limited to, NEPA, RCRA, and CERCLA; DOE's
transparent processes (e.g., public input through NEPA and technical
documents); and independent oversight by NRC and/or Agreement States
through every phase of radioactive waste management and disposal at
commercial facilities. The HLWI complies with Administration policies,
as outlined in Executive Order 13990.
<bullet> Environmental justice: Application of the HLWI could
remove reprocessing waste from the states and proximities to tribal
nations and other Native American communities where it has been stored
for decades and provide for the disposal of these wastes in facilities
constructed and regulated for such purposes. Environmental justice
issues are evaluated as part of DOE's NEPA process. In accordance with
Executive Order 12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations, DOE is required to
identify and address the disproportionately high and adverse human
health or environmental effects of its actions on minority and low-
income populations, to the greatest extent practicable and permitted by
law.
<bullet> Protection of the environment and public health:
Application of the HLWI could reduce the length of time that
radioactive waste is stored on-site at DOE facilities, increasing
safety for workers, the public, and the environment. For off-site
commercial disposal of reprocessing waste determined to be non-HLW,
federal requirements (10 CFR part 61) to protect human health and the
environment are embedded in the NRC and Agreement State's design,
permitting and operations license conditions. DOE must comply with the
existing NRC and Agreement State regulatory framework and federal laws
(e.g., CERCLA) before any waste can be disposed including evaluating
waste acceptance criteria and impacts on performance objectives of
disposal facilities, preparing or revising permits and obtaining
regulatory approvals, and coordinating with stakeholders. For
commercial facilities, the NRC or the Agreement State provides
oversight through every phase of LLW management and disposal. In no
case would the HLWI abrogate DOE's responsibilities under laws,
regulations, agreements, or permit requirements. Nor does it change
DOE's existing statutory authorities or those of its regulators at the
federal, state, or local level.
<bullet> Impact on access to clean air and water: Application of
the HLWI to a specific waste stream would comply with the Clean Air
Act, Clean Water Act, and other federal regulations for protection of
clean air and water. Potential impacts to air and water are evaluated
under NEPA. Primary sources of air pollutants, including hazardous air
pollutants, are identified and assessed during the NEPA evaluation for
each of the alternatives. Impacts on groundwater quality, potential
impacts to stormwater runoff, stream quality, wetlands quality, etc.
are identified and assessed during the NEPA evaluation for each of the
alternatives.
<bullet> Limit on exposure to hazardous chemicals and radioactive
materials: \13\ Application of the HLWI to a specific waste stream
would comply with the AEA, NWPA, CERCLA, RCRA, and other federal
regulations for protection of human health and environment. Potential
impacts due to exposures to hazardous chemicals and radioactive
materials as a result of reprocessing waste being determined to be non-
HLW are evaluated as part of the NEPA process. The NEPA evaluation
identifies any special precautions needed to transport hazardous
materials, if required, as part of the proposed action or alternatives
and identifies any on-site treatment, engineering, or administrative
controls that may be applied to the hazardous and radioactive waste
encountered.
---------------------------------------------------------------------------
\13\ Executive Order 13990 uses the terms ``dangerous chemicals
and pesticides.'' DOE's assessments focus on hazardous materials,
hazardous substances, hazardous wastes, and radiological materials,
depending on the context.
---------------------------------------------------------------------------
<bullet> Potential impacts on greenhouse gas emissions and climate
change: Potential greenhouse gas emissions and potential impacts to
climate change would be evaluated consistent with Council on
Environmental Quality (CEQ) and DOE NEPA regulations.
(5) The Department has processes in place to gather input from the
public and stakeholders, including state, local, tribal, and
territorial officials, scientists, labor unions, environmental
advocates, and environmental justice organizations during future
applications of HLWI to individual waste streams.
The Department has robust, formal public review and comment
processes--such as those under NEPA, RCRA, and CERCLA--that provide
additional opportunities for public participation on potential future
applications of the HLWI. Informed stakeholder participation, including
members of the environmental justice community, in DOE clean-up
decisions is required by these statutes and environmental regulations
and policies. Additionally, DOE Order 144.1, Department of Energy
Tribal Government Interactions and Policy, requires government-to-
government consultations with affected tribal nations to ensure that
tribal rights, including concerns regarding cultural resources
management, are considered in clean-up decisions.
<bullet> Public participation requirements for DOE NEPA activities
are specified in 40 CFR 1500-1508 and 10 CFR part 1021. All Federal
agencies are required to provide meaningful opportunities for public
participation.
<bullet> RCRA implementing regulations (e.g., 40 CFR parts 124 and
270), as administered by the U.S. Environmental Protection Agency and
state regulatory agencies, requires public participation during the
hazardous waste permitting process (e.g., permit to remove and treat
tank mixed waste) and during the site corrective action program (e.g.,
tank closures) and DOE follows these requirements. The RCRA Public
Participation Manual describes the many public participation activities
required by federal RCRA permitting regulations.
<bullet> CERCLA, as implemented by the National Contingency Plan,
requires specific community involvement activities be undertaken at
certain points throughout the Superfund process (40 CFR
300.430(c)(2)(ii)), and DOE follows these requirements. The CERCLA
program requires public participation, and the Superfund Community
Involvement Handbook describes community involvement activities during
Superfund response actions (see, e.g., Chapter 4).
<bullet> DOE Order 144.1, Department of Energy Tribal Government
Interactions and Policy, communicates departmental, programmatic, and
field responsibilities for interacting with tribal nations. It provides
direction to all departmental officials, staff, and contractors
regarding fulfillment of trust obligations and other responsibilities
arising from departmental actions which may potentially impact American
Indian and Alaska Native traditional, cultural, and religious values
and practices; natural resources; treaty and other federally recognized
and reserved rights. DOE conducts government-to-government
consultations with affected tribal nations to ensure that tribal
rights, including concerns regarding cultural resources management, are
considered in clean-up decisions, in accordance
[[Page 72225]]
with DOE Order 144.1. DOE also coordinates and considers the views from
other Native American communities.
Additionally, DOE has other mechanisms to ensure robust, informed
stakeholder participation that includes frequent interactions with
citizens advisory boards, intergovernmental groups, federal and state
regulators, congressional staff, and others. These interactions promote
transparency and public involvement. DOE sites also use communications
tools that include, but are not limited to, townhall meetings, website
calendars, online collaboration and informational meetings, reading
rooms, and press releases.
The established process to apply the HLWI to a specific waste
stream is exemplified by the successful model used for SRS DWPF recycle
wastewater. This process provided opportunities for stakeholder
involvement and feedback throughout the project. Multiple entities such
as Energy Communities Alliance, SRS Community Reuse Organization, and
the National Governors Association have provided DOE with positive
feedback on its availability of public information and its willingness
to discuss and explain the HLWI publicly. Although not required by CEQ
and DOE NEPA regulations for EAs, the process included making the draft
EA available for public comment, holding informational meetings and
webinars on the draft and final EAs, preparing and making available
fact sheets, and including a Comment Response Document in the final EA.
The supporting technical documents, including sampling data and other
information demonstrating that the proposed waste disposal meets the
disposal facility waste acceptance criteria and performance objectives
for protection of human health and the environment, have been made
available to the public and included in public outreach briefings.
Signing Authority
This Department of Energy document was signed on December 15, 2021,
by William I. White, Senior Advisor for Environmental Management,
pursuant to delegated authority from the Secretary of Energy. That
document with the original signature and date is maintained by DOE. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned DOE Federal
Register Liaison Officer has been authorized to sign and submit the
document in electronic format for publication, as an official document
of the Department of Energy. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.
Signed at Washington, DC, on December 16, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-27555 Filed 12-20-21; 8:45 am]
BILLING CODE 6450-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.