Policy Issue

(Notation Vote) 

December 31, 2012 SECY-13-0001

FOR: The Commissioners 

FROM: R. W. Borchardt 

 Executive Director for Operations 

SUBJECT: STAFF RECOMMENDATIONS FOR IMPROVING THE INTEGRATION 

OF THE ONGOING 10 CFR PART 61 RULEMAKING INITIATIVES 

PURPOSE: 

To request Commission approval of a staff proposal for improving the efficiency of the ongoing 

rulemaking efforts to update the 10 CFR Part 61 regulatory framework for the disposal of 

commercial low-level radioactive waste. If adopted, these recommendations would also 

improve the integration of earlier Commission direction. This paper also evaluates public 

comments received in response to the expanded 10 CFR Part 61 rulemaking. 

SUMMARY: 

The staff is proposing an integrated approach to revising 10 CFR Part 61. First, staff requests 

Commission approval to stop further efforts associated with SECY-10-0165. The staff believes 

that the current rulemaking under SRM-COMWDM-11-002/COMGEA-11-0002, which directed 

an amendment to the 2011 version of the draft proposed rule, accomplishes the Commission’s 

original direction in SRM-SECY-08-0147, implements some of the options presented in SECY10-0165, and meets the expanded direction in SRM-COMWDM-11-002/COMGEA-11-0002. 

The staff believes that this limited scope integrated rulemaking best accomplishes the 

Commission’s direction with respect to 10 CFR Part 61, and a separate rulemaking would no 

longer be needed to address the issues raised in SECY-10-0165. 

Second, the staff has evaluated public comments received in response to the expanded 10 CFR 

Part 61 rulemaking that the Commission directed the staff to prepare in SRM-COMWDM-11-

002/COMGEA-11-0002. Based upon its review of these comments and consistent with this 

recommended integration effort, the staff does not believe that the current 10 CFR Part 61 

rulemaking should be further expanded to include the additional issues raised in the public 

comments. 

CONTACT: Michael P. Lee, FSME/DWMEP 

 301-415-688 
The Commissioners -2- 

The recommendations proposed in this paper would have no impact on the existing staff 

direction to submit a revised rulemaking package by July 2013, consistent with 

SRM-SECY-08-0147 and SRM-COMWDM-11-002/COMGEA-11-0002. 

BACKGROUND:

Enclosure 1 illustrates the variety of directions issued to staff regarding the current proposed 

site-specific analysis rulemaking to revise the disposal requirements in 10 CFR Part 61, as well 

as future rulemaking activities pertaining to 10 CFR Part 61. Elements of this direction are 

described below. 

SECY-10-0165: In SRM M100617B (dated July 1, 2010), the Commission directed the staff to 

outline an approach for a comprehensive revision to 10 CFR Part 61 that was risk-informed and 

performance-based, including the resources and the timeline for completing the rulemaking. In 

response to SRM M100617B, the staff prepared SECY-10-0165 (dated December 27, 2010) 

and described the need to engage stakeholders and solicit their views on whether there should 

be amendments to the current 10 CFR Part 61 before proceeding with any rulemaking. In the 

Commission paper, staff identified a number of options to develop risk-informed and 

performance-based low-level radioactive waste (LLW) disposal regulations: 

1. Risk-inform the current waste classification framework at § 61.55. 

2. Revise 10 CFR Part 61 in a comprehensive manner. 

3. Develop a site-specific waste acceptance criteria (WAC). 

4. Align 10 CFR Part 61 with international approaches. 

5. Supersede direction given in SRM-08-0147. 

The Commission subsequently directed the staff to prepare a notation vote paper summarizing 

the stakeholder feedback received on SECY-10-0165 by October 2014 and to provide 

suggestions, as well as a recommendation, for the Commission to consider. In response, the 

staff sponsored a series of public meetings in 2011 and 2012 on SECY-10-0165 to discuss the 

options presented in that paper. The 2012 meetings were conducted as joint meetings held in 

connection with the staff’s public outreach efforts associated with SRM-COMWDM-11-

002/COMGEA-11-0002 (dated January 19, 2012). The staff has collected feedback on the 

options presented in SECY-10-0165. 

Additional Comments Received in Response to SRM-COMWDM-11-002/COMGEA-11-0002: 

Previously, in SRM-SECY-08-0147 (dated March 18, 2009), the Commission directed the staff 

to proceed with a limited rulemaking to amend 10 CFR Part 61 to include a requirement for a 

site-specific performance assessment for the disposal of large quantities of depleted uranium 

and other long-lived isotopes in a near-surface disposal facility. Although the current rule does 

not include an explicit site-specific performance assessment requirement, the Commission 

expects licensees and applicants will use performance assessment methodology to 

demonstrate compliance with 10 CFR Part 61. See the 1995 Probabilistic Risk Assessment 
The Commissioners -3- 

Policy Statement at 60 FR 42627. In a second SRM, SRM-SECY-10-0043 (dated October 13, 

2010), the staff was directed to include blended LLW streams as part of this rulemaking. 

In 2009, the staff held a number of public meetings to solicit comments on LLW performance 

assessments (74 FR 30175)1. Based on the comments received in connection with these 

meetings, the staff developed a technical basis document to support the rulemaking (Agency 

Document Access and Management System [ADAMS] Accession Number ML111040419) and 

shared it with the Agreement States. The draft proposed rulemaking language prepared in 2011 

would have required that licensees of currently operating LLW disposal facilities and future 

10 CFR Part 61 applicants conduct site-specific performance assessments to demonstrate 

compliance with the regulatory requirements to protect the general public from radiation doses 

consistent with § 61.41. In connection with the proposed performance assessment requirement, 

the staff also recommended that the time of compliance be specified at 20,000 years 

(ML111030586) to account for the presence of large quantities of long-lived isotopes that might 

be disposed of in a near-surface disposal facility. Additionally, the 2011 draft proposed 

rulemaking included a new requirement to conduct an intruder analysis under § 61.42 with a 

chronic exposure limit of 500 millirem/year. These analyses would identify additional restrictions 

or prohibitions that would be necessary at a particular disposal site for LLW with long-lived 

isotopes. 

In addition to the rulemaking, the staff planned to prepare a separate guidance document for 

public review and comment. The staff then made the draft proposed rule text (ML111150205) 

publicly available in May 2011 and solicited public comment on it (76 FR 24831). In August 

2011, the staff briefed the Advisory Committee on Reactor Safeguards (ACRS) on the draft 

proposed rule text, including the basis for the recommended time of compliance. In September 

2011, the ACRS issued a Committee Letter Report on the draft documents (ML11256A191). 

In a third SRM, designated SRM-COMWDM-11-0002/COMGEA-11-0002, and issued before the 

proposed rule package was sent to the Commission, the Commission directed the staff to 

amend the 2011 version of the draft proposed rule, and to seek public comment on the following 

four regulatory issues: 

• Whether licensees should be allowed to use International Commission on Radiological 

Protection (ICRP) dose methodologies in a site-specific performance assessment for the 

disposal of LLW. 

• Whether the regulations should incorporate a two-tiered approach that establishes a 

compliance period that covers the reasonably foreseeable future and a longer period of 

performance that is not established a priori but rather is established to evaluate the 

performance of the site over longer timeframes. The period of performance is developed 

based on the candidate site characteristics (waste package, waste form, disposal 

technology, cover technology and geo-hydrology) and the peak dose to a designated 

receptor. 

 

1 The staff previously obtained stakeholder feedback on LLW performance assessment methods in connection with 

the development of NUREG-1573 (“A Performance Assessment Methodology for Low-Level Radioactive Waste 

Disposal Facilities”), including sponsoring a two-day workshop in 1995. 
The Commissioners -4- 

• Whether disposal facilities should be allowed to establish site-specific Waste 

Acceptance Criteria (WAC) based on the results of the site’s performance assessment 

and intruder analysis. 

• Whether the provisions of the revised proposed rule that require the site-specific 

performance assessments and the development of the site-specific WAC, should specify 

a compatibility category that ensures alignment between the States and Federal 

Government on safety fundamentals, while providing the States with the flexibility to 

determine how to implement these safety requirements. 

The SRM directed the staff to provide a revised proposed rule package to the Commission 

within 18 months. The SRM also directed the staff to conduct public outreach meetings to 

seek stakeholder comments on the four regulatory issues identified by the Commission and to 

engage Agreement State representatives. Overall, there has been public support for amending 

10 CFR Part 61 along the lines proposed by the Commission. The public comments received 

on the 2011 and 2012 versions of draft proposed rule language will be discussed in the 

Commission paper transmitting the revised proposed rule package consistent with 

SRM-SECY-08-0147 and SRM-COMWDM-11-002/COMGEA-11-0002. 

In addition to the comments received on the four regulatory issues identified in SRMCOMWDM-11-002/COMGEA-11-0002, the staff received a number of additional public 

comments on the integrated 10 CFR Part 61 rulemaking. 

DISCUSSION: 

SECY-10-0165: In connection with the staff’s 2012 public outreach effort, staff received some 

comments in support of Options 2, 4, and 5 of SECY-10-0165. Some of the stakeholders 

questioned the need for any additional rulemaking beyond the current limited-scope rulemaking, 

which suggests that some stakeholders prefer Options 1 and 3 (risk informing the current waste 

classification tables at §61.55 and developing a site-specific WAC). 

Since receiving revised Commission direction in SRM-COMWDM-11-002/COMGEA-11-0002, 

staff has received some public feedback indicating a waning interest on commenting further on 

the SECY-10-0165 options. The reason given is that the intent of the Commission’s direction in 

SRM M100617B has been fulfilled through plans to effectively complete two of the five options 

presented in SECY-10-0165 (specifically Options 1 and 3). For example, both staff and 

stakeholders recognize that implementing the WAC option, to address the disposal of large 

quantities of depleted uranium, blended LLW, and other waste streams containing long-lived 

isotopes, corresponds to Option 3 in SECY-10-0165. Stakeholders are also aware that the staff 

has received Commission direction to update the § 61.55 waste classification tables and in 

doing so, determine the classification of depleted uranium; this effort is scheduled to begin in 

fiscal year 2015. This action corresponds to Option 1 in SECY-10-0165. 

The staff recommends that the Commission approve this integrated approach to the rulemaking 

and terminate efforts associated with pursuing the other options described in SECY-10-0165. 

Based on the comments received from stakeholders and on the staff analysis (Enclosure 2), 
The Commissioners -5- 

staff sees no compelling reason to engage in further public discussions on the other rulemaking 

options proposed in SECY-10-0165. 

SRM-COMWDM-11-002/COMGEA-11-0002: In response to the Commission’s request for 

feedback on the four regulatory issues identified in the January 2012 SRM, the staff participated 

in six events, including three public meetings sponsored by the NRC staff. 2 Stakeholder 

feedback on the four regulatory issues, including feedback from the Agreement States has been 

summarized in the regulatory basis document that has been developed in support of the current 

limited-scope rulemaking; those comments do not concern the issues discussed in this 

Commission paper. 

In connection with those discussions, though, stakeholders also provided recommendations on 

five additional topics that they want the NRC to consider as part of the ongoing limited-scope 

rulemaking. Those stakeholder recommendations included: 

• Updating the existing waste concentration tables at § 61.55 to reflect the latest ICRP 

dose conversion factors and dose methodologies. 

• Revisiting the current regulatory basis for the duration of institutional controls at a LLW 

disposal facility, currently specified as 100 years in § 61.30, and extending it to 300 

years. 

• Revisiting earlier assumptions concerning the minimum reporting requirements for 

certain isotopes cited in the Part 20 Appendix G LLW shipping manifest. 

• Developing criteria for the disposal of greater-than-Class C (GTCC) LLW. 

• Developing clearance criteria for the disposal of low activity radioactive waste. 

With respect to the first stakeholder recommendation to update the § 61.55 waste classification 

tables, the staff has already received direction from the Commission to budget resources to 

update those tables; this effort is scheduled to begin in fiscal year 2015. Further, incorporating 

a site-specific WAC would allow licensees to use updated dose conversion factors and dose 

methodologies in advance of any update to those tables. Accordingly, the goal of allowing 

updated dose conversion factors would be achieved through these efforts. 

The staff determined that the second stakeholder recommendation to revisit the current 

regulatory basis for 100 years of active institutional controls is not necessary for three reasons. 

First, the staff is not aware of any new information that would compel it to re-examine the basis 

for this time period. Second, the current LLW regulations envision a period of passive controls, 

extending over a few hundred years following the 100-year period of custodial care, which 

would provide some additional protection against the disturbance of a LLW disposal site by an 

inadvertent intruder. Third, the active institutional control period is related to the 10 CFR Part 61 

waste classification system used to define Class A LLW. Because the duration of the active 

institutional controls is closely tied to that system, the staff believes that discussions concerning 

 

2 Staff summaries of the NRC-sponsored public meetings can be found under the following ADAMS numbers: 

March 2, 2012 − ML120860043; May 15, 2012 − ML12171A179; and July 19, 2012 − ML12244A494.
The Commissioners -6- 

the duration of institutional controls are more appropriate for the later initiative to revise and 

update the § 61.55 waste classification tables.

The third stakeholder recommendation concerns the reporting of certain highly-mobile 

radionuclides3

 as required by Appendix G of 10 CFR Part 20. The staff determined that there is 

sufficient interest in the Appendix G LLW shipping manifest requirements pertaining to these 

radionuclides to warrant further discussions with stakeholders. The staff intends to engage 

stakeholders in separate discussions on how existing guidance found in NUREG/BR-0204, 

“Instructions for Completing NRC’s Uniform Low-Level Radioactive Waste Manifest,” might be 

amended to address the concerns about shipping manifest requirements. The staff is planning 

to conduct these discussions in Phoenix, Arizona, following the annual Waste Management 

Conference, in March 2013. Because these revisions involve a staff guidance document that is 

not directly related to this rulemaking, the staff does not plan to propose any changes to the 

shipping manifest requirements found in Appendix G of 10 CFR Part 20 at this time. 

Considering the fourth stakeholder recommendation, the staff has determined that the current 

rulemaking is not the appropriate agency action to include the development of GTCC disposal 

criteria. Under the Low-Level Radioactive Waste Policy Amendments Act of 1985, Section 

3(b)(1)(D), Congress assigned the Federal Government (in this case the U.S. Department of 

Energy) the responsibility for the disposal of GTCC waste. The existing Commission Policy is 

that GTCC waste shall be disposed of in a deep geologic repository (54 FR 22578) unless an 

acceptable disposal alternative meets with Commission approval as set forth in 

10 CFR § 61.55(a)(2)(iv)). 

Finally, the Commission previously decided to defer decision-making on low-activity radioactive 

waste and clearance levels. The staff is not aware of any significant change that would prompt 

reconsideration of the Commission’s deferred decision.4

 Therefore, the staff does not believe 

that it is necessary to revisit this topic in this rulemaking. 

Based on the stakeholder comments received and on the staff analysis (Enclosure 3), the staff 

does not recommend that the current limited-scope rulemaking be expanded to include those 

stakeholder suggestions. 

AGREEMENT STATE VIEWS: 

As a part of the above-noted activities, staff reached-out to the Agreement States.5

 The staff 

considered the Agreement States’ comments when it developed the conclusions and 

recommendations described above. The Agreement States provided some feedback on 

potential revisions to 10 CFR Part 61. As part of those discussions, Agreement State 

representatives recommended that the staff consider the additional stakeholder-suggested 

regulatory changes being proposed. Some Agreement State representatives expressed the 

view that any revisions to 10 CFR Part 61 should not be such that they would compel the states 

 

3 The specific isotopes in question cited in the public meeting included carbon-14, technectium-99, iodine-129, 

chlorine-36, and tritium.

4

 See SRM-SECY-05-0054, “Proposed Rule: Radiological Criteria for Controlling the Disposition of Solid Materials,” 

dated June 1, 2005.

5

 These discussions included direct, government-to-government telephone calls with the LLW disposal facility-sited 

Agreement States as well as a separate meeting with NRC Agreement States on May 15, 2012, in Orlando, Florida.
The Commissioners -7- 

to receive large quantities of depleted uranium. Views were also expressed that the current 

100-year duration for active institutional controls was sufficient whereas others felt that the 

duration should be extended to 300 years. 

COMMITMENT: 

The staff will meet with stakeholders in March 2013 to examine how NUREG/BR-0204 might be 

updated in connection with the reporting of certain isotopes in LLW manifests that might be 

subject to minimum detection limits. 

RECOMMENDATION: 

The staff recommends ending further efforts associated with SECY-10-0165. The staff also 

recommends that the Commission proceed with the integrated approach to revising 10 CFR 

Part 61. Staff efforts would focus on implementing Commission direction through this integrated 

limited scope rulemaking described above. 

RESOURCES

This paper does not address any resource implications. 

COORDINATION: 

The Office of the General Counsel has no legal objection to this paper. 

 /RA by Michael F. Weber for/ 

R. W. Borchardt 

Executive Director 

 for Operations 

Enclosures: 

1. 10 CFR Part 61 Rulemaking 

 Assignments 

2. Summary of Public Comments 

3. Additional Rulemaking 

 Recommendations 
The Commissioners -8- 

view that any revisions to 10 CFR Part 61 should not be such that they would compel the states 

to receive large quantities of depleted uranium. Views were also expressed that the current 

100-year duration for active institutional controls was sufficient whereas others felt that the 

duration should be extended to 300 years. 

COMMITMENT: 

The staff will meet with stakeholders in March 2013 to examine how NUREG/BR-0204 might be 

updated in connection with the reporting of certain isotopes in LLW manifests that might be 

subject to minimum detection limits. 

RECOMMENDATION: 

The staff recommends ending further efforts associated with SECY-10-0165. The staff also 

recommends that the Commission proceed with the integrated approach to revising 10 CFR 

Part 61. Staff efforts would focus on implementing Commission direction through this integrated 

limited scope rulemaking described above. 

RESOURCES

This paper does not address any resource implications. 

COORDINATION: 

The Office of the General Counsel has no legal objection to this paper. 

 

 /RA by Michael F. Weber for/ 

R. W. Borchardt 

Executive Director 

 for Operations 

Enclosures: 

1. 10 CFR Part 61 Rulemaking 

 Assignments 

2. Summary of Public Comments 

3. Additional Rulemaking 

 Recommendations 

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OFFICIAL RECORD COPY