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;A ha, Bs itUNITED STATES< 0AS NUCLEAR REGULATOPY CCMMISSION

o ~~~~~~~~~~WASHINGTON, D.C. 2555-0001June 2, 1997

Mr. Lawrence Weinstock, Acting DirectorOffice of Radiation and Indoor AirU.S. Environmental Protection AgencyWashington. DC 20460

Dear Mr. Weinstock:

I am responding to the November 15, 1996, Advance Notice of ProposedRulemaking, "Decision to Certify Whether the Waste Isolation Pilot PlantComplies with the 40 CFR Part 191 Disposal Regulations and the 40 CFR Part 194Compliance Criteria." Part 191 applies to sites not characterized underSection 113(a) of the Nuclear Waste Policy Act, [i.e., geologic disposal ofspent nuclear fuel. high-level and transuranic radioactive wastes at sitesother than Yucca Mountain (YM)]. Although the U.S. Environmental ProtectionAgency (EPA) is authorized to certify whether the Waste Isolation Pilot Plant(WIPP) complies with Part 191. under the WIPP Land Withdrawal Act, the U.S.Nuclear Regulatory Commission may eventually need to license other facilitiesthat must comply with 40 CFR Part 191, as well as YM. which may have to complywith requirements similar to those found in Part 191. We recognize that EPA'sdecision on the certification of the WIPP will reflect the record before EPAand note that the record will be influenced by the contents of 40 CFR Parts191 and 194: the Compliance Application Guidance: and the characteristics ofboth the WIPP site and of the waste to be disposed. These factors necessitatethat EPA decisions on specific elements of the U.S. Department of Energyapplication, and the decision on whether to certify WIPP, need to beconsidered as being applicable only to WIPP. Therefore, NRC considers thatdecisions made by EPA during this rulemaking, particularly decisionsconcerning how compliance with Part 191 standards will be demonstrated,establish no precedent of any kind for NRC licensing act-ns.

In a related matter, the staff considers it worthwhile to restate concernspreviously provided to EPA regarding aspects of the environmental standardswith which WIPP must comply. NRC commented extensively during the development (of these standards, including its April 12. 1993. comments on the proposedstandards published at 58 FR 7824. Specifically, NRC noted that the technicalcommunity has raised significant concerns regarding the scientific basis for.and the appropriateness of, EPA's 1985 standards. EPA chose, in its 1993rulemaking, not to accept comments -- including those from NRC -- on those,portions of the standards that were legislatively reinstated. The August 1995National Academy of Sciences (NAS) recommendations on the technical bases forYM standards reiterated some of these concerns. NRC remains concerned aboutthe technical basis of some requirements in Part 191. Enclosure 1 providesdetailed comments describing NRC's concerns with Part 191.

9706050310 70602PDR WASTEWK-11 PDR

NRC FILE CENRVTER COPY

L. Weinstotk

Further, as you know, EPA and NRC have been unable to agree on the need toinclude separate groundwater protection criteria in high-level waste (HLW)disposal standards. Separate groundwater protection requirements are acomponent of Part 191. NRC believes that individual protection criteria,which take into account all pathways, are sufficiently protective of thegroundwater pathway, and represent a more uniform and comprehensive approachto protecting public health and safety. Further, NRC continues to believethat the use of maximum contaminant levels (MCLs) for water in HLW disposal isfundamentally incompatible with the technical basis EPA employed to derivethese levels, and is a continuation of EPA's practice of applying the MCLsfound in 40 CFR Part 141 to other activities (e.g., HLW disposal) withoutappropriate justification, in particular:

(1) The current MCL values result in inconsistent levels of protection(e.g., less than 0.1 mrem/yr to over 30 mrem/yr) and do notinclude all radionuclides (e.g., uranium). EPA has not explainedwhy this disparity is acceptable when the MCLs are used toregulate remediation or disposal activities.

(2) The MCLs are a technology-based requirement for public watersystems that are to be applied after treatment and EPA is applyingthese MCLs to untreated groundwater;

(3) This use of MCLs is inconsistent with the concept. of"endangerment" as used in the Safe Drinking Water Act;

(4) In deriving the MCLs, EPA did not consider the potential impactsof applying the MCLs as relevant and appropriate criteria to otheractivities (e.g., site cleanups under Superfund); and

NRC has raised similar concerns with EPA's application of MCLs in draftstandards applicable to HLW disposal at YM.

The staff hids been working with EPA to examine implementation issuesassociated with the NAS recommendations and the draft environmental standardsfor YM, Nevada. I believe that these discussions have led to the EPA staff'sincreased awareness of the NRC concerns related to the implementation of EPAHLW-standards. I am providing a list of interactions between NRC and EPArelated to the current environmental standards for sites other than YM, thecompliance criteria for WIPP and the draft environmental standards for YM

L. Winstock - 4 - Jun 2 1997

in Enclosure 2 which includes these most recent interactions. To furtherthis understanding, I would be pleased to meet with you regarding the staff'spositions on Part 191 and groundwater protection for HLW facilities.

Sincerely,

(Original signed by)Carl J. Paperiello, DirectorOffice of Nuclear Material Safety

and Safeguards

Enclosures: 1. SECY-97-0732. List of NRC and EPA Interactions

cc: Docket No. A-93-02 (two copies)Air Docket, Room M-1500 (LE-131)U.S. Environmental Protection Agency401 M. Street, S.W.Washington, DC 20460

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L. Weinstock - 4 -

YM in Enclosure 2. which includes these most recent interactions. To furtherthis understanding. I would be pleased to meet with you regarding the staff'spositions on Part 191 and groundwater protection for HLW facilities.

Sincerely,

Enclh

cc:

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DOCUMENT NAME

* SEE PREVIOU'

Carl J. Paperiello, ectorOffice of Nuclear terial Safety

and Safeguard

osures: 1. SECY-97-0732. List of NRC and EPA Interac ons

Docket No. A-93-02 (two copies)Air Docket, Room M-1500 LE-131)U.S. Environmental Protection ency401 M. Street. S.W.Washington, DC 20460

EDO 9700204DWM rf-t/f P el NMSS r/f PAHL r)PUBLIC SS Dir. Off. r/f JThoma DMorri!JKotra cCartin JHolonich JHickez

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OFC DEDR / l EDO

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:0 ' >;

L. Weinstock - 4 -

YM in Enclosure 2. which includes these most recent interactions. To furtherthis understanding, I would be pleased to meet with you regarding the staff'spositions on Part 191 and groundwater protection for HLW facilities.

Sincerely,

Carl J. Paperiello, DirectorOffice of Nuclear Material Safety

and Safeguards

Enclosures: 1. SECY-97-0732. List of NRC and EPA Interactions

cc: Docket No. A-93-02 (two copies)Air Docket, Room M-1500 (LE-131)U.S. Environmental Protection Agency401 M. Street, S.W.Washington, DC 20460

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* SEE PREVIOUS CONCURRENCE

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;1.

POLICY ISSUE(NEGATIVE CONSENT)April 2, 1997 SECY-97-073

FOR:

FROM:

SUBJECT:

The Commissioners

L. Joseph CallanExecutive Director for Operations

COMMENTS ON THE U.S. ENVIRONMENTAL PROTECTION AGENCY'SADVANCE NOTICE OF PROPOSED RULEMAKING FOR THE DECISION ONWHETHER THE WASTE ISOLATION PILOT PLANT COMPLIES WITH THE40 CFR PART 191 DISPOSAL REGULATIONS AND THE 40 CFR PART 194COMPLIANCE CRITERIA

PURPOSE:

To advise the Commission of the staff's intention to transmit to theU.S. Environmental Protection Agency (EPA) the attached letter providing staffcomments on the Advance Notice of Proposed Rulemaking (ANPR) for the decisionon whether the Waste Isolation Pilot Plant (WIPP) complies with the40 CFR Part 191 disposal regulations and the 40 CFR Part 194 compliancecriteria.

BACKGROUND:

On October 30. 1992. Congress passed the WIPP Land Withdrawal Act (LWA)(Public Law 102-579). The WIPP LWA altered EPA's authority over thedevelopment of high-level waste (HLW) standards in several ways:

(1) EPA was given certain oversight responsibilities for WIPP;

(2) EPA's 1985 remanded radiation protection standard (Part 191) wasreinstated for disposal sites other than Yucca Mountain (YM). Nevada.except for the individual and groundwater protection criteria that werethe subject of the 1987 Federal Court Remand:

CONTACT: James R.415-6628

Firth. NMSS/DWM NOTE: TO BE MADE PUBLICLY AVAILABLEWHEN THE FINAL SRM IS MADE AVAILABLE

--I o?4 of 4-N,4&V #Enclosure 1

The Commissioners 2

(3) EPA was directed to promulgate final disposal regulations;

(4) EPA was directed to promulgate compliance criteria for the certificationof compliance with the final disposal regulations; and

(5) EPA was required to certify, by rule, whether the WIPP facility willcomply with the final disposal regulations.

On February 10. 1993. EPA published proposed amendments to the "EnvironmentalRadiation Protection Standards for the Management and Disposal of SpentNuclear Fuel. High-Level, and Transuranic Radioactive Wastes" (58 FR 7924).These standards apply to HLW and transuranic (TRU) radioactive waste disposalsites not characterized under Section 113(a) of the Nuclear Waste Policy Act(i.e.. sites other than YM). Staff comments on the amended standards wereprovided to the Commission in SECY-93-073. and formal comments were submittedto EPA on April 12. 1993 (Attachment 1). EPA published final amendments onDecember 20. 1993 (58 FR 66398).

On February 22, 1994. staff informally provided EPA with comments on theJanuary 28. 1994. working draft of the compliance criteria for WIPP.Subsequently (January 30. 1995). EPA formally published for comment itsproposed "Criteria for the Certification and Determination of the WasteIsolation Pilot Plant's Compliance with Environmental Standards for theManagement and Disposal of Spent Nuclear Fuel. High-Level, and TransuranicWastes" at 60 FR 5766. Draft staff comments on the compliance criteria weredeveloped and. with Commission approval, staff briefed EPA on the draftcomments on June 14. 1995. These comments were provided to the Commission inSECY-95-217. Subsequent to the development of the comments. but beforeCommission action on SECY-95-217. the National Academy of Sciences (NAS)published its findings on the technical bases for YM standards, in August1995. and a bill to amend the Nuclear Waste Policy Act of 1982 (HR 1020)received increased attention in the House of Representatives. Thesedevelopments caused significant uncertainty in many aspects of HLW disposal.Therefore, the staff believed it appropriate to withdraw its comments and. inOctober 1995. SECY-95-217 was returned to the staff. EPA published the finalcompliance criteria on February 9. 1996 (61 FR 5223).

DISCUSSION:

On November 15. 1996. EPA published for comment the ANPR, "Decision to CertifyWhether the Waste Isolation Pilot Plant Complies With the 40 CFR Part 191Disposal Regulations and the 40 CFR Part 194 Compliance Criteria" at61 FR 58499 (Attachment 2). The ANPR addresses the rulemaking process forcertifying whether WIPP complies with Parts 191 and 194. The comment periodclosed on March 17. 1997. After the receipt and evaluation of comments and anevaluation of the compliance certification application. EPA will propose forcomment its decision on whether to certify WIPP.

The staff is following EPA certification of WIPP to identify issues ofrelevance to'potential NRC activities. In the context of the WIPPcertification and because of continuing NRC concerns related to EPA standardsfor HLW disposal, the staff has reviewed the ANPR and believes that several

The Commissioners 3

comments should be transmitted to EPA (Attachment 3). The principal staffcomment is that EPA's decisions during the certification process do not set aprecedent for future NRC licensing activities. This Comment is necessary soas to retain NRC regulatory flexibility for potential licensing actionsrelated to HLW or TRU disposal (e.g., YM).

In addition, NRC may have to make determinations of compliance with Part 191for sites her than WIPP. Therefore, the staff believes that it is bothrelevant and important to reiterate earlier comments it made on Part 191 andrestate Commission policy on groundwater protection as expressed in theFebruary 7. 1997, letter from Chairman Jackson to Administrator Browner.Therefore, the staff proposes to comment to EPA that:

* The technical community has raised significant concerns regarding thescientific basis for, and the appropriateness of. the Part 191environmental standards. The NAS recommendations on the technical basesfor standards applicable to the proposed repository at YM reiteratedsome of these concerns. NRC remains concerned about the technical basisof some requirements in Part 191.

* NRC remains concerned about the EPA approach to implementing ground-water protection, including:

- The need for separate groundwater protection requirements inenvironmental standards for HLW disposal: and

- The use of maximum contaminant levels (MCLs) for HLW disposal. asfound in 40 CFR Part 141. is fundamentally incompatible with theirderivation and a continuation of EPA's practice of using MCLswithout appropriate justification.

RESOURCE IMPACTS:

There are no resource impacts associated with the proposed action.

INFORMATION TECHNOLOGY IMPACTS:

There are no information technology impacts associated with the proposedaction.

The Commissioners 4

COORDINATION:

The Office of the Generalobjection.

Counsel has reviewed this paper and has no legal

RECOMMENDATION:

The staff intends to sendten working days from thethe Commission.

the attached letter and comments to EPA withindate of this paper, unless instructed otherwise by

seph CallanExecutive Director

for Operations

Attachments: 1. NRC's letter dated 4/12/93on ANPR

2. FR notice dated 11/15/963. roposed ltr. to R. Trovato

from C.J. Paperiello

SECY NOTE: In the absence of instructions to the contrary, SECY will notifythe staff on Friday, April 18, 1997 that the Commission, by negative consent,assents to the action proposed in-this paper.

DISTRIBUTION:CommissionersOGCOCAAOIGOPAOCAACNWCIOCFOEDOSECY

APR 1 2 lqm,'Ms. Margo T. Oge, DctorOffice of Radiation and Indoor AirU.S. Environmental Protection AgencyWashington, D.C. 20460

Dear Ms. Oge:

Enclosed are U.S. Nuclear Regulatory Commission (NRC) comments on theFebruary 10, 1993, U.S. Environmental Protection Agency (EPA) proposal toadopt certain environmental standards applicable to transuranic (TRU) andhigh-level radioactive waste (HLW) disposal facilities other than YuccaMountain.

NRC notes, with regret, EPA's intent not to accept comments on those portionsof its standards that were legislatively reinstated. As EPA is well aware,significant concerns have been raised within the technical community regardingthe scientific basis for, and the appropriateness of, EPA's 1985 standards.Some of those concerns will be addressed ir the National Academy of Sciences'(NAS) study of appropriate standards for the candidate HLW repository site atYucca Mountain. When the NAS review has been completed, NRC believes it wouldbe appropriate for EPA to review its non-Yucca-Mountain standards to determinewhether additional amendments are warranted.

EPA solicits comments on the two specific questions shown below. NRC's viewson these questions follow.

(1) Are there reasons for adopting a different regulatory timeframe for the individual and ground-water protection requirementsthan the 10,000-year period of analysis associated with thecontainment requirements of 40 CFR 191.13?

In 1987, a Federal court found that EPA had provided an adequate explanationfor the 10,000-year time limit for the containment requirements of the 1985standards. At that time, EPA argued that a 10,000-year period was long enoughto distinguish repositories with relatively good capabilities to isolate wastefrom those with relatively poor capabilities, and yet short enough so thatmajor geologic changes were unlikely and repository performance mightreasonably be projected. In our view, the same reasoning would apply forprotection of individuals and of groundwater. While we see no obvious reasonwhy different regulatory periods should be adopted for different parts ofEPA's standards, the appropriateness of the 10,000-year period of analysiswill likely be a major focus of the HAS review. Thus, EPA adoption of thistime period in any generally applicable environmental standard may warrantreconsideration once the NAS review is completed.

(2) In subpart C, the Agency [EPA] proposes to prevent radioactivecontamination of underground sources of drinking water" beyond thelimits found in 40 CFR part 141--the National Primary Drinking WaterRegulations. The Agency is aware, however, that there -could be sometypes of ground water that warrant additional protection either because

Attachment 1

. .-_> 2

they are of unusually high vague or are more susceptible tocontamination. Should the Agency ad'pt nen-degradation requirements forespecially valuable ground water? If so, what types of ground waterwarrant this extra level of protection?

EPA's current proposal is, in effect, a non-degradation requirement. EPA'smaximum contaminant levels (MCLs) are so low that even very minor releasesfrom an otherwise very good repository could cause groundwater concentrationsto approach the MCLs. Any further restrictions on groundwater concentrationswould be unnecessary for protection of public health, would likely proveunachievable for some disposal facilities, and should not be adopted by EPA.As a related matter, the NRC is concerned about EPA's proposal to establish a'moving target" for allowable contaminant levels in groundwater. Under EPA'sproposal, design of a disposal facility would be very difficult since EPAcould revise the environmental standards for the facility at any time forreasons that have nothing to do with waste disposal. We strongly urge EPA toestablish a fixed environmental standard for contaminant levels in groundwaternear a disposal facility.

Specific NRC comments regarding EPA's propo3sed rule of February 10th areenclosed. Initial comments on EPA's draft "Background Information Document"and Economic Impact Analysis" are also enclosed. From the NRC staff'spreliminary review, however, it appears that the "Background InformationDocument" employs a highly-simplified conceptual model. The analyses based onthis model should not be viewed as a sound indication of whether EPA's releaselimits-are achievable at any real repository site. Additional comments onthese supporting documents may be submitted after the NRC staff has had anopportunity to thoroughly review them.

Sincerely, /

Robert M. Bernero, DirectorOffice of Nuclear Material Safety

and Safeguards

Enclosure:Comments on 58 FR 724,February 10, 1993

cc: (two copies)Docket No. R-89-01Air Docket, room M-1500 (LE-131)U.S. Environmental Protection Agency401 M Street, SWWashington, DC 20460

1

NRC COMMENTS ON EPA'S PROPOSEDINDIVIDUAL AND GROUNDWATER PROTECTION STANDARDS

GENERAL

1. The Environmental Protection Agency's (EPA's) description of the legalbasis for Nuclear Regulatory Commission (NRC) licensing authority (58 FR 7929)notes (NRC's) licensing role for Yucca Mountain under the Nuclear Waste PolicyAct (WPA), as amended. However, RC's authority s broader than this and hasa different generis. The Energy Reorganization Act of 1974 (P.L. 93-438),which established NRC, is the fundamental authority for NRC licensing offacilities for storage (including disposal) of both defense- and commerciallygenerated high-level wastes (HLW). Thus, NRC would have licensing authorityfor any repository for commercially generated HLW, including Yucca Mountain,that might be developed. In addition, NRC would have licensing authority forany defense-only HLW facility that might be pursued separate from theprovisions of NWPA. Finally, the Low-Level Radioactive Waste PolicyAmendments Act of 1985 (P.L.99-240) authorized NRC licensing of disposalfacilities for commercially-generated greater-than-Class C wastes, includingany such wastes containing transuranic radionuclides. Thus, there exists asignificant potential for NRC implementation of these proposed EPA standards,even though they do not apply to Yucca Mountain.

2. EPA proposes to define radioactive material' as ...matter composed ofor containing radionuclides, with radiological half-lives greater than 20years, subject to the Atomic Energy Act of 1954, as amended." This proposeddefinition is contrary to common usage, since most people refer to allradioactive material as "radioactive material." More importantly, thequalifying terms seem to serve no purpose. EPA proposes to use "radioactivematerial" to define environmental standards for limiting individual doses andgroundwater contamination. EPA's proposed criteria would apply to disposalsystems fr waste and any associated radioact.ve material." However, thespecific language proposed by EPA (sections 191.15 and 191.24) seems to referto the impacts of all radionuclides, including those with short half-lives andthose not subject to the Atomic Energy Act. NRC recommends that EPA deletethis term altogether as it will only add confusion. If EPA is concerned aboutGreater-than-Class-C waste disposal then the standards should be specific toGreater-than Class-C waste, and not try to encompass a wide range of materialsor waste.

3. Significant concerns have been raised within the technical communityregarding the scientific basis for, and the appropriateness of, EPA's 1985standards. Some of those concerns will be addressed in the National Academyof Sciences' (NAS) study of appropriate standards for the candidate HLWrepository site at Yucca Mountain. When the AS review has been completed,NRC-believes it would be appropriate for EPA t review its non-Yucca-Mountainstandards to determine whether additional amendments would be appropriate.

* X

2

10.000-Year Time Limit

4. EPA proposes to adopt a 10,000-year time period for application of theindividual and groundwater Drotection standards, and solicits comment onwhether there are reasons for adopting a different time period. In 1987, aFederal court found that EPA had provided an adequate explanation fo, Cfe10,000-year time limit for the containment requirements of the 1985 standard;.At that time, EPA argued that a 10,000-year period was long enough todistinguish repositories with relatively good capabilities to isolate wastefrom those with relatively poor capabilities, and yet short enough so thatmajor geologic changes were unlikely and repository performance mightreasonably be projected. In our view, the same reasoning would apply forprotection of individuals and of groundwater, and there would be no obviousreason why different regulatory periods should be adopted for different partof EPA's standards.

While we see no obvious reason why different regulatory periods should beadopted for different parts of EPA's standards, the appropriateness of the10,000-year period of a..alysis will likely be a major focus of the NAS reviewThus, EPA adoption of this time period in any generally applicableenvironmental standard may warrant reconsideration once the NAS review iscompleted.

Individual Dose Limits

5. In 1985, EPA established individual protection requirements of0.25 mSv/yr (25 mrem/yr) for the whole body or 0.75 mSv/yr (75 mrem/yr) forother organs. At that time, EPA did not provide a convincing basis of supportfor those dose -4ts. In 1985, EPA equated its dose limits to a lifetimerisk of SE-4. however, EPA did not argue that 5E-4 was the maximum level ofrisk that could be considered acceptable, nor did EPA demonstrate that itsdose limits were reasonably achievable. In addition, EPA never proposed itsindividual protection requirements for public comment. (EPA's 1982 proposedstandards solicited comment on whether individual doses should be regulated,but did not propose specific dose limits.) Because of the sketchy history ofthe dose limits in EPA's 1985 standards, it is inappropriate for EPA now todefend its current proposal on the basis of cunsistencyl with those doselimits. Instead, EPA should defend the current proposal on its own merits.Specifically, EPA should identify the maximum individual dose rate that EPAwould consider acceptable for future exposures of individuals (e.g., thatsuggested in the following comment).

6. The International Commission on Radiological Protection (ICRP) hasrecommended radiation protection standards for radioactive waste disposal inits Publication No. 46. The ICRP recommends that no individual in the futureshould be exposed to more than 1 mSv/yr (100 mrem/yr) attributable to non-medical man-made radiation sources (or an equivalent level of risk ifexposures are unlikely), and that each source of potential exposure should beallocated a portion of the overall limit. (The basis for the CRPrecommendation is comparison with risks now accepted by society.) Thefundamental idea is to restrict each potential source of long-term exposure(e.g., a HLW repository) so that the total dose rate from all sources is

3

unlikely to exceed the recommended limits of the ICRP. EPA should do twothings: a) endorse the overall ose limit of 1 mSv/yr (100 mrem/yr)recommended by the ICRP, or explain why EPA prefers a different limit, andb) explain how EPA's proposed HLIW and TRU standards are derived from anoverall dose (or risk) limit for all sources of future uman radiationexposures.

7. EPA's proposed individual protection standards would restrict potentialdoses to any member of the public." This seems to mean the most highlyexposed member of the public. In contrast, the IRP has recommended that doselimits should be applied to the average dose within a "critical group" of themost highly exposed members of the public. The federal Register notice doesnot provide the reasons for EPA's rejection of the ICRP's critical groupconcept. EPA should clearly describe its reasons for restricting doses to themaximally-exposed individual rather than the average dose within a criticalgroup.

8. EPA states (page 7929) that use o groundwater within the controlledarea need not be considered when evaluating compliance with the individualprotection requirements. EPA reasons that the geologic media within thecontrolled area are an integral part of the disposal system. NRC agrees withthis.view, but is concerned that the wording of EPA's standards might permitother interpretations. Specifically, if withdrawal of groundwater from withinthe controlled area does not disrupt the disposal system, such withdrawalmight be considered to be part of undisturbed performance." To ensure thatthere is no ambiguity about this point, the existing (1985) definition of theterm undisturbed performance should be altered to read:

Undisturbed performance" means the predicted behavior of a disposalsystem, including consideration of the uertainties in predictedbehavior, assuming no withdrawal of roundwater from within thecontrolled area. and assuming 4 the disposal system is not disrupted byhuman intrusion or the occurrence of ul4kely natural events.

Note also that the word unlikely' should be deleted from this defition.EPA's existing definition of undisturbed performance" is confusing because itincludes disturbed performance to the extent that natural disruptions arelikely to occur. Alternatively, if EPA wishes to apply the individualprotection requirements to performance following likely disruptions, the term'undisturbed performance" could be replaced with anticipated performance orsome similar term.

9. In sections 191.15(c) and 191.24(b), it would be helpful to substitute"performance assessment" for "compliance assessment." The term "complianceassessment* is sometimes used to refer to a licensing agency's determinationthat an applicant's performance assessment is an adequate demonstration ofcompliance with a regulatory requirement.

Groundwater Protection Standards

10. EPA proposes to require a disposal facility to comply with theprovisions of whatever EPA drinking water standards are in effect at the time

4

when compliance is demonstrated. This constitutes a moving target" that willmake it difficult to design a disposal facility. It is also impossible toevaluate the stringency of the proposed standards or the technical or economicpracticality of achieving compliance with them. Instead of a 'moving target,"EPA should determine the level of groundwater protection appropriate for HLWand TRU disposal and should codify that level of protection in thesestandards.

11. EPA proposes to require that groundwater adjacent to a TRU or HLWdisposal facility be protected to the mximum contaminant levels (MCLs)developed by EPA under the Safe Drinking Water Act (SDWA). In our October 16,1992, comments on EPA's proposed drinking water standards, we stated:

EPA should evaluate the indirect impact of the proposed MCLs. There areother activities, such as environmental restoration, to which the MCLswill be applied as default values for groundwater and surface waterprotection. EPA has consistently adopted MCLs as groundwater protectioncriteria for high-level waste management and uranium mill tailings (anddraft standards for low-level waste disposal) because the MCLs areestablished to protect humans in accordance with the Safe Drinking WaterAct. Minimal justification has been provided by EPA in these individualrulemakings to adopt the MCLs as relevant criteria other than the factthat they have already been established as MCLs in 40 CFR Part 141.These criteria include the MCLs for radium, gross alpha, and uranium, aswell as the 4 mrem/year dose standard for beta and gamma emitters.Although the S/rem impact for the proposed standards is acceptable toEPA for municipal treatment, since EPA has chosen to rely on thedrinking water standards as sufficient justification for adopting theseMCLs in other contexts, EPA is obligated to consider the potentialimpacts associated with establishing or changing the MCLs in 40 CFR Part141. In addition, this analysis should consider potential impacts onother activities to which the MCLs will likely be applied as relevantand appropriate criteria (e.g., for site cleanups under CERCLA), in theabsence of alternative health-based criteria.

EPA's current proposal is a continuation of EPA's practice of using the MCLswithout appropriate justification.

12. EPA proposes to require that radionuclide levels in offsite undergroundsources of drinking water not exceed such MCLs as EPA might determine to beappropriate. EPA's past derivation of MCLs has been based on consideration ofthe technical capabilities of water treatment plants and of the cost-effectiveness of various types of water treatment. Specifically, EPA's MCLshave been derived to apply to public water supplies after treatment in a watertreatment plant. EPA now proposes to apply the same MCL levels to groundwatersupplies before treatment. In other words, EPA proposes to obviate use of the.very water treatment technologies EPA has previously found to be technicallypractical and cost-effective. Not only is this use of the MCL levelsincompatible with their derivation, it is inconsistent with the concept of3endangerment," as used in the SDWA. EPA notes (page 7930) that:

"Endangerment' occurs if an underground injection may result in the

5

presence [in] underground'water which supplies or can reasonably beexpected to supply any public water system of any contaminant, and ifthe presence of such contaminant may result in such system's notcomplying with any national primary drinking water regulation or mayotherwise adversely affect the health of persons.'

Setting aside the question of whether repository disposal constitutesunderground injection, endangerment" would seem to occur only if contaminantlevels in groundwater are high enough so that treatment by a public watersystem cannot reduce those levels to MCLs.

The NRC does not object to use of MCLs as general goals for groundwaterprotection. However, EPA should further consider the potential costsassociated with a rigid regulatory requirement for prevention of contaminationabove MCLs. In some cases, the technical or economic practicality of watertreatment may be much more favorable than the practicality of prevention ofgroundwater contamination that only oderately exceeds EPA's MCLs. As EPAnotes (page 7933), the technology for .(eating groundwater with high levels of'total dissolved solids" (i.e., salts) is advancing. The same technologywould presumably be effective in removing dissolved radionuclides fromgroundwater. EPA should not require the expenditure of billions of dollars toprevent potential contamination of groundwater that would require treatmentprior to use anyway. Instead, EPA's standards should permit a decision tospend much smaller sums for water treatment in the event that suchcontamination should occur.

13. EPA's proposed rule implies that the MCLs have already been implementedin standards to protect groundwater for uranium mill tailings sites andhazardous waste disposal facilities. However, there are flexibilitiesassociated with MCL compliance in other programs that EPA has not provided forin the TRU and HLW standards. Specifically, in the hazardous waste anduranium mill tailings disposal program, EPA has provided flexibility inmeeting MCLs through the use of alternate concentration limits (ACLs) (cf. 40CFR 264.94). ACLs may be applied in situations when compliance with MCLs isnot feasible, proviled that the environment is sufficiently protected ndother conditions are met. Additionally, in accordance with SDWA sections1415(a)(!)(A) and 1416(a), respectively, EPA or a State may grant a varianceor issue an exemption to a public water system from any MCL requirement. EPAconcluded in each of these programs thoat such flexibility was necessary andappropriate. To the extent allowed by the legal authority under which EPA isproposing these standards, EPA should provide comparable flexibility inimplementing drinking water MCLs in the TRU and HLW standards or justify whyit is not necessary for TRU and HLW disposal facilities.

14. In the Supplementary Information" (page 7932), EPA references itsgroundwater protection strategy and indicates that the strategy recommends useof MCLs as "reference points' for protection of water resources that arepotential sources of drinking water. EPA should explain why t has proposedto apply MCLs in these standards as absolute limits rather than more flexiblereference points.

15. EPA's proposed groundwater protection standards restrict the combined

-A

5

concentrations of natural and man-made radionuclides from all sources. Thus,a site with natural radionuclide concentrations exceeding EPA's MCL levelscould not be used for waste disposal (unless groundwater cleanup werepractical). This is a substantial departure from EPA's 1985 standards, whichrestricted the incremental increase i, groundwater concentrations caused by adisposal facility. Arguably, rather than risking contamination of pristineaquifers, EPA should encourage siting waste disposal facilities at locationswhere groundwater is already unsuitable for consumption without treatment.EPA provides no explanation for the change from the 1985 standards, nor doesEPA even identify the change in the Federal Register notice. EPA should allowan incremental increase, above natural levels, unless EPA can demonstrate thatdoing so would unacceptably endanger the health of the public.

16. The proposed standards require (section 191.23(b)) that the analyticalmethods in 40 CFR Part 141 be used ...to determine the levels for comparisonwith the limits in 40 CFR part 141." This requirement is inappropriate, sincecompliance with Subpart C (the groundwater protection criteria) must bedemonstrated before a facility is placed in operation. A determination ofcompliance with Subpart C is to be made before a disposal facility isoperated, not after wastes have been emplaced. To the extent that Part 191 isbeing proposed under Atomic Energy Act authority, specification of use ofparticular analytical methods is also inappropriate since such specificationdoes not constitute a "generally applicable environmental standard."

Appendix B

17. Appendix B appears to be based on ICRP Publication 60. This isinconsistent with current Federal guidance and the consensus developed in aFederal Interagency Working Group. The consensus of that group (chaired byEPA) is that the incremental benefit associated with adoption of ICRP 60methodology is not sufficient to justify the associated cost and regulatoryburden. Thus, PA's proposed Appendix B should be rewritten, based on ICRP-26methodology, to be consistent with current Federal guidance and the practicesof other Federal gencies.

18. The symbols used in the equations of the proposed Appendix B("Calculation of Annual Committed Effective Dose") cause confusion. In thesecond equation, HT is used to denote the equivalent dose in tissue T.Then, in the third equation, the same symbol is used for both the integrated50-year equivalent dose and the equivalent dose rate. The right-hand side ofthe third equation should use a symbol that clearly indicates the dose rate(i.e., the derivative of HT with respect to time).

Background Information Document (BID)

19. EPA's proposed standards would restrict radionuclide concentrations ingroundwater and potential doses to individuals outside a controlled area"that is allowed to extend up to five kilometers from a disposal facility. Theanalyses of EPA's draft BID evaluate potential concentrations and doses at a2-kilometer distance, rather than the full 5-kilometer distance allowed byEPA's standards. In EPA's analyses, an individual is assumed to withdrawgroundwater for drinking at a distance of 2-kilometers from a deep geologic

7

repository containing transuranic wastes. In general, EPA's analyses showthat no impacts occur, even at the 2-kilometer location, until about 50,000years after disposal. Then, doses to the individual are estimated to rangefrom several tens of millirem/year to several rem/year, and to remainrelatively constant until the end of EPA's analyses at 100,000 years afterdisposal. Had EPA estimated impacts at the 5-kilometer boundary of thecontrolled area, rather than at a 2-kilometer distance, few releases wouldhave occurred within 100,000 years and estimated doses would have been reducedby radioactive decay and dispersion during transport through the controlledarea. Thus, it would be inappropriate to interpret the results of EPA'sanalyses as a demonstration that a 10,000-year regulatory period is inadequate-and as a rationale for extending the regulatory period for longer times.

20. EPA uses essentially the same conceptual model for all four hypotheticalrepositories considered in its BID. Using the NEFTRAN-S code, EPA uses asingle pipe" to simulate transport of radionuclides from a repository to anoverlying or underlying aquifer, and then uses a second pipe" to simulatetransport to a groundwater well located 2 Kilometers away. The coarseness ofthis model precludes simulation of fractures, failures of borehole or shaftseals, or other inhomogeneities in the geologic media. NEFTRAN-S may not beadequate for such purposes anyway, and a computer program implementingmathematical models of the appropriate processes would have to be used. Thus,EPA is unable to determine whether relatively rapid transport of small amountsof waste might occur, leading to potential violations of the proposedindividual and groundwater protection standards.

21. Some of EPA's simplifying assumptions may be causing EPA to beunderestimating doses. For example, Table 7.5-15 postulates an aquiferthickness of 2400 meters at a tuff site. Even if the physical thickness of anaquifer were this great, the effective thickness within which radionuclideswould be mixed and transported would be much less. Thus, EPA may haveoverestimated dilution of releases (and underestimated doses) by 1 to 2 ordersof magnitude.

22. EPA uses retardation factors originally developed for the NationalAcademy of Sciences' 1983 Waste Isolation Systems Panel's HLW report. Thewaste form for EPA's current analyses is transuranic waste, which includesorganic trash, chelating agents, etc. EPA should explain why it thinks theretardation factors developed for HLW would be appropriate for transuranicwastes with much different chemical characteristics.

23. The reinstated criteria of 40 CFR Part 191 define undisturbedperformance as ...the predicted behavior...if the disposal system is notdisrupted by human intrusion or the occurrence of unlikely natural events.'As noted in comment 8, use of the term undisturbed performance is confusingbecause it includes disturbed performance to the extent that naturaldisruptions are likely to occur. Comment 8 recommends that EPA drop the word*unlikely* from the definition of undisturbed performance. However, if EPAretains the current wording, EPA should demonstrate that the limits of itsstandards are achievable for likely disturbances. EPA's draft BID makes noattempt to even identify likely disturbances, let alone estimate their effectson repository performance. If EPA is to provide a convincing demonstration

8

that its proposed standards are technically achievable, EPA needs to identifylikely disruptions and to evaluate the effects of those disruptions on theperformance of disposal facilities.

24. Section 7.6.2 of EPA's BID seems to endorse use of elicited expertjudgment in a performance assessment for demonstration of compliance with theproposed standards. While we recognize that use of expert Judgment will be anecessary part of any demonstration of compliance with these standards, NRCstaff believe that it is inappropriate to substitute judgment for data unlessdata are not reasonably obtainable.

Reliance on expert judgment is a matter of implementation of the standards.It would be more appropriate for EPA to offer its views regarding reliance onelicited judgments in conjunction with development of EPA's compliancecriteria for WIPP rather than as part of these generally applicableenvironmental standards.

25. As noted in our cover letter, additional comments may be provided to EPAafter the NRC staff has had an opportunity to thoroughly review the BID.

I

~~~~~~~~~~- ';- - - -c--., rs fj ' ; - ; ' -v . r

Federa Register t Vl 6t, No Frfda*,.RO iber is1 9 1:, 1996 1 P~oid Rules 58499

D Gftoi~ 10,1s ,ue ,-=c , ' be published In the Fed Ristir t 'the p Css nucleer fission, chiefly-David A. -l** - l : .P j sr: provide public hearinglnkrmt - isotopes Of plutonium.Acft°ghg.onaIAd ntb sftro ADESSM Comments tid requests W: The EPA Is uird by the WIPPIFR DOt W-28873 Vi 11-4-46 6.45s.; public hearins should be submittedn .and Withdrawal Act to evaluate and.uu~a~en oco. es o-a a duplicate. to .t ockeNo. A-3-02. A ir *t whether the WIPP will comply

IFRtL- :' ..-. . - M Stet SW, Wah W uhm D.C egulations." These reg1a limit- -- * - - - {v- ;:v~i- 204t e :add ldOckS -- rel f radioactive materials om

FUN 20000S Information In the 8uPPLEaUARY dipa systems for radioactive waste,40 Part - -s *. . UnN . - ,.mnd rquire Implation of measures

4O CFR ParI9 1 §t.? ' rn-- ). FORt Fuwjgs sioAna orA T: -L tO provide connidence for complianle -1rDecision to Cert whelw Ve Waste ' Mazy Kruger or Bety Fodish: ~ Wt h aitoirlaelmt

W I S p h o n e r - iidtshhffowdbiC~~~~~~~~reglatoslimit; -IolatOim Pilot Plant Comples wnh u telephone nub.002) Z53-310.' Adtonly1hergltin-ii

40 CFR Part 191 Disposal Regulations address: Radiation Protection Divislon. radiation doses to members of theard ON 40 CFR Part 19 -mplance Mail Code 6802, U. El public, and protect ground water

Protectian Afency. Wushizifton, PC'? resouzrces by establishing maximrumt* > 20-' -con entrationsr radionuclides In

GENY: Envirometal n Prtec"lo'n LEMjpJiWOtTiI.-l Wa ground water..A4EY (EPA). :. .;: *-,' -;:: a. Isolation Pilot Plant (WWP) w-: The WIP land Withdawal Ataso-.W

ACrI Advance lotice of Proposed .; 4tithorId In fl. fndAetO ZiS f fEPA to establish criteriaRulemaking (ANJ4PR).. . . .: the Department of EnergOID -' 'Impment the disposal reulations-

. National Sec tyandMfts - at the WIP. EPAL published finalRUMA The EnvfronmentilProtection 'Applications of uclear Ener - - : criteria (40 part 194) on February-Agency (EPA) Intends to certify whether Authorization Act of 1980 aPb L 9, 9-1996. See 61 R 5224. Thus, EPA willor rot the Waste Isolation Pilot Plant 164.93 Stat. 29,1265). ror . , - implement its environmental radiation(WVP) will comply with 1PA K express purpose of rovi e o Standards. 40 CFR part 1,environmental radit1otn aa n... and development fcilytpyte 6y pplying the WIPP m p p =

sdds for ie 'of radioectlve the safe disposal of rao w critpr. 40 CFR part 194. to the-.wae. The WIP Is belng constuctedby resulting frm the defense activities d posed dsp of tcsraEthe Department of Es u(DO .. program of the United States"The- radioactive waste at the WIP. For moreCarlsbad. NewMic as a potital W P lbein ostructed by the DOE Infrmatin about 40 CFR part 191. referrepository for the dsaf d -s l . * ar CArsbad NewMw s & * to Federa Register documentstransuranic di ve w Pu potential repository for the safdIFPoSal plished In 0U85 (50 FR 38066-3808.to the 1992 WIP Land Withdrawal of asurnc radioactie .was..:.... .;- Sep ; .19.195) and 1993 (58 FR 6639 -;as amended, EPA must certify that the Th 1992 WIPP land Wtdr . a AO 68416. Dec 20,1993). For mre-WHIP will comply with EPA s standarda , (Pub. -ctlvp, information about 40 CFR part 194, referfr dires ad stb er b ag _le d In the WIP tt Li Fe-:d Register documents

must be mraeitbeive wastes enerates published in 1W6 (Sl FR 5224-245.may commence dpal of radiosqlve. by defeti-rlated activities Pb. 0. 19) and 15 (60 FR 576.-waste at the WIPP. 2 ,, , ,ai:' T, Lgsuragses defied w 5701,pJn.3,1995).

EPA will determine whether the WIP cntaining more thn 100 nanoAe The DO may nt begin to empac'will comply wth EPs standards for tlin radioactive t ttsuranic: waste underground fordkposad based an teapp-"caton. - : iiv eu disposal at the WIP until EPA certiflessubmitted by the Secr y o.Energ. twenty ser nd tomic that theWI will comply with theDOE's compliance wtlficatla -- e * greater thn 9 e Act .rhe ? '< disposal ations and all otherapplicatiom was received by tb. EPA oa: stipulates that d i a n . re emes of section 7(b) of the WIPPOctober 29, 19, aid copJnybc t be tnuianc wastff h Ld d Act. as amended, havefbund in EPEA's pblAc (a .; alommae the defin o£1i ;lel: .- been satilsfled. Asrequired byselon Addit Doct Inforatn at t r. . ndioactiwaste, hac bei spk ially 8(d) of the amended WIP Lndend of this otlcv) Ite Adfisra :apted f tit withik & -- 'Withdrawal Act, EFWa decision anwill make a determination a toV*,:. - curren of te , o whether eWP complies with thecompleteness of ;; aplcto In the .- beapproved f aute uuehbd disoe r ltons will be . :--. -near future and wifllnotify th4 *' of ipdSal by the NucI64 gagalataq-1 - o llshed by rulmalin -'Secretary, inwriting, when the Agevcy Commission. The ur-asnl t with the notice-and-deems the apphcation "cojmplete." EPA-' radioactive waste pto 086os mment requirments of thewillevaluatethe" ampbfte. - In the 'v conds of 'mrils suc Administrative Pricedure Act (5 U.S.Capplication In determining ethr t ap, p , t ,re 553) in ddio to thes genlsrdWIPP will comply wite iation a ' requiresnets. EPA devloped specificprotectio UtniaOS for de asfZor aPuted during atoi ' provi f pblic nvolvenedt In the-Agp ubl anii est cm all i z WIcomtaspecs pfthDC thtppli;t rulma g. e icpeilpation.DATE Cmments in re i to Idtia of*atifeh imts&~ lts ; Qia fo fi 14.119462. - - --document and on DO Es wp - ' - ;;194.68. an 194.? of the WIPYapplication must be nted Mrby , p-.mplim Criteria idetime 17. 1997.PubI c heainpiMbe hl&hp = _ peioirds allowNew Mcxci duing the pblrC=MMist p erinsjndperiod. A separa- -VW%

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5500 Federal RBu oL 61. No. 22.1 rPiday, November 15; 16 I Ru

informatcn spa c ly relted to EPA's -Now Msjxlco IoJed In AHuqu. Or Postmarked an or before this date inifftli o , e xco. (oen omc amto . the preparation of the final rule.Wlth today's docsimt. the Agency - eO p.m. 49A Monday broughThursdays ADREosm Commn: You may hand

,nnunc its intention to comma Sa,. t:O S:OO pzL on rdaY, 9. -d eliver your entc to the Bureau of-public rulemaking to ceflly whetier th. Lm. to 5.00 p.m an Saturday. end - Land Management. Adminisittive'vWI - am w t h) 0;opll .dy);.' EPAX *Record, Room 401, 10 L SL. NW..

t is t-posd j uaonOn Octe-Z8, ; tin the Foguln Lrof the Wahinton. DC or mail comments tort1996, DOE submdcation of c antoA A lee of San in Sent -Fe. New -the Bureau of Land Mannement.

. C n Ofcmpiance tO EPA.A . Mdco, located at 1500 St. ichassels Administrative Record, Room 40ILS.copy of the applicatIons avilable fr . ive (openf rm0 anaL toO0 12849 C StreetNW 'isngton, DCinspectionl PA publicdockeWi 80 .. t IdRY pth.w FIy.s0.0 2040 e Yctoial via theanmnai od,, al bn ln V's P - midnight on May thtugh Tusa 20240. YOU m; t Commentsdescrflbd beow. 7e Agnc s' 8.0 tjL tO 5:oo pxL.on Frida. . *IctiCaIY via the Internet to:comments on draft versins of the. .m to i:00 pim on Saturday. p p WOCommentwoblmOv. Please.. phliance ortificatio n app on S. o undayk md 4) EPAs. Include "ttn: ACW" mndyou name

Avaso vilable in pulic do~eta The doct E the ou do.EPA will evaluate ~ ~ ~ ~ ~91heMmi~dpe bry-of and addreui In you messege. IyuoPA w l anluab n P - Clad. New Mico. located at 101 S not receive a tn m the

.-application In d 8 t e _ Heleio(open to iy00 ystem hat have received vour.WWP complies with t dla :, an th Thursday, Internet messae tact us d rdly.protection standards for pisp altin anadi ayR P e iuR O A= -additon. EPA will consder - - ma0 Poniday an L Fbfc r_ W d

c and other iatra. ot annd lO p.; .5 .i- * p. ,. eulatory We Attemenb., ommndent an other nforee hationrlevan &zndayiJ Mprovsdin0-0 '; %' Brpme, Land A= s-ant. at -tor whs con iplence EPA -imibe lPe 0ay be 11ur*sd 'or y W ,n.

- .. EPA e of theW '5ppos eap .c'tion.gUPPVjE07AY wEFORMA110:

~PA wlinmake adeter iaiithe .IhdqaSjfnI4O'M~ad~ '-LPabI1cGm~nZPZoosd~u3t.near future as to the completenes f-the Eovironze±te pr6otn. a" I .riad Dimu-slM of -

appicatlon. as a prlmnr tep.in Its Adhsa~ctmfn . acdnliat 2. morewexensive technical revIew Ofthe Nula a Puoim.RdainLPbIC;etPo~dr

aplicatlo nTe EPA may re-e st; .- 1ids . -.I I- -

'on]Information as necessary 'iuancUznium Westttjedtmt~ Nittn Comments,-rn DOE to nsue thec ta 4R

' the cor' ' cation. A -o *; -' * s -,. . - * Writtn mens nB v te* tovlde -t~vwt written ,.,:ridi ye.. :ue dsould be eof Its cnpreteness dl , IL 1. .. -. - .X Nn. . O1 CO naed ito

-. co.Uespondence between EPA nd D : - , . ,-- - ' O ,, u reodd ae.rInaudl te ompletema f te---- [1R Doc,9452 FOWe 111-08 IL.45 mlcomplin aplicadan will bepcd i ca m- l ' Wer p ossibl - - ,; -

tibiepublic -ockets. * . .- t spedifc section orEPA will make a final dwrIaon jparagoftaho hiclh the

. n ff 4dltwh ethrthe W b ui es INEPARs i OF T. may.~ t tIedsposal re tlosdhr .. .hr . .-. TE .. I.;nd i; t{e;0maim bnw-d regi8 ;atmy oZ*&L PIo< *- forl; t.e final rule

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- -**~*.*,b-...*'*.*** . -- *** * .q

UNITED STATESNUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 2033-=1

DRAFT

Ms. Ramona Trovato, DirectorOffice of Radiatlon and Tndoor AirU.S. Environmental Protection AgencyWashington, DC 20460

Dear Ms. Trovato:

I am responding to the November 15, 1996, Advance Notice of Pro osedRulemaking, "Decision to Certify Whether the Waste Isolation Pilot PlantComplies with the 40 CFR Part 191 Disposal Regulations and the40 CFR Part 194 Compliance Criteria." Part 191 applies to sites notcharacterized under Section 113(a) of the Nuclear Waste Policy Act, [i.e..geologic disposal of spent nuclear fuel, high-level and transuranicradioactive wastes at sites other than (YuIcca Mountain YM)]. Although theU.S. Environmental Protection Agency (EPA) il authorized to certify whetherthe Waste Isolation Pilot Plant (WIPP) complies with Part 191. under the WIPPLand Withdrawal Act, the U.S. Nuclear Regulatory Commission may eventuallyneed to license other facilities that must comply with 40 CFR Part 191. aswell as YM. which may have to comply with requirements similar to those foundin Part 191. We recognize that EPA's decision on the certification of theWIPP will reflect the record before EPA and note that the record will beinfluenced by the contents of 40 CFR Parts 191 and 197: the ComplianceApplication Guidance: and the characteristics of both the WIPP site and thewaste to be disposed of. These factors necessitate that EPA decisions onspecific elements of the U.S. Department of Energy application and thedecision on whether to certify WIPP need to be cc-.sidered as being applicableonly to WIPP. Therefore, NRC considers that decisions made by EPA during thisrulemaking establish no precedent for NRC licensing actions.

In a related matter, the staff considers it worthwhile to restate concernspreviously provided to EPA regarding aspects of the environmental st'ndardswith which WIPP must comply. NRC commented extensively during the developmentof these standards. including its April 12, 1993. comments on the roposedstandards ublished at 58 FR 7824. Specifically. NRC noted that te technicalcommunity has raised significant concerns regarding the scientific basis for.and the appropriateness of. EPA's 1985 standards. EPA chose. in its 1993rulemaking. not to accept comments -- including those from NRC -- on thoseportions of the standards that were legislatively reinstated. The August 1995National Academy of Sciences (NAS) recommendations on the technical bases forYM standards reiterated some of these concerns. NRC remains concerned aboutthe technical basis of some requirements in Part 191.

Attachment 3

R. Trovato 2

In addition; EPA and NRC have consistently disagreed with respect to the needto include separate groundwater protection criteria in high-level waste (HLW)disposal standards. Separate groundwater protection requirements are acomponent of Part 191. NRC believes that individual protection criteria.which take into account all pathways. are sufficiently protective of thegroundwater pathway, and represent a more uniform and comprehensive approachto protecting public health and safety. Further NRC continues to believethat the use of max111,um contaminant levels (MCLs) in HLW disposal isfundamentally incompatible with the technical basis EPA employed to derivethese levels and is a continuation of EPA's practice of applying the MCLsfound in 40 CFR Part 141 to other activities (e.g.. HLW disposal) withoutappropriate justification. NRC has raised similar concerns with EPA'sapplication of MCLs in draft standards applicable to HLW disposal at YM.

The staff has been working with EPA to examine implementation issuesassociated with the NAS recommendations and the draft environmental standardsfor YM. Nevada. I believe that these discussions have been fruitful, leadingto the EPA staff's ncreased awareness of the NRC concernr related to theimplementation of EPA HLW standards. To further this understanding. I wouldbe pleased to meet with you regarding the staff's positions on Part 191 andgroundwater protection for HLW facilities.

Sincerely.

Carl J. Paperiello. DirectorOffice of Nuclear Material Safety

and Safeguards

cc: Docket No. A-93-02 (two copies)Air Docket. Room M-1500 (LE-131)U.S. Environmental Protection Agency401 M Street, S.W.Washington. DC 4u460

Environmental Standards for the Disposal of Spent Nuclear Fuel, High-Leveland Transuranic Wastes: Events and Interactions

December 29, 1982

U.S. Environmental Protection Agency (EPA) publishes proposed rule (40CFR Part 191) in Federal Register (47 FR 58196). The proposed rule doesnot include individual or groundwater protection requirements for thedisposal of spent nuclear fuel, high-level or transuranic radioactivewaste.

July 19, 1985

EPA provides U.S. Nuclear Regulatory Commission with working draft #8.which includes individual and groundwater protection requirementsapplicable for 1,000 years. The release limits, first published in theproposed rule, apply for 10,000 years after disposal.

September 19, 1985

EPA publishes final rule (40 CFR Part 191) in the Federal Register (50FR 38066).

July 17. 1985

First Circuit court issues ruling: NRDC v. EPA. 824 F. 2nd 1258 (1stCir. 1987). The court remanded:

(1) The groundwater protection requirements (§191.16) for:

* Insufficient notice and comment

* Failure to either reconcile the high-level waste disposalstandards to Part C of the Safe Drinking Water Act or toadequately explain the divergence

(2) The individual protection requirements (§191.15) for:

* Inadequate explanation of the 1,000-year time frame requirements

(3) The rest of 40 CFR Part 191.

January 31, 1990

EPA releases working draft #2 for proposed rule (40 CFR Part 191).

August 27. 1990

NRC staff transmits comments on working draft #2.

Enclosure 2

b %

April 25. 1991

EPA releases working draft #3 for proposed rule (40 CFR Part 191).

July 12, 1991

NRC and EPA staff meet to discuss NRC staff comments on working draft#2.

July 18. 1991

EPA transmits questions related to NRC staff proposals on working draft#2.

September 24-26. 1991

Electric Power Research Institute sponsors a workshop on the technicalbasis for the EPA high-level radioactive waste disposal criteria (40 CFRPart 191).

October 23. 1991

NRC staff transmits comments related to working draft #3.

December 3. 1991

NRC staff transmits response to EPA questions on proposals related toEPA working draft #3.

December 5. 1991

NRC and EPA staff meet to discuss NRC staff comments on working draft#3.

January 7. 1992

NRC and EPA staff meet to discuss NRC staff comments on working draft#3.

February 4-6. 1992

Electric Power Research Institute sponsors a workshop on the technicalbasis for the EPA high-level radioactive waste disposal criteria (40 CFRPart 191).

February 19, 1992

NRC and EPA staff meet to discuss NRC staff comments on working draft#3.

- 2 -

March 13. 1992

NRC and EPA staff meet to discuss NRC staff concerns with potentialdifficulties in implementing the draft EPA standards.

March 27, 1992

NRC and EPA staff meet to discuss NRC staff concerns with potentialdifficulties in implementing the draft EPA standards.

July 1 1992

NRC staff transmits preliminary comments on draft reports of technicalanalyses performed for EPA by U.S. Department of Energy.

September 3 1992

NRC transmits staff comments on preliminary drafts of the BackgroundInformation Document and Regulatory Impact Analysis for amendments to 40CFR Part 191.

October 30, 1992

Congress enacts Waste Isolation Pilot Plant Land Withdrawal Act,reinstating 40 CFR Part 191 Subpart B (disposal standards) with theexception of those requirements specifically found problematic by theFirst Circuit court.

February 10, 1993

EPA publishes proposed amendments to 40 CFR Part 191 in Federal Register(58 FR 7924).

April 13. 1993

NRC transmits staff comments on proposed 40 CFR Part 191 amendments andBackground Information Document.

December 20, 1993

EPA publishes final amendments to 40 CFR Part 191 in Federal Register(58 FR 66398).

January 1994 (approximate)

EPA and NRC staff meet to discuss final amendments to 40 CFR Part 191.

January 28. 1994

EPA distributes draft compliance criteria for the Waste Isolation PilotPlant (WIPP)-- 40 CFR Part 194.

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February 22. 1994

NRC staff transmits informal staff comments on draft compliance criteriafor WIPP (40 CFR Part 194).

January 30. 1995

EPA publishes proposed WIPP compliance criteria in the Federal Register(60 FR 5766).

June 14. 1995

NRC and EPA staff meet to discuss draft NRC staff comments on proposedcompliance criteria for WIPP (40 CFR Part 194).

October 12. 1995

NRC and EPA staff meet to discuss the EPA response to the NationalAcademy of Sciences report Technical Bases for Yucca Mountain Standards.

December 6 1995

NRC and EPA staff meet to discuss the EPA rulemaking activities and theappropriate scope for the environmental standards and the implementingregulations for Yucca Mountain.

December 13, 1995

NRC and EPA staff meet to discuss preliminary insights provided by NRCtechnical analyses on implementation issues related to therecommendations of the National Academy of Sciences on the technicalbases for Yucca Mountain standards.

February 9 1996

EPA publishes final WIPP compliance criteria (40 -- art 194) inFederal Register (61 FR 5223).

February 13, 1996

NRC and EPA staff meet to discuss EPA rulemaking activities and theappropriate scope for the environmental standards and the implementingregulations for Yucca Mountain.

March 20, 1996

NRC and EPA staff meet to discuss EPA rulemaking activities and NRCstaff positions regarding the appropriate scope for the environmentalstandards and the implementing regulations for Yucca Mountain.

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April 10. 1996

EPA provides NRC with a working draft of 40 CFR Part 197 (environmentalstandards applicable to Yucca Mountain).

April 25, 1996

NRC staff provides EPA with informal staff comments on Part 197 workingdraft.

February 21, 1997

Chairman Shirley Ann Jackson (NRC) transmits letter to AdministratorCarol Browner (EPA) addressing regulatory consistency between NRC andEPA.

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