1 

UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

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BRIEFING ON GREATER-THAN-CLASS-C LOW LEVEL RADIOACTIVE 

WASTE 

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THURSDAY 

AUGUST 13, 2015 

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ROCKVILLE, MARYLAND 

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The Commission convened in the 

Commissioners Hearing Room at the Nuclear Regulatory 

Commission, One White Flint North, 11555 Rockville 

Pike, at 9:00 a.m., Stephen G. Burns, Chairman, 

presiding. 

COMMISSION MEMBERS: 

STEPHEN G. BURNS, Chairman 

JEFF BARAN, Commissioner 

WILLIAM C. OSTENDORFF, Commissioner 

KRISTIN L. SVINICKI, Commissioner 

 
 2 

NRC STAFF PRESENT 

LARRY W. CAMPER, NMSS 

CATHERINE HANEY, NMSS 

MICHAEL WEBER, Deputy Executive Director for 

Operations 

ALSO PRESENT: 

THOMAS KALINOWSKI, DW James Consulting 

SCOTT KIRK, Waste Control Specialists 

CHARLES MAGUIRE, Texas Commission on 

Environmental Quality 

ARJUN MAKHIJANI, Institute for Energy and 

Environmental Research 

FRANK MARCINOWSKI, US Department of Energy 

JANET SCHLUETER, Nuclear Energy Institute 

1 
 3 

1 P R O C E E D I N G S 

2 CHAIRMAN BURNS: I invite our first panel 

3 up to the table. I want to welcome everyone to this 

4 morning's meeting of both our external panelists and NRC 

5 staff, representatives from the Department of Energy 

6 and Agreement States, as well as members of the public 

7 who may be attending or watching this Commission meeting 

8 remotely. 

9 Today, the Commission will be briefed on 

10 the current regulatory environment and challenges for 

11 the disposal of greater than Class-C low-level 

12 radioactive waste. And this meeting will provide the 

13 Commission an opportunity to hear directly views from 

14 a panel of external stakeholders, as well as a panel of 

15 regulatory staff on several significant topics related 

16 to GTCC low-level radioactive waste disposal. 

17 First we will have presentations from a 

18 panel of external stakeholders, including Ms. Janet 

19 Schleuter, Director of Fuel and Material Safety at the 

20 Nuclear Energy Institute will discuss industry views. 

21 Mr. Thomas Kalinowski, Vice President of DW 

22 James Consulting LLC will discuss low-level waste 

23 streams from nuclear power plants, including greater 

24 than Class-C waste streams. 

25 Mr. Scott Kirk, a Vice President of 

26 Licensing and Regulatory Affairs of Waste Control 
 4 

1 Specialists, will discuss low-level waste disposal site 

2 interest in accepting GTCC waste. 

3 And Dr. Arjun Makhijani, the President of 

4 the Institute for Energy and Environmental Research, 

5 who will give a public interest perspective on the 

6 topic. 

7 After presentations from the first panel 

8 and Commission questions, we will have a brief break 

9 before hearing from our other panel. 

10 And so with that, would any of my colleagues 

11 like to say anything? Commission Svinicki. 

12 COMMISSIONER SVINICKI: Yes, I would. 

13 Well, good morning and thank you to our invited 

14 participants, to the NRC staff, and to others who are 

15 tuning in. This is a complex topic. I wanted to 

16 clarify for myself that I really appreciate I think the 

17 perspectives that are shared today will be very valuable 

18 background. The Agency has made public a paper on a 

19 related topic, SECY-15-0094 that is before the 

20 Commission and it is not the purpose of today's meeting, 

21 of course, to deliberate that or to arrive at any 

22 conclusions about it. So, again, I am excited. I am 

23 in data gathering mode here and I just look forward to 

24 learning more background about GTCC and low-level waste 

25 issues. Thank you. 

26 CHAIRMAN BURNS: Thank you, Commissioner. 
 5 

1 Anybody else? 

2 Okay, first we will begin with Janet 

3 Schleuter from the Nuclear Energy Institute to begin the 

4 first panel. Welcome. 

5 MS. SCHLUETER: Good morning, Mr. Chairman 

6 and NRC Commissioners. I would like to thank you for 

7 the opportunity to participate in today's briefing and 

8 also for early release of the SECY paper 15-0094. 

9 For information to some, the Nuclear Energy 

10 Institute is an industry policy organization that 

11 addresses generic issues. Our members include 

12 entities that are licensed to operate commercial 

13 nuclear power plants, fuel cycle facilities, uranium 

14 recovery operations, and materials users. As well, it 

15 includes plant designers, major architects and 

16 engineering firms, and other organizations and entities 

17 that support the global nuclear energy industry. 

18 With that introduction, I would like to 

19 begin with two caveats. First, NEI offers a response 

20 to the information provided in the staff paper, 

21 primarily from a technical and a policy perspective. 

22 As the staff points out, there are legitimate legal 

23 questions regarding whether allowing a state to license 

24 and regulate disposal greater than Class-C and 

25 transuranic waste is appropriate under the Low-level 

26 Radioactive Waste Policy Act amendments. It appears 
 6 

1 that those issues have been appropriately identified in 

2 the paper and, I would imagine, have been considered 

3 extensively by your Office of the General Counsel. 

4 My presentation today will not address the 

5 legal issues but NEI would be happy to make the 

6 appropriate industry representatives available to 

7 engage on them, should you wish. 

8 Secondly, industry's views are provided in 

9 the absence of any knowledge of the Department of 

10 Energy's position on the staff action options in the 

11 paper or the contents of its soon to be issued Final 

12 Environmental Impact Statement on GTCC disposal. We 

13 have not been privy to any discussions that may have 

14 occurred between NRC, DOE, and the State of Texas. So, 

15 again, my comments are necessarily limited to providing 

16 industry's initial reaction to the information in the 

17 staff paper. 

18 Slide 2, please. As an overview, it is 

19 important to recognize that industry-generated GTCC 

20 waste is safely and securely managed today by a variety 

21 of licensees that are mentioned on the next slide. We 

22 are not aware of any public health and safety or 

23 environmental concern or issue that needs an immediate 

24 or near-term regulatory response. That being said, we 

25 do believe, based in part on the jurisdictional question 

26 raised by the State of Texas to NRC, that the time is 
 7 

1 right to implement a predictable regulatory framework 

2 for the disposal of GTCC and TRU wastes. 

3 Inherently, such a framework must be 

4 carefully constructed by the federal government with 

5 the Agreement States and informed by industry's 

6 experience in safely managing such waste. Such 

7 decisions must also fully address all related 

8 jurisdictional, policy, legal, and technical issues. 

9 To that end, Options 1 and 2 would both 

10 provide a path forward, where Waste Control Specialists 

11 would be authorized to dispose of 

12 commercially-generated GTCC and TRU waste at its Texas 

13 facility. The difference between the two options, as 

14 you know, is who would license and regulate the 

15 facility, NRC or the State of Texas. 

16 Further, under either option, the staff 

17 states that it would modify Part 61 to address an 

18 internal inconsistency in the definition and regulation 

19 of TRU waste. We support clarifying the regulations 

20 and trust it would not result in unacceptable licensing 

21 delays. 

22 Finally, Option 2, we believe, offers 

23 unique benefits, which I will discuss more in detail 

24 later. Next slide, please. 

25 For background, GTCC waste is commercially 

26 generated in various forms, types and volumes at 
 8 

1 different categories of licensees, and Agreement State 

2 licensees, such as the ones listed here. More 

3 specifically, such waste includes, but is not limited 

4 to, activated metals, contaminated equipment, scrap 

5 metal, glove boxes, filters, resins, soils, other 

6 materials, debris from irradiated fuel analysis, and 

7 large bladder radiator and other sealed sources. 

8 Enclosure 2 of the staff paper provides an 

9 excellent overview of the forms, types, generators, and 

10 volumes of GTCC waste and my colleague, Mr. Kalinowski, 

11 will provide detailed information on waste generation 

12 at the nuclear power plants. 

13 It is also very important to consider that 

14 most, if not all, licensees work very hard not to 

15 generate GTCC waste in the absence of a permit disposal 

16 options. Further, some licensees implement NRC's 

17 Branch Technical Position on concentration averaging 

18 and encapsulation that allows some GTCC waste to meet 

19 the Part 61 definitions of low-level waste and be 

20 disposed of accordingly. Next slide, please. 

21 In the absence of a current disposal 

22 option, GTCC waste is stored safely on-site and 

23 typically, within a secured and controlled area. These 

24 areas often include such features as intrusion 

25 detection, surveillance and radiation monitoring, and 

26 are part of the licensee's integrated security program. 
 9 

1 We are not aware of any safety or security concerns 

2 regarding our current management practices of such 

3 waste. 

4 Further, WCS is currently authorized by 

5 Texas to dispose of waste that are the responsibility 

6 of the federal government in its on-site federal waste 

7 facility. So, from a risk perspective, the disposal of 

8 commercially-generated GTCC and TRU waste is 

9 essentially no different. In that regard, Option 2 

10 helps facilitate a consistent regulatory approach by 

11 Texas regulating the safe disposal of such waste. 

12 As you are aware, WCS submitted a petition 

13 for rulemaking to the State of Texas and Texas has raised 

14 an important jurisdictional question to the NRC. In 

15 response to action options for how the NRC might proceed 

16 are under consideration. And we commend the staff for 

17 its timely and comprehensive response to the issue in 

18 a very informative information staff paper. Slide 5, 

19 please. 

20 As one might assume, there are related 

21 issues that need to be considered. For example, we 

22 eagerly await issuance of DOE's Final Environmental 

23 Impact Study on GTCC waste disposal. We trust that the 

24 FEIS will include a preferred alternative that may or 

25 may not explicitly consider the jurisdictional matter 

26 before the Commission today. In absence of the FEIS, 
 10 

1 we trust that NRC staff has fully addressed DOE's input, 

2 as it actually formed the two regulatory action items 

3 described in the staff paper. 

4 Also, as the Commission is aware, the 

5 public comment period on a proposed Part 61 modification 

6 regarding the disposal of certain waste streams just 

7 recently closed. In commenting on that proposed rule, 

8 NEI and others raised the question regarding the need 

9 to assess the impact of that rulemaking from potential 

10 future modifications to Part 61 waste classification 

11 tables. The concern is that future modifications to 

12 the tables could impact current rulemakings, 

13 specifically, how waste is categorized. The same issue 

14 is relevant here and should be considered. The purpose 

15 of such consideration is to avoid future unintended 

16 consequences from today's decisions. Slide 6, please. 

17 As I stated previously, both options 1 and 

18 2 appear to be reasonable paths forward, in that either 

19 option would permit consideration of the currently 

20 operating WCS facility as a permanent disposal option 

21 for GTCC and TRU waste. NEI fully supports that 

22 outcome. 

23 As clearly stated in the paper, Option 2 

24 would permit the State of Texas to actually expand its 

25 current regulatory role over the site. It is also 

26 important to note that NRC would continue, if not 
 11 

1 actually expand its current oversight role of the Texas 

2 program. Next slide, please. 

3 We firmly believe that, provided that the 

4 statutory and regulatory implications of Option 2 are 

5 fully addressed, that Option 2 has certain unique 

6 advantages that include but are not limited to the 

7 following. 

8 Option 2 can be implemented in a manner that 

9 we believe is adequately protective of public health and 

10 safety in the environment. Our confidence is based in 

11 part on the fact that the Agreement State of Texas has 

12 over 50 years of experience regulating Atomic Energy Act 

13 material, in addition to regulating non-AEA materials 

14 and sources of radiation for even longer. Further, the 

15 state is very familiar with the characteristics and 

16 operations of the WCS site, given its past licensing 

17 decisions and current regulatory role. 

18 Additionally, we are confident that a 

19 rigorous licensing process and decision would be made 

20 in consultation with the NRC. Further, NRC will 

21 continue to oversee the agreement state program through 

22 periodic reviews that are performed under its 

23 integrated materials performance evaluation program. 

24 Option 2 is clearly the most efficient and 

25 least resource-intense of regulatory option, in part, 

26 since the current regulatory role of the State of Texas 
 12 

1 would simply be expanded. 

2 As you know, under Option 1, NRC would 

3 actually become the regulator of only a portion of the 

4 existing site. Further, as the staff points out, 

5 Option 1 would require significantly more NRC resources 

6 for the staff to familiarize itself with site 

7 characteristics, conditions, and et cetera. 

8 Further utilizing a currently operating 

9 waste disposal site is by far the most environmentally 

10 friendly option, since an entirely new site disposal 

11 would not need to be cited in Texas or in any other state. 

12 That fact, in and of itself, is significant. 

13 Finally, it is our understanding that the 

14 WCS site operates with the support of the local 

15 community, clearly, a key attribute for success of any 

16 waste site. Last slide, please. 

17 In summary, industry minimizes its 

18 generation of radioactive waste and safely and securely 

19 manages it today. Our goal, however, is to see it 

20 disposed of permanently. The time is right and 

21 industry supports well-informed decisions to implement 

22 a regulatory framework that provides for the permanent 

23 disposal of GTCC and TU waste at the WCS facility. 

24 Industry prefers option as a reasonable and 

25 the most efficient and effective path forward, provided 

26 that all statutory and regulatory implications are 
 13 

1 addressed. 

2 Finally, to increase transparency of these 

3 decisions, we respectfully suggest that one or more 

4 public meetings be held with the responsible 

5 decision-makers and affected and interested parties to 

6 ensure that all jurisdictional, policy, regulatory, and 

7 technical issues are clearly identified and understood. 

8 I thank you, again, for the opportunity to 

9 participate in the briefing today and I look forward to 

10 the dialogue. Thank you. 

11 CHAIRMAN BURNS: Thank you. Mr. 

12 Kalinowski. 

13 MR. KALINOWSKI: I also would like to thank 

14 the Commissioners for the opportunity to talk to you 

15 this morning. 

16 My presentation is going to focused more on 

17 GTCC waste that is generated from nuclear utilities. 

18 There are other sources which need to be addressed but 

19 I think, primarily, for my company's interest, we are 

20 looking at what nuclear utilities generate. Next 

21 slide. 

22 There is two basic categories of waste from 

23 nuclear power plants, process waste streams and 

24 activated metals. Process waste streams consist of 

25 resins, filters, DAW, contaminated items, building 

26 rubble at the time of decommissioning, and then 
 14 

1 activated metals. And the activated metals are going 

2 to be the primary source of GTCC waste from the reactors. 

3 Operational considerations, the way the 

4 plants operate, the use of the Branch Technical Position 

5 will pretty much eliminate GTCC waste from the process 

6 waste streams, with the exception, possibly, of some 

7 cartridge filters. 

8 Activated metals from the reactors include 

9 consumable items, hardware control blades, which are 

10 generated during the course of operation, but the 

11 primary volumes are going to be at the time of 

12 decommissioning, when the vessel itself is disassembled 

13 and the internals are segmented and sent for disposal. 

14 So, during the course of operation, there 

15 should be very little waste, GTCC waste. The majority 

16 of it will be done at the time of decommissioning. 

17 Slide 3. 

18 This slide gives a list of some of the 

19 primary components that are going to be GTCC waste. 

20 Activated metals, and this consists primarily of 

21 stainless steels. There are some specialty metals that 

22 are part of fuel assembly components but those are 

23 relatively small volume. Stainless steel is going to 

24 be the largest part of it. There will be some 

25 instrumentation pieces that are GTCC by themselves and 

26 contain some special nuclear material. It is usually 
 15 

1 in small quantities. In the course of operation, we can 

2 typically average these with the rest of the component, 

3 dispose of them as low-level waste. 

4 There are some cartridge filters from 

5 pressurized water reactors that occasionally become 

6 GTCC waste. The reason for it is a little questionable 

7 sometimes. A lot of these are based on carbon-14, which 

8 is estimated and our methods for estimating that are not 

9 always the most accurate. There is a lot of very 

10 conservative assumptions that are used in that. So, it 

11 is possible that some of the cartridge filters are, with 

12 some better calculations, could not be GTCC. 

13 I did look at DOE's estimates in the 

14 materials presented or prepared for this presentation. 

15 I think the DOE estimates, in general, are fairly 

16 reasonable. They do tend to be a little bit 

17 conservative because the activations and LSEs that they 

18 used in their estimates include quantities of certain 

19 elements that are not well-known in stainless steels. 

20 They are probably over-estimated and I don't think it 

21 takes into account the advantages we can take with 

22 concentration averaging or refined activation 

23 analysis. 

24 I don't think the DOE estimate takes into 

25 account plant life extension adequately. The analysis 

26 looked at 60 years but there is talk out there right now 
 16 

1 of going to 80 years. That might affect the volume 

2 estimates a little bit. And there are also some new 

3 alloys being developed for use in nuclear power plants 

4 that do contain actual measured quantities of some of 

5 the elements that will activate to 

6 classification-controlling radionuclides. And that 

7 should also be considered for the future. Next slide. 

8 Getting a little more technical, 

9 presenting a little bit of the average concentrations 

10 of some of the class-controlling radioisotopes in 

11 hardware. And this is pretty much what is seen right 

12 now in Class-C hardware. Niobium-94 is a fraction of 

13 about 0.47 for Class-C fraction. Niobium-94 in 

14 stainless steels, again, is based on an elemental 

15 composition, essentially a less-than value, minimal 

16 value, based on contamination in the material, in the 

17 base material. So, our numbers for niobium-94 are 

18 likely to be overestimates. Those elemental 

19 compositions are based on NUREG/CR-3474, which did some 

20 testing at Battelle Labs to come up with elemental 

21 compositions. But the sample size was fairly small and 

22 some of our clients have done their own testing and have 

23 seen niobium concentrations in stainless steels far 

24 lower than the standard or the 3474 values. So, my 

25 personal belief is that we are probably overestimating 

26 that stainless steel. 
 17 

1 Nickel-59 is a very small fraction, 

2 typically in Class-C. Nickel-63 then becomes the 

3 dominant radionuclide for determining that waste is 

4 greater than Class-C in the long term. 

5 In the course of operations, individual 

6 components are typically within a factor of 2 or 10 of 

7 the class limit and so they are concentration averaged 

8 in accordance with the Branch Technical Position. 

9 Transuranics are the other radioisotope 

10 that is of concern for GTCC waste, primary transuranics 

11 are not going to be an issue with commercial power 

12 reactors. We only see significant transuranic 

13 activities when there is significant fuel failures. 

14 That is, the industry has done a very good job of 

15 reducing that over the years. Even some of the sites 

16 that have experienced fuel failures early on in the 

17 1970s and early '80s, they did not generate significant 

18 quantities of transuranics. So, it is primary on a 

19 contamination layer. Next slide, please. 

20 So, GTCC waste from nuclear power reactors 

21 is actually going to be pretty much like the Class-C 

22 waste that they are generated, consisting of the 

23 activated metals. When we go into stainless steel from 

24 core regions, we see Table 1 fractions about a factor 

25 of 18 of the Class-C limit. And again, that is 

26 primarily niobium-driven, which, I will repeat again, 
 18 

1 is probably an overestimate. 

2 Table 2 fraction up to a factor of 16 of the 

3 class limit, primarily driven by nickel-63. It is not 

4 significantly different than the other kinds of 

5 low-level waste that is disposed of. 

6 GTCC waste from other metals, again, there 

7 are some fuel component constituents, high nickel 

8 alloys that will generate higher levels, very small 

9 volumes. And again, the cartridge filters. Those are 

10 primarily driven by tech and iodine, which, again, are 

11 estimated radionuclides. They are based on scaling 

12 factors and there is considerable latitude in 

13 developing those. I think they are, again, 

14 overestimates. 

15 Last slide. In conclusion, most of the 

16 GTCC waste from commercial reactors is similar to the 

17 Class-C waste they generate. The same materials, a 

18 little higher activity. 

19 The isotopes driving classification are 

20 mostly the shorter half-life radionuclides. Nickel-63 

21 has a half-life of about 100 years. That is manageable 

22 in a near-surface environment with the proper controls. 

23 And I think if we develop a site with those additional 

24 controls or analyses, I think it is very feasible to 

25 dispose of this kind of material in that manner. 

26 Thank you. 
 19 

1 CHAIRMAN BURNS: Thank you. Mr. Kirk. 

2 MR. KIRK: Let me start. First of all, 

3 thank you very much for the invitation. I am very 

4 pleased to be here to share WCS's views on greater than 

5 Class-C waste. Next slide, please. 

6 WCS commends the NRC, the Texas Commission 

7 on Environmental Quality and the Department of Energy 

8 for making significant strides that could provide a 

9 possible pathway for the disposal of commercial and 

10 federally-owned or -generated greater than Class-C 

11 waste. I think this is a matter of national 

12 significance at the moment. And I would also like to 

13 compliment the staff, too. They did an outstanding job 

14 when they prepared SECY-15-0094. It is an outstanding 

15 report. I think it was very well thought through. 

16 The SECY paper also discusses and 

17 potentially allows for disposal of waste based on the 

18 hazards that is posed to public health via a 

19 site-specific analysis. And it also could potentially 

20 provide a pathway for orphan disused sealed sources, as 

21 specified in the Energy Policy Act of 2005. 

22 It also potentially provides a pathway for 

23 other orphaned type waste to help accelerate the cleanup 

24 of certain DOE sites. For example, those bearing 

25 transuranic waste. Next slide. 

26 WCS agrees with the staff that Option 2 is 
 20 

1 preferable, is consistent with historical NRC 

2 statements expressing a desire to retain the option of 

3 allowing Agreement States to regulate the disposal of 

4 greater than Class-C waste. 

5 Texas also has extensive knowledge of the 

6 WCS facilities that would allow greater regulatory 

7 flexibility. The actual license that we submitted, it 

8 was reviewed for about five years before it was issued 

9 in 2009. And since that time, additional experiences 

10 have been acquired over the site with various amendment 

11 requests. For example, the major amendment that would 

12 allow the disposal of large quantities of depleted 

13 uranium. 

14 Texas could also request that the NRC 

15 approve a proposal to license the disposal of greater 

16 than Class-C waste, pursuant to Part 61.55. 

17 The NRC's regulatory oversight could also 

18 be provided through the Agreement States Integrated 

19 Materials Performance and Evaluation Program. Next 

20 slide. 

21 Option 2. It would also establish a 

22 clear-cut federal and state licensing pathway for the 

23 disposal of greater than Class-C waste. And it also 

24 avoids having to construct a new cell for the disposal 

25 of commercial GTCC that would be licensed by the NRC. 

26 It is one thing to amend your license to take additional 
 21 

1 waste after you have a license but it is a completely 

2 matter to prepare an application and go through the 

3 review process. When you submit a license application, 

4 as you know, an environmental impact statement is 

5 prepared, it is resource intensive and we think Option 

6 2 is the preferred alternative. 

7 A separate rulemaking, we agree, is needed 

8 to ensure that waste that contains certain 

9 alpha-emitting transuranic radionuclides at 

10 concentrations exceeding 100 nanocuries per gram, that 

11 it is not orphaned. 

12 We believe Option 2 is consistent with the 

13 framework, more closely aligned to ensuring that waste 

14 is disposed of based on the risk, as opposed to its 

15 origins or statutory definitions. 

16 For example, certain transuranic waste 

17 that has concentrations of 99 nanocuries per gram is 

18 safer disposal in a near-surface disposal facility. 

19 However, if that same waste stream has concentrations 

20 of 101, then it is not under the current framework. 

21 WCS did submit a petition for rulemaking 

22 that we have unanimously approved by the TCEQ 

23 commissioners on September the 10th but some 

24 clarification is really needed. I think the 

25 commissioners' actions started an important 

26 conversation and it directed the staff to reach out to 
 22 

1 the NRC to clarify its regulatory responsibilities. It 

2 did not approve any specific changes to the exact 

3 regulations at that time. 

4 Our petition, what we intended it to 

5 accomplish, we intend to at least address the issues 

6 that there were certain Class C dilemmas that are in the 

7 regulations that would need to be removed and that is 

8 really what the petition focused on. 

9 The petition also helped to better align 

10 the Texas regulations in a manner more consistent with 

11 state and federal statutes and regulations. 

12 One of the key provisions in the Texas 

13 Radiation Control Act, they define what is called 

14 federal facility waste. And federal facility waste has 

15 to be disposed of in our federal waste disposal 

16 facility. And federal facility waste is that waste 

17 which is the responsibility of the federal government, 

18 as defined in the Low-Level Waste Policy Act Amendments 

19 of 1985. And as such, the federal government would be 

20 responsible for disposing of all DOE-owned or 

21 -generated low-level waste and commercial greater than 

22 Class-C waste at our federal waste disposal facility. 

23 Next slide. 

24 What you see here is an aerial photograph 

25 of the site. The large facility in the center is our 

26 federal waste disposal facility. Again, commercial 
 23 

1 and DOE-owned or -generated greater than Class-C waste 

2 can only be allowed to be disposed of in our FWF. It 

3 would not be allowed to be disposed of at the compact 

4 facility. 

5 It is also important to note that the 

6 Department of Energy is responsible for taking title of 

7 the FWF after post-closure. That was mandated by Texas 

8 statute and it required an agreement with the Department 

9 of Energy as a requirement of our license. Next slide. 

10 What I wanted to do here is focus on the sort 

11 of the technical basis that established the Class-C 

12 limits from the start. Now the NRC established the 

13 Class-C limits in the initial Part 61 rulemaking, based 

14 on certain scenarios for protecting the inadvertent 

15 intruder, many of those initial assumptions that don't 

16 hold true today. For example, the scenarios that 

17 defined the Class-C limits, it was based on an 

18 agricultural resident scenario that relied on water for 

19 irrigation and drinking water. It was also limited to 

20 disposals or evaluated for disposal facilities in a 

21 humid environment. It required disposal of Class-C 

22 waste at depths of five meters below grade or with 

23 intruder barriers designed to last at least 500 years. 

24 Waste that exceeded the Class-C limits, they were 

25 considered not generally suitable for near-surface 

26 disposal back in 1981. Next slide. 
 24 

1 I think when you look at the slide, just at 

2 face value, you could see that the Barnwell facility was 

3 opened in 1969, I could see how there could be questions 

4 raised about what did you dispose of greater than 

5 Class-C waste under those scenarios I just described at 

6 the Barnwell facility. However, a lot has happened 

7 since 1981. The industry has matured considerably. 

8 If you look at our slide at the bottom that pictures our 

9 facility, we believe that waste that wasn't suitable 

10 for near-surface disposal back in the '80s could be 

11 demonstrated to be safe today. 

12 For example, if you dispose of the waste at 

13 much deeper depths, if you had multiple intrusion 

14 barriers, if you located the facility in an area that 

15 has minimal rainfall, high rates of evapotranspiration 

16 and lack of potable water sources. 

17 The point being, the historical scenarios 

18 do not reflect the practices today of a modern disposal 

19 facility, especially one located like WCS in an arid 

20 environment. Next slide. 

21 The DOE may select a commercial entity as 

22 one of its preferred alternatives, as part of their 

23 environmental impact statement. The draft 

24 environmental impact statement that did evaluate the 

25 disposals at an enhanced near-surface disposal vault 

26 facility very similar to the design of the federal waste 
 25 

1 disposal facility. The slide at the bottom of the page, 

2 this is a depiction of what a near-surface vault 

3 facility would look like. 

4 The characteristics or the attributes of 

5 that facility would include more barriers, deeper depth 

6 of disposal, and enhanced waste packaging. 

7 The DOE's Final Environmental Impact 

8 Statement is supposed to be issued, hopefully, by the 

9 end of this year. Next slide. 

10 Site characteristics of the WCS facility, 

11 we can stack these containers, as you can see on the 

12 bottom, they are stacked on what is called modular 

13 concrete canisters. We can stack those seven-high. 

14 But all the waste is disposed of in impermeable clays, 

15 about 600 to 800 feet thick. There are more or about 

16 the same impermeability as concrete. It is also far 

17 removed from any water tables. It is about 600 to 1,000 

18 feet below grade, which you encounter any sort of water 

19 but it is also not potable. 

20 Our site is an arid environment. We 

21 receive less than 15 inches of rainfall a year and a 

22 potential to evapotranspirate more than six inches of 

23 water per year. Next slide. 

24 This has to do with enhanced waste 

25 packaging. One of the things that makes our facility 

26 very unique is we make our own modular concrete 
 26 

1 canisters for some of the Class-A waste, it was 

2 high-dose rate, and all the Class-B and C waste is placed 

3 into these MCCs. It is grouted in place. But sometimes 

4 we have to make specialty MCCs such as high-density MCCs 

5 that we have used for irradiated hardware. Irradiated 

6 hardware can have very high dose rates. These 

7 containers are probably two-feet thick. They also have 

8 a steel insert. It allows us, today, to handle pretty 

9 hot activated metals and we dispose of those today at 

10 our facility. 

11 These MCCs, they weigh up to about 100,000 

12 pounds and they are ten-feet in height. They are very 

13 intruder-resistant and that also reduces radiation 

14 levels and impedes the mobility of radionuclides. 

15 Again, as I said, we can stack these seven-high in our 

16 FWF and the disposal depths are greater than or it is 

17 possible, more than 30 meters. Thirty meters is key 

18 because that is the definition for a near-surface 

19 disposal facility. So, a portion of our facilities 

20 waste can be disposed of at even deeper depths. Next 

21 slide. 

22 In conclusion, again, WCS commends the NRC, 

23 the Texas Commission on Environmental Quality and the 

24 Department of Energy for their leadership in moving 

25 forward on this very important topic. We think it could 

26 provide a disposal pathway for orphaned disused sealed 
 27 

1 sources, as envisioned under the Energy Policy Act of 

2 2005, as well as helping with the decommissioning at 

3 certain DOE sites that would need to be addressed by the 

4 transuranic waste rulemaking. 

5 Waste that is not suitable for near-surface 

6 disposal in the 1980s maybe suitable for disposal in 

7 an enhanced near surface disposal facility like WCS. 

8 And again, we think Option 2 is the preferred 

9 alternative. 

10 And that is the conclusion of our 

11 presentation. Thank you for your time. 

12 CHAIRMAN BURNS: Thank you, Mr. Kirk. Dr. 

13 Makhijani. 

14 DR. MAKHIJANI: Thank you, Mr. Chairman, 

15 Commissioners. 

16 In the past I have once been very gratified 

17 that the Commission did agree with one of my many 

18 interventions regarding large amounts of depleted 

19 uranium. And I know that part of this proceeding is at 

20 least due to that Commission decision that large amounts 

21 of depleted uranium weren't automatically Class-A based 

22 on past rulemaking. 

23 Since that time, however, I have been very 

24 disappointed in not only in what has been published but 

25 in the systematic setting aside of sound science, sound 

26 advice, without any serious scientific or technical 
 28 

1 reasons being given. So, I am very glad you are in 

2 data-gathering mode and I hope that -- I don't expect 

3 that everything I say will be accepted but if it is, or 

4 it is not, that there will be sound reasons forthcoming 

5 for that from you and your office. So, thank you very 

6 much in anticipation for that. 

7 Overview slide, please, second slide. So, 

8 I will make a few points. One in regard to the idea that 

9 you can do 10,000 year modeling for near-surface 

10 disposal, which is a large part of the basis for the 

11 discussion that you can dispose of GTCC waste in 

12 near-surface disposal. 

13 I will talk about 61.55 and how it should 

14 be tightened. I will talk about 61.41 and the dose 

15 limits that are proposed in the new rule, which would 

16 apply to GTCC disposal if it is disposed of in 

17 near-surface disposal. I think my bottom line is that 

18 GTCC and GTCC-like waste that the DOE is considering, 

19 along with quite a large part of what is now called 

20 Class-C waste or equivalent Class-C waste in the DOE 

21 should be disposed of in deep geologic disposal and not 

22 in near-surface disposal. 

23 The original intent of GTCC in 10 CFR 61.55 

24 was sound but it was vague. And it should be tightened 

25 and made mandatory. 

26 So, that will be the thrust of my remarks. 
 29 

1 A few years ago, I think in 2009 -- next 

2 slide -- an NRC-invited geochemist Peter Burns said the 

3 following. And this is in a transcript of that 

4 briefing. I was particularly amused -- quote, I was 

5 particularly amused by the climatic divisions, none of 

6 which can be relied on, even perhaps at 1,000 but 

7 certainly not in 10,000 or 100,000 years. As an 

8 example, I am a geoscientist. So, I have this rare 

9 ability to see into the far distant past. I know, for 

10 example, that Death Valley was filled with about 1,000 

11 feet of water 10,000 years ago. And that tells you how 

12 much the climate can change in the arid regions. And 

13 that is about what we are doing to the climate. The 

14 proposed rules have ignored completely the specifics of 

15 what we are doing to the climate. It ignored completely 

16 this advice from Dr. Burns. No computer model can fix 

17 this uncertainty that Death Valley was under 1,000 feet 

18 of water. What is going to happen to the WCS site in 

19 Texas in 10,000 years? Is it going to remain arid? 

20 What is going to happen to the water tables? This is 

21 unknown to anybody at this table and unlikely to be known 

22 to anybody at this table. 

23 So, 10,000 years, my first point, is a 

24 completely unsuitable time frame for near-surface 

25 disposal. It is difficult enough for deep geologic 

26 disposal but should be ruled out completely for 
 30 

1 near-surface disposal. 

2 So, what should be done? I have a complex 

3 set of suggestions that go together. I believe your 

4 100-year institutional rule is good, 500-year barrier 

5 is also good. This is time that humanity has some 

6 experience with, unlike 10,000 years. Even the 

7 Catholic church has been around for a small fraction of 

8 that time. 

9 Now, one can say that radionuclides that 

10 decay substantially within 500 years, like cesium-137, 

11 strontium-90, and so on, one can calculate their doses 

12 and their migration within that kind of time frame and 

13 arrive at some reasonable idea of future impact. 

14 For longer radionuclides and radionuclides 

15 that build up like depleted uranium, recycled uranium, 

16 I have suggested that a kind of Gedanken experiment be 

17 done. Were Einstein in charge, he might do that. I 

18 suggest that the peak radionuclide inventory be 

19 considered to be in the water and dose evaluated. And 

20 that kind of procedure should be used to set curie limits 

21 of what can be disposed of in shallow land burial. So, 

22 in addition to concentration limits, I think curie 

23 limits are required. I believe, in line with your 

24 institutional control period, that a long-lived 

25 radionuclide should be defined as one with a half-life 

26 of greater than ten years. So, all of these suggestions 
 31 

1 go together with a period of performance being defined 

2 as 500 years but with very strict curie limits being 

3 placed and obviously, you would rule out a long-lived 

4 radionuclides and large quantities of depleted uranium. 

5 Specifically, I would remove the word 

6 transuranic from Table 1 in 10 CFR 61.55. That would 

7 solve a lot of problems. It would include all the 

8 uranium isotopes of alpha-emitting isotopes. It would 

9 include others, too. 

10 There are a number of specifics. I am not 

11 going to go through them. Next slide, yes -- no. Go 

12 back to the previous slide. Next slide. I think you 

13 skipped one. It doesn't matter. 

14 There is one very important point I want to 

15 make in regard to 10 CFR 61.41. It is said that you are 

16 eliminating organ doses and going to equivalent doses 

17 because you're modernizing the science. This is 

18 completely false. It is a disingenuous and sophist 

19 argument. The basis of internal dosimetry remains 

20 organ doses. To calculate equivalent doses, you need 

21 organ weighting factors. Organ weighting factors 

22 average men, women, children. They are rather 

23 arbitrary. Today, gonads are important. Tomorrow, 

24 breasts are more important. So, you don't need this 

25 mediating factor. I suggest that 10 CFR 61.41, in order 

26 to modernize the science, go to committed organ doses 
 32 

1 alone and limit them to 25 millirem and include a 

2 sublimit for drinking water and incorporate the 

3 drinking water rule. 

4 I do think that the NRC should tell the 

5 public why modernizing the science requires the 

6 inclusion of weighting factors and elimination of organ 

7 doses, when organ doses remain the basis of modern 

8 internal dosimetry. In fact, the government's entire 

9 compensation program of nuclear weapons workers worth 

10 billions of dollars is based entirely on organ doses and 

11 the cancer risk is not based on the equivalent dose. 

12 So, one arm of the government is doing something that 

13 would relax standards in relation to actinides and 

14 strontium-90, sometimes by an order of magnitude or 

15 more. This, I think, is completely unacceptable. I 

16 have made this point before and never received even the 

17 suggestion of a satisfactory answer why organ doses are 

18 not the basis of modern internal dosimetry. They are 

19 in FGR-13. ICRP-103 has said that individual doses 

20 should not be calculated on equivalent dose basis and 

21 yet, the NRC and the EPA is proceeding along these lines. 

22 I suggest I have given you specific 

23 language for -- I won't read it, since I don't have a 

24 lot of time -- for 10 CFR 61.41. But basically, organ 

25 doses should be limited to 25 millirem and incorporate 

26 drinking water rules. 
 33 

1 I would like to make a point about an 

2 intruder. I did go and look up the definition of 

3 intruder in the dictionary, a number of dictionaries. 

4 Intruder means somebody who is there in an unauthorized 

5 basis, usually with criminal intent. When you have no 

6 more site control, no more barriers, there are no 

7 intruders. There are only members of the public. You 

8 are calling people -- after your barriers go down, you 

9 are calling people who go onto the site as intruders, 

10 even if they may be farmers. You are calling people in 

11 their own country intruders in their own country because 

12 you have no more site control. That is on the face of 

13 it, rather ridiculous, I would say. 

14 Intruders within 500 years? Yes. So, if 

15 you want to say intruders may get a higher dose with 500 

16 years, okay. But after 500 years, they are only members 

17 of the public and 61.41 should apply, today's 61.41 

18 titled in the manner I have suggested. 

19 The implication that what I have said for 

20 GTCC waste are that basically you need deep geologic 

21 disposal with a rule like that for deep geologic 

22 disposal. We have 40 CFR 191. It would need to be 

23 modified somewhat to be based on organ doses. I have 

24 given you a catalogue for my comments on the GTCC Draft 

25 EIS, which contains there are a lot of other wastes like 

26 GTCC. And, basically, I think the DOE wastes that are 
 34 

1 like that and NRC wastes should be managed together, 

2 possibly in one separate repository that should be 

3 considered. It is quite important to do that, both for 

4 economic and environmental reasons. We don't want this 

5 stuff to be mixed up with spent fuel. It would be very 

6 expensive and spent fuel is kind of stuck. 

7 So, I have, I think, given you a fairly 

8 coherent body of recommendations, at least in my view, 

9 and if it is not coherent to you, I would certainly like 

10 to hear from you so I may correct myself in public. 

11 CHAIRMAN BURNS: Thank you, Dr. Makhijani. 

12 We will open now for questions and 

13 Commissioner Ostendorff will start today. 

14 COMMISSIONER OSTENDORFF: Thank you, 

15 Chairman. Thank you all for being here. As others 

16 have said on the Commission, this is a complex set of 

17 topics, a lot of moving parts, a lot of interfaces with 

18 various technical, and policy, and, perhaps, legal 

19 issues. I will steer clear of legal issues in my 

20 comment and questions today. I will stay with 

21 technical and policy-level questions for this group. 

22 Let me start out with Ms. Schleuter. I 

23 will ask you a question and I will also ask others if 

24 they want to respond or provide any perspective. 

25 With respect to the State of Texas having 

26 the authority under Option 2, if the Commission decides 
 35 

1 that, you mentioned -- you discussed the benefits of 

2 having Texas proceed down the Option 2 path but you also 

3 briefly mentioned there could be, maybe I implied it 

4 from your comments, some challenges. But are there 

5 challenges if the Commission decides to have Texas 

6 license the facility? 

7 MS. SCHLUETER: At this time, I am not 

8 aware of specific challenges. But remember, I am 

9 basically operating off of the information that is in 

10 the SECY paper. So, I trust that there has been some 

11 dialogue between NRC, DOE, State of Texas and so forth, 

12 that we haven't been privy to. This is part of the 

13 reason that we suggest a public stakeholder meeting be 

14 held at the appropriate time. No rush, obviously. 

15 And I trust that there are discussions that 

16 have taken place between yourself and, obviously your 

17 Office of the General Counsel, which is not going to be 

18 public. 

19 COMMISSIONER OSTENDORFF: Yes, I am not 

20 talking about legal challenges. 

21 MS. SCHLUETER: Right, technically, no. 

22 COMMISSIONER OSTENDORFF: I'm putting 

23 that to the side. 

24 MS. SCHLUETER: Yes, technically, I would 

25 say no, I am not aware of any issues that would be 

26 specific technical challenges, if you will. 
 36 

1 COMMISSIONER OSTENDORFF: Does any other 

2 member of the panel want to comment on that or have any 

3 thoughts? 

4 DR. MAKHIJANI: Yes, when we commented 

5 during the licensing of the enrichment facility in New 

6 Mexico, we did a specific calculation in regard to the 

7 WCS site in Texas, for which I have never received an 

8 adequate response from anyone, WCS, or the NRC, or the 

9 licensing board. 

10 We showed that very small changes in the 

11 assumptions about the erosion rate -- 

12 COMMISSIONER OSTENDORFF: No, I want to 

13 make sure -- my question is not necessarily a technical 

14 question for geology but as far as the challenge for the 

15 State of Texas, as opposed to the NRC conducting the 

16 licensing. I just wanted to make sure that -- 

17 DR. MAKHIJANI: Well, let me start at the 

18 end of my point, then. During my time in which I 

19 studied, intervened in that case, and subsequently in 

20 the intervention that I made here, and to the State of 

21 Utah and also in Texas, not to the State of Texas, I found 

22 that the NRC oversight of its Agreement States was 

23 sorely lacking. I testified under oath at that time, 

24 in 2004, I think, that one of the documents that had been 

25 used to license the site in Utah contained numbers that 

26 would dispose of uranium for greater than the weight of 
 37 

1 the earth. I complained about this a number of times. 

2 I filed an official intervention through a local group 

3 to DRC. I spoke about it personally with 

4 commissioners, including the former chairman. And 

5 have been dismissed. The document is no longer in use. 

6 How did it come to be in use? How did it come -- how 

7 is it that the state could have licensed a site based 

8 on a document that contained egregious and 

9 scientifically incredible results? 

10 And even though I raised it here and in 

11 Utah, I found that on neither side, neither in the state 

12 nor the federal level, was there any serious 

13 investigation done of how this came to be. 

14 So, I think leaving it even more to the 

15 state for GTCC waste is entirely inappropriate. 

16 COMMISSIONER OSTENDORFF: Thank you for 

17 the response. Do others want to respond to this 

18 question? 

19 MR. KIRK: Yes, my only comment would be I 

20 thought this through quite a bit and my thought would 

21 be if we had to build a disposal facility just for 

22 commercial or comingled commercial waste, GTCC, and we 

23 had to build that facility just for it, now you would 

24 need to dispose of it deeply in order to protect the 

25 intruder. And our thought would be that the NRC would 

26 license this disposal facility, you would place the 
 38 

1 waste as deep down as you could in your disposal facility 

2 maybe at depths greater than 30 meters, then you would 

3 have a vast open space. And what else could you put in 

4 that facility? Would you put in just Class-A, B, and 

5 C waste that an Agreement State would then regulate? 

6 And you would sort of set yourself up into a scenario 

7 in which the NRC licensed a disposal of GTCC but then 

8 the Agreement States also have responsibilities for 

9 Class A, B, and C. And let's give them the assumptions 

10 of how we dispose of the waste today. 

11 So, that was a lot of my point about 

12 efficiencies in regulatory space. 

13 COMMISSIONER OSTENDORFF: So, just to make 

14 sure that I understand your point there. If the NRC, 

15 under Option 1, would license such a facility, would 

16 that necessarily require a separate physical construct 

17 facility within your facility to handle this waste? 

18 MR. KIRK: My thoughts are right where I 

19 stand today, I think you would. I don't know how else 

20 you would have it licensed so you only dispose of greater 

21 than Class-C waste under a Part 61 license that the NRC 

22 had. And then yet you had other waste streams that you 

23 have all already disposed of at our existing facilities. 

24 And I don't quite get how that would work. 

25 COMMISSIONER OSTENDORFF: Okay, so then 

26 let me stay with you, Mr. Kirk, just for a moment there. 
 39 

1 Aside from that example that you have provided, what 

2 other impacts on Waste Control Specialists does the 

3 commission decision on the SECY paper have for your 

4 organization, Option 1 or Option 2? Now, you have given 

5 us one example. Are there other examples you would want 

6 to articulate to the commission? 

7 MR. KIRK: Well, the other point I would 

8 make is that when it comes to the volumes of greater than 

9 Class-C waste, it is very small volumes. It is high 

10 activity but small volumes. So, the question is, would 

11 we take such an effort only to dispose of commercial or 

12 comingled GTCC waste in a separate facility? Would 

13 that be worth it just for such a small volume of waste? 

14 COMMISSIONER OSTENDORFF: So just from a 

15 business standpoint. Is that what you are saying? 

16 MR. KIRK: And also just the efforts of 

17 going through the licensing process. You know you have 

18 to prepare your license application, you submit it and 

19 an environmental impact statement is performed. They 

20 are expensive. And then you go through the licensing 

21 review process that takes you years to complete. 

22 Whereas, if we could amend our existing license today 

23 and where the NRC and an Agreement State could 

24 collaborate on the technical basis and jointly sort of 

25 review the performance assessment, I think that is a 

26 much more efficient way to handle things but it also 
 40 

1 ensures that the NRC has their roles and 

2 responsibilities to look at the safety basis that goes 

3 behind those decisions. 

4 COMMISSIONER OSTENDORFF: Okay. I want 

5 to provide -- I'm going to stop right there just for a 

6 moment. Do others want to respond to Mr. Kirk's comment 

7 there? Because I think this is a very key part of the 

8 Commission understanding of what is before us here in 

9 the SECY paper. 

10 DR. MAKHIJANI: Briefly, Commissioner, I 

11 think that both Option 1 and Option 2 should be rejected, 

12 obviously, because I am for deep disposal of GTCC and 

13 other waste like it. Thank you. 

14 COMMISSIONER OSTENDORFF: Other comments 

15 on Mr. Kirk's response or Dr. Makhijani's response? 

16 Okay. 

17 MR. KALINOWSKI: I am definitely not a 

18 policy or a political-type person. I think if there is 

19 a technical basis for being able to safely dispose of 

20 the material, and regardless of the facility, then it 

21 should be implemented and whatever policy mechanism you 

22 need to employ to let it be done efficiently should be 

23 used. 

24 COMMISSIONER OSTENDORFF: Okay, let me ask 

25 Ms. Schleuter this comment because I think the notion 

26 of a carved-out greater than Class-C waste facility 
 41 

1 within a broader facility that Mr. Kirk has raised is 

2 important for us to understand the implications of that. 

3 So, do you have anything further you want to say, other 

4 perspectives from industry on that? 

5 MS. SCHLUETER: No. I think just to build 

6 on what has been said, I mean as you know, under Option 

7 1 or 2, which the staff has developed, I mean either way, 

8 Waste Control Specialists site in Texas is the site 

9 which is being considered for permanent disposal of the 

10 waste. So, it is really just then who regulates it. 

11 And the staff has made a case, I think, in 

12 the paper very well that having the state continue to 

13 regulate all aspects of waste disposal in Andrews County 

14 is the most efficient way to go, for a whole host of 

15 reasons. The staff clearly points out that for the NRC 

16 to take on that role, you are talking about a significant 

17 investment of resources. That is pretty difficult to 

18 justify, from my perspective, when Texas has the program 

19 in place, technical expertise. NRC has an oversight 

20 role. They are already overseeing the program, they 

21 will continue to do so. So, why would the NRC staff then 

22 take on that huge burden of a steep learning curve for 

23 becoming familiar with a portion, again, a portion of 

24 the site and having two regulators on-site, which could 

25 confusing for any licensee? 

26 So, in our mind, it was just based on the 
 42 

1 paper alone, a pretty clear, obvious best choice in 

2 Option 2, from a strictly resource perspective and 

3 gaining and building on the experience of the Texas 

4 regulator in this case. 

5 COMMISSIONER OSTENDORFF: Okay, my time is 

6 up. Thank you all. Thank you, Chairman. 

7 CHAIRMAN BURNS: Thank you, Commissioner. 

8 Commissioner Baran. 

9 COMMISSIONER BARAN: Thanks. Thank you 

10 all for your presentations. It has been a good 

11 discussion, so far. 

12 Mr. Kirk, I wanted to follow up on your 

13 response to Commissioner Ostendorff's question, which 

14 I thought was a very good one, just the basic question 

15 about kind of the reasons why, from your point of view, 

16 from WCS's point of view, would make more sense for Texas 

17 to license a GTCC waste cell versus NRC doing that. 

18 You expressed your concern that if NRC is 

19 the licensing agency, then WCS would need a separate NRC 

20 license GTCC disposal cell, instead of being able to 

21 dispose of GTCC waste in its existing or WCS's existing 

22 federal waste disposal facility cell. 

23 Do you think there is a clear relationship 

24 between who does the licensing, which agency does the 

25 licensing and whether WCS will need a separate GTCC 

26 cell? I mean couldn't NRC decide that disposal in the 
 43 

1 existing cell would be adequate and couldn't Texas 

2 decide that disposal in the existing cell wouldn't be 

3 adequate? 

4 MR. KIRK: Yes, I think they could do that. 

5 And my thought is we don't know what the technical 

6 requirements are now, what the NRC is thinking from a 

7 technical standpoint. So, it is hard to envision all 

8 of the different scenarios. 

9 Where I stand today is my thought was we 

10 would have a separate disposal facility just for the 

11 GTCC and it would be a very small volume and we would 

12 not want to comingle the other types of waste that we 

13 receive from the Department of Energy at our federal 

14 waste disposal facility. That was my thought. But we 

15 haven't seen the technical requirements so, it is hard 

16 to answer that question. 

17 I mean I guess if what you are getting at 

18 is if you place all the GTCC waste that you have at the 

19 base of your disposal facility, and that is with the NRC 

20 license, I guess that would have somewhat of a footprint 

21 on it but other waste would go on top of it. There would 

22 be other waste that would be adjacent to it that the 

23 State of Texas would also have been regulated and 

24 authorized its disposal. So, for just the clear lines 

25 of demarcation, my thought would be we would have a 

26 single cell. But now again, these are new concepts that 
 44 

1 we are just now starting to deliberate and understand 

2 ourselves. 

3 COMMISSIONER BARAN: Yes, it is 

4 preliminary so it is hard to know exactly how it would 

5 look. 

6 MR. KIRK: Exactly. 

7 COMMISSIONER BARAN: So, I take it that one 

8 concern I am hearing is the idea of having two regulators 

9 at one site and that could be confusing or even two 

10 regulators on one cell and the problems that might 

11 cause. 

12 Let me ask kind of a related but coming at 

13 it in a slightly different way, which is are we going 

14 to have problems or is the process going to be 

15 unnecessarily complicated if we have two regulators 

16 involved in the licensing or approval of a GTCC cell? 

17 So, NRC regulations, as you know, and 

18 probably everyone on the panel knows, establish a 

19 presumption that GTCC waste will be disposed of in a deep 

20 geologic repository. But the regulations leave open 

21 the door to intermediate depth disposal, if the 

22 Commission approves it. And so, if Texas were to handle 

23 the licensing of a GTCC disposal cell, the Commission, 

24 NRC, would still need to approve any non-repository 

25 proposal. 

26 Are you concerned -- and maybe start with 
 45 

1 you but others on the panel could answer. Are you 

2 concerned that basically this essentially would create 

3 kind of a two-step licensing process that involves two 

4 different agencies; Texas would be the primary 

5 licensing entity but NRC would still have to review 

6 everything to satisfy itself that the alternative being 

7 proposed is an adequate alternative to deep geologic 

8 repository? 

9 MR. KIRK: Let me see if I can answer your 

10 question. My thought is that with Texas, as an 

11 Agreement State and the NRC could work in a 

12 collaborative fashion. NRC could carry out its roles 

13 in licensing the facilities through the vehicle in the 

14 Atomic Energy Act, where Agreement States and NRC can 

15 work together collaboratively for the NRC to carry out 

16 its licensing functions and responsibilities. 

17 So, it was my thought that the NRC would 

18 still carry out a licensing role as part of the review 

19 but Texas would be the licensing authority and it would 

20 be an amendment to our existing license as opposed to 

21 a brand new license that would be set apart from the 

22 existing license that we have with the State of Texas 

23 today. 

24 COMMISSIONER BARAN: Okay and I know it is 

25 not really fair to ask you to outline what you think the 

26 NRC process would be. We would have to figure that out 
 46 

1 here. But what are you -- you have given us a lot of 

2 thought, obviously, and you are trying to think through 

3 the different possibilities and you talked a little bit 

4 about how you are envisioning what this would look like. 

5 If Texas did the licensing but NRC still has 

6 its approval role, at what point in the process do you 

7 think would weigh in or would you expect NRC to weigh 

8 in? I mean would the licensing essentially have to be 

9 complete and then it goes to NRC and NRC says yes, that 

10 looks okay to us, it is not a deep geologic repository 

11 but it is safe. Or does it happen earlier than that? 

12 MR. KIRK: My thought would be there would 

13 be early deliberations between Texas and the NRC. But 

14 the role of the NRC, at least I think they would want 

15 to look at is the technical basis that underpins the 

16 decision. Now, can you dispose of GTC and if so, how 

17 much? And that is based on the performance assessment. 

18 So, the way I envisioned it, we would submit 

19 a license amendment to the State of Texas, like we do 

20 today. The NRC would have a role in the review of that 

21 performance assessment and the determination of any 

22 limits that would be established. And then once those 

23 limits were established and that process was defined, 

24 the license could be issued by the State of Texas but 

25 it would have been done so in a collaborative fashion 

26 with the NRC as envisioned under the Atomic Energy Act. 
 47 

1 COMMISSIONER BARAN: Okay, thanks. 

2 That's helpful. 

3 Dr. Makhijani, let me ask you. I know you 

4 expressed your view that all GTCC waste should be 

5 disposed of in a deep, geologic repository. If WCS, 

6 though, submits an application for intermediate depth 

7 disposal or, I think, Mr. Kirk called it enhanced, 

8 near-surface disposal, if we or Texas were to get such 

9 an application, do you have a view about whether NRC 

10 should do the licensing or Texas Commission on 

11 Environmental Quality should do the licensing? 

12 DR. MAKHIJANI: Well, let me agree with Mr. 

13 Kirk on one thing, what he just said. You need to decide 

14 early whether there is a technical basis for this. If 

15 you take Dr. Burns seriously and just the one fact that 

16 Death Valley was under 1,000 feet of water 10,000 years 

17 ago, out of the starting gate, there is no technical 

18 basis. That kind of thinking is the foundation of my 

19 recommendation. So, there is no technical basis. NRC 

20 should early rule it out. 

21 If you don't rule it out, at least you 

22 should respect Dr. Burns and I would like to find out 

23 what you exactly mean to say to him. With specific 

24 reference to the WCS site, is it going to be under five 

25 feet of water, 50 feet of water, no water? Is it going 

26 to be in howling desert winds that will erode everything 
 48 

1 away? It is certainly possible. We are being told 

2 extremes of climate. 

3 So, I agree. You should decide on the 

4 technical basis. You have been considering it for a 

5 while, though. What I would say is that you haven't 

6 done a very good job. It is that you have ruled out a 

7 lot of very good advice you have already gotten in favor 

8 of expediency. Not you, as the Commission, but 

9 certainly as the staff. Because I know the Commission 

10 with due respect, pardon my saying you, saying 

11 institutionally to the staff, because it has been very 

12 frustrating over a long period of time for two decades 

13 now, actually, more than two decades, I think. 

14 And so, I would say yes, consider the 

15 technical basis. I would say if you revisit what the 

16 staff has done and presented to you, it hadn't done a 

17 very good job. So, decide this technical basis before 

18 it gets to the point of whether you are going to license 

19 or Texas is going to license because there isn't a basis 

20 to do it. There isn't a physical basis to it. 

21 Mr. Kalinowski said if there is a technical 

22 basis, go ahead. How do you deal with the fact that no 

23 performance assessment can deal with the idea that Death 

24 Valley was under 1,000 feet of water 10,000 years ago, 

25 and we are talking about 10,000 years? I am actually 

26 saying tighten, shorten the period of performance but 
 49 

1 do it properly. 

2 COMMISSIONER BARAN: So your comment, as I 

3 understand it, is largely focused on site conditions and 

4 our ability to predict or not predict what those are 

5 going to be out into the future, which I understand. 

6 Talk a little bit about, if you will, Mr. 

7 Kirk's points about features of the facility itself. 

8 Does any of that change your view when he describes 

9 modular concrete canisters and all the specifics of the 

10 facility, do you credit any of that? And does it lead 

11 you to believe that there is any GTCC waste at all that 

12 could be suitable for disposal on a site like that? 

13 DR. MAKHIJANI: Well GTCC waste is 

14 generally long-lived. So, I would say yes, what WCS is 

15 doing in terms of the photos that I have seen here and 

16 other things that I have seen described, good for 

17 hundreds of years. So, I didn't say exclude all 

18 strontium-90 from near-surface disposal. I didn't say 

19 that. Quite high concentrations already allowed under 

20 Class-C. They are not nontrivial concentrations, 

21 thousands of nanocuries per gram, if I remember 

22 correctly. 

23 So, I don't object to that because I do see 

24 a substantial of investment and care is taken to make 

25 those canisters and it is better in an arid environment. 

26 The experience with wet environments has been very bad, 
 50 

1 generally. And so this is an improvement. But we 

2 cannot use this improvement of what we see today to 

3 negate the fact that these are very long-lived wastes 

4 and, basically, we are benefitting and we are dumping 

5 on our children -- well, children's children, future 

6 generations. And no structure that looks very robust 

7 today, if you can't even model or say what the conditions 

8 are going to be -- do we know how howling the winds are 

9 going to be in Texas and how much erosion there is going 

10 to be, followed by extreme rainfall and storms and 

11 hurricanes? 

12 So, if we can't say that, how can we say 

13 whether these things are robust or not if we can't define 

14 the conditions under which we are requiring them to be 

15 robust? In a few hundred years, okay. 

16 COMMISSIONER BARAN: Great, thank you. 

17 CHAIRMAN BURNS: Thank you, Commissioner. 

18 Again, I thank everyone for their presentations. I 

19 think as Commissioner Svinicki said at the opening, I 

20 think this is a good opportunity for us to sort of start 

21 our deliberation and evaluation on this area and I will 

22 be the first one to confess for me that I am hardly at 

23 the deep geologic level in terms of my understanding of 

24 and barely near-surface. I will try but it is helpful 

25 to hear from all of you this morning. 

26 I just have a question for Ms. Schleuter. 
 51 

1 What I heard in your presentation that there are some 

2 other moving parts related to this issue beyond this, 

3 the question of whether the Option 1 or Option 2 that 

4 is in the staff paper. And if you could elaborate more. 

5 I think you were talking about in terms of the pending 

6 Part 61 rule, some of the questions on the waste 

7 classification tables. But could you tell me a little 

8 bit more about that? 

9 MS. SCHLUETER: Yes, actually, I am 

10 beginning to think that the use of the word challenge 

11 in my script was a poor choice. 

12 There is always moving parts and various 

13 pieces of the puzzle. And I think that the community 

14 at large, whether it is the industry, the NRC, the site 

15 operators or what have you, we are just always trying 

16 to look at that complete mosaic and to make sure that 

17 as decisions are made today, that we are thinking 

18 carefully about the implications in the future. 

19 And so the waste classification table is 

20 just an example where within the context of Part 61, 

21 whether you do the limited rule or the large 

22 comprehensive rule, there has been this issue on the 

23 table from time to time as to whether the waste 

24 classification table should change and if so, how should 

25 they change. Should they incorporate more up-to-date 

26 science and so forth. And that is fine. It is just 
 52 

1 another moving part and a factor that I trust the staff, 

2 as well as Texas, has probably given that some thought. 

3 They have got a lot of comments on it in the context of 

4 the earlier rule. It is not a critical path forward. 

5 It is not a bump in the road that cannot be overcome. 

6 It is simply making sure that the staff has thought 

7 through if you do go in the future and make decisions 

8 today and then change those classification tables, 

9 let's just make sure that we have thought through maybe 

10 what the impacts of that rulemaking would do, so that 

11 we don't have unintended consequences and have some sort 

12 of whiplash effect with regard to the way that waste is 

13 characterized and categorized under Part 61. It is an 

14 awareness issue. It is not a critical milestone. 

15 CHAIRMAN BURNS: Okay, would anybody else 

16 like to comment? 

17 Okay, Mr. Kalinowski, one of the points in 

18 your slides is there is a discussion in terms of when 

19 we look at the potential estimates for the volume of this 

20 type of waste that, as there is consideration in going 

21 into the extended life or, basically, second license 

22 renewal or some power reactors that may -- the volume 

23 may be underestimated, could you elaborate on that for 

24 me? 

25 MR. KALINOWSKI: Well, there is two 

26 factors at play with estimating the GTCC waste from the 
 53 

1 activated metals. On the one hand, as I noted, we tend 

2 to overestimate certain radionuclides, just to be 

3 conservative. On the other hand, there are some issues 

4 out there where plants are looking at extending reactor 

5 life beyond 60 years, which is going to generate some 

6 additional components. 

7 The vessel materials, themselves, are 

8 going to reach, essentially, equilibrium. So you 

9 probably aren't going to see volume changes from that 

10 material in itself, but you are going to increase the 

11 amount of material from consumable components and then 

12 also, as I said, there are some new alloys that are being 

13 developed that may increase the amount of GTCC waste, 

14 just because they are actually using quantities of 

15 certain elements that are measurable in the alloy, as 

16 opposed to being a de minimis value. 

17 CHAIRMAN BURNS: Okay, thank you. 

18 And Mr. Kirk, one thing I would appreciate 

19 if you would elaborate on, you talked about in terms of 

20 where things were in let's say about 1981 or in the 

21 context, I think, the early rules. And so the 

22 assessment basis for determination, you know the 

23 acceptability and that we are at a different place 

24 today. Help me again, in terms of understanding what 

25 are the differences. 

26 Are the differences related to the -- I know 
 54 

1 you showed the picture of a disposal at Barnwell versus 

2 the manner in which your company is managing waste. So, 

3 I am just trying to understand what are the differences 

4 that help me understand the path today, why that path 

5 might be a better one, in light of what exists in either 

6 existing requirements or existing assumptions might be. 

7 MR. KIRK: Let me see if I can capture that. 

8 I will start with the waste classification table. 

9 Class-C waste that was defined back in 1981, it has a 

10 bar of such value. And that was based on a set of 

11 assumptions that went into the Draft Environmental 

12 Impact Statement. When the Draft Environmental Impact 

13 Statement was developed back in the late 1970s, they 

14 assumed that that facility was located in a human 

15 environment, primarily on the East Coast. They assumed 

16 that there was a shallow water table that someone could 

17 drink from, that someone could use it to irrigate their 

18 crops. They assumed some agricultural resident was on 

19 the site itself. They consumed the food products. 

20 They drank from the water itself. That was the basis 

21 for how they determined the Class-C limits back in 1981. 

22 If you look at our facility, the Class-C limits wouldn't 

23 be here. It would be much higher because the 

24 assumptions are completely different. At our 

25 facility, the waste is disposed of, it could be at very 

26 deep depths. The only way that someone could actually 
 55 

1 probably receive an exposure would be to drill through 

2 all of those MCCs. And to my understanding, that would 

3 be a very technical challenge for a driller. So, that 

4 is really not feasible but you could envision that 

5 potentially happening. And we own all the mineral 

6 rights at the facility. So, even assuming that someone 

7 could come there at some point in the future, if they 

8 are drilling for oil, there are some institutional 

9 controls that would also -- that would be abated, if you 

10 assumed that its controls were durable controls. 

11 Our water table, it is deep. It is 600 to 

12 800 feet. It is not really -- looking at existing 

13 practices today, people do farm but they farm about ten 

14 miles north of the facility, where they actually 

15 irrigate crops because they use a water source that is 

16 available. There is not a water source available at our 

17 site today that people actually use to irrigate the 

18 crops. 

19 The water that we get today is not from an 

20 on-site drinking water well. It is pumped in from 

21 Eunice. It comes from a completely different portion 

22 of the country. So, those exposure pathways that were 

23 evaluated back in 1981 just don't apply at our facility. 

24 Now, you don't have the drinking water source. You 

25 don't have the irrigation source. It would be very hard 

26 for someone to drill through that waste to bring it to 
 56 

1 the surface. And to me, at least in my mind, that is 

2 the only scenario that one can envision where someone 

3 could be exposed to greater than Class-C waste. And 

4 especially if you put it on the very bottom of the 

5 disposal facility or near the bottom because they would 

6 have to drill through each of those MCCs. As you saw 

7 them, they are very robust. They are dense. It would 

8 be very difficult to drill through those. 

9 CHAIRMAN BURNS: Okay, yes, that helps. 

10 But I think from what I understand from your answer, part 

11 of it is looking -- it may be the question of the location 

12 where you are versus if we did out here in Rockville Pike 

13 in terms of the nature of some of the geology or the 

14 meteorology and those types of issues, the question of 

15 the standards and you have it from your perspective, in 

16 terms of looking at how the licensing goes, there is some 

17 advantages from that. 

18 MR. KIRK: Yes. 

19 CHAIRMAN BURNS: Yes, okay. Dr. 

20 Makhijani, I wanted to touch on one question. I want 

21 to make sure I understood the point you were trying to 

22 make on the question of the intruder versus the member 

23 of the public. And as I say, at one level, I am trying 

24 to understand perhaps the semantic difference and why 

25 it matters, in terms of your comments. Because again, 

26 as you say, often we think of the word intruder in 
 57 

1 pejorative way. I can think of worse ones of 

2 trespasser, or we could probably go on. But I am trying 

3 to understand in the context of your comment in terms 

4 of the protection that needs to be achieved, what the 

5 importance is from your perspective. 

6 DR. MAKHIJANI: Thank you, Chairman Burns. 

7 Well, as you know, in the proposal, the intruder would 

8 be allowed to get a higher dose than 10 CFR 41(a) or (b), 

9 the proposed (a) or (b), and that would be beyond 500 

10 years. And my point simply is once you, yourself, 

11 have said there are no barriers or institutional 

12 controls, by definition, there cannot be an 

13 unauthorized presence, whatever you want call it. If 

14 you call it intruder, okay. 

15 There can only be intruders when it is 

16 unauthorized. So, while there are barriers and while 

17 there are institutional controls, certainly somebody 

18 who goes onto the site when you are telling them in an 

19 effective way, don't go, you would be hurt, then I think 

20 it is okay to say on the sign, you are going to get a 

21 radiation dose more than a member of the public, stay 

22 out. 

23 But after your signs and barriers are gone, 

24 I don't believe you are in a technical or moral position 

25 to tell anyone that they should get a higher dose than 

26 a member of the public is allowed during the period of 
 58 

1 operation or post-closure less than 500 years because 

2 everybody is a member of the public. If you admit 

3 somebody can go on and live on the site, that is a member 

4 of the public. That is not an intruder. 

5 So, I think the whole concept of intruder, 

6 as proposed in the regulation, is wrong. 

7 CHAIRMAN BURNS: Okay, thank you. That 

8 helps. 

9 Commissioner Svinicki. 

10 COMMISSIONER SVINICKI: Well again, I add 

11 my thanks to each of you for participating in today's 

12 meeting. Again, a lot of ground has been covered but 

13 there is two issues that I think pose some unique 

14 complexities, at least that has been my experience as 

15 a commissioner, I think in both cases, answering the 

16 question of how did we get to where we are today, you 

17 have to look at kind of a complex history of a fabric 

18 of different accretion of knowledge and changes over 

19 time. Low-level waste is one of those areas. Medical 

20 use of nuclear technology, Part 35, that is another one, 

21 at least for, personally, is very complicated. So that 

22 when something arises, you kind of have to fasten your 

23 seatbelt because you are really going to have to pour 

24 into it. 

25 I do appreciate some of us are visual. 

26 Visual information helps. So, I do appreciate the 
 59 

1 photos that were provided of WCS. I would note, though, 

2 as someone who has visited there that I think it is very 

3 hard to get a sense of the scale. I did have an 

4 opportunity five or six years ago to go and stand at the 

5 excavation level of one of the disposal cells and I think 

6 the scale is hard to understand from the photo. But 

7 without opining on some of the practices of disposal 

8 throughout our atomic history in this country, which is 

9 the practices of the past were quite different but when 

10 one visits a modern facility like that, I think 

11 visiting, there is, at least for me, no substitute for 

12 that maybe because I am kind of a visual person. 

13 One thing that my colleagues didn't 

14 explore, Ms. Schleuter, and I do appreciate that Ms. 

15 Schleuter and Dr. Makhijani talked about the interfaces 

16 with Part 61 and other things. I think it is very 

17 difficult to discuss these issues. So, one by one, I 

18 think sometimes we stovepipe our thinking and, as an end 

19 result, we don't really look at all dimensions in a way 

20 to help us arrive at the strongest conclusion that we 

21 can. 

22 There was some discussion that the industry 

23 tries to minimize the generation of GTCC waste. I would 

24 like to hear a little bit more. I think it was touched 

25 on in passing that is just some of the modern management 

26 practices. 
 60 

1 And then my other question was at power 

2 plant sites I visited, it seems some of the GTCC is 

3 stored sometimes on the ISFSI pad, the independent spent 

4 fuel storage installation pad and some of it might be 

5 in the pool, if it is activated components. 

6 Could you talk a little bit more about -- 

7 I will limit it because I think that is who we have at 

8 the table for power plant sites -- what are the current 

9 storage methods? And then what are the minimization of 

10 generation methods that are used? 

11 I don't know which of you that is. 

12 MR. KALINOWSKI: I will try and answer the 

13 question. You are correct, some sites will store GTCC 

14 waste, hardware-type materials on their ISFSI pads, 

15 essentially, because there is no place else to put it. 

16 A lot of it will also be stored in the spent 

17 fuel pools. And that is usually the primary, or at 

18 least the initial storage location because when it is 

19 taken out, there is high dose rates. If they have room 

20 in the pool, they just as soon leave it there until they 

21 have some need to move it. The practice of leaving it 

22 in the pool for a certain amount of time also allows 

23 radioactive decay to reduce the dose rates to the point 

24 where it can be more easily handled and placed into dry 

25 storage containers. Dose rates from this material are 

26 primarily driven by cobalt-60, which has a five-year 
 61 

1 half-life. So, if you wait five years to move it to dry 

2 storage, then you have essentially gotten rid of half 

3 of your radiation problem. 

4 Again, the types of materials that they are 

5 storing are going to be limited to some of their more 

6 exposed hardware. In the case of decommissioning 

7 plants, usually it will be the actual core area of the 

8 components, not the fuel but the core structure. 

9 COMMISSIONER SVINICKI: Okay, thank you. 

10 MR. KALINOWSKI: Have I answered your 

11 question? 

12 COMMISSIONER SVINICKI: Yes, thank you. 

13 Ms. Schleuter, are there any broad insights 

14 you could give from the more diverse community on the 

15 fuel cycle facilities or other materials generators? I 

16 know some use sealed sources and so there is probably 

17 tremendous diversity and variety in the other 

18 categories. 

19 MS. SCHLUETER: Absolutely there is. 

20 There is tremendous diversity based on the inventory 

21 type, the form, whether it is stored in vaults. But I 

22 have been assured by the people that I have reached out 

23 to on this topic that most of the time these or all of 

24 the time they are in controlled and secured areas. It 

25 is just the level of intrusion detection and monitoring 

26 and so forth that is commensurate with the security 
 62 

1 program that is licensed by either the NRC or the 

2 Agreement State but it does vary tremendously. 

3 COMMISSIONER SVINICKI: Okay, thank you. 

4 Thank you, Mr. Chairman. 

5 CHAIRMAN BURNS: Thank you. Well thank 

6 you, again, for the presentations. 

7 With this, we will take about a five- or 

8 six-minute break. Thank you. 

9 (Whereupon, the above-entitled matter went 

10 off the record at 10:20 a.m. and resumed at 10:29 a.m.) 

11 CHAIRMAN BURNS: Welcome back, everyone, 

12 and we'll start our second panel when I find my script 

13 here, which I have folded into some of my other papers. 

14 Again, we will have our second panel, 

15 representatives of other federal and state agencies, as 

16 well as the NRC staff. And I'll start this morning by 

17 recognizing Mr. Frank Marcinowski, the Deputy Assistant 

18 Secretary for Waste Management in the Office of 

19 Environmental Management at U.S. Department of Energy, 

20 who will begin our second round of presentations. 

21 Welcome, Mr. Marcinowski. 

22 MR. MARCINOWSKI: Thank you, and thanks 

23 for having me here this morning. We believe this is a 

24 quite important topic that, if you go to my next slide 

25 there, you'll see that the original legislation that 

26 required the Federal Government to take responsibility 
 63 

1 for this -- site of the disposal facility, happened some 

2 30 years ago. 

3 So I think it's time that, you know, we make 

4 some progress on this. And we are working to do that, 

5 and I think we've got a good start here, working with 

6 the NRC staff and with the state of Texas. 

7 The second piece of legislation related to 

8 this was the Energy Policy Act of 2005, which had a 

9 somewhat unusual requirement with regard to NEPA 

10 documents and siting facilities, and that was that after 

11 we published our final EIS, we are now required to submit 

12 a report to Congress before the Department can take any 

13 action in actually siting a facility. 

14 So we've got to submit the report, wait for 

15 a response from Congress giving us direction, before we 

16 can actually take that final step in selecting a 

17 facility. And we have started some discussions with 

18 Congress to try and understand exactly what does that 

19 mean, and, well, I think it's still to be determined. 

20 Next slide, please? 

21 And there are some important drivers here, 

22 too. There is the sealed sources issues, you know, 

23 national security concerns. The Department is making 

24 some forward steps right now in developing a moly-99 

25 program, which is important for medical uses. And as 

26 part of that, there is going to be a waste take-back 
 64 

1 program that the Department is going to have 

2 responsibilities for. Some of those wastes that may be 

3 generated by that are greater-than-Class C waste, or, 

4 you know, greater-than-Class C-like waste that, you 

5 know, the Department would have responsibility for, but 

6 it doesn't fall under NRC regulation. 

7 And not to mention just the forward steps 

8 we need in moving our cleanup program forward, because 

9 we are reaching a point at some of our sites where we 

10 have -- you know, we have been able to deal with a lot 

11 of the easier type of waste forms, and now we're getting 

12 to those that are the more difficult ones to deal with, 

13 and at some of our sites that would fall into a category 

14 that, you know, we have identified as GTCC-like. You 

15 know, it's Department-owned material, not under NRC 

16 regulation, but it has, you know, the same 

17 characteristics that greater-than-Class C waste has, 

18 and we have no disposal path for that. 

19 Next slide, please. 

20 So these are the two types of categories of 

21 waste that we have identified in our EIS, which I just 

22 mentioned the GTCC-like, which is -- or GTCC waste, 

23 which is everything that falls under NRC is commercial 

24 regulated. 

25 And then there is the GTCC-like, which is 

26 the Department's -- it's not a formal waste 
 65 

1 classification, but it has got the same 

2 characteristics. It is a waste form that we wanted to 

3 address as part of this EIS as well. 

4 And probably the most prevalent of the 

5 Department's own waste in this category is the 

6 non-defense transuranic waste, primarily at West 

7 Valley, which just doesn't have a disposal path for. I 

8 mean, it's identical to transuranic waste. It's 

9 just -- it's got this label of non-defense on it, and 

10 it -- you know, it's just something we don't have a -- we 

11 cannot legitimately dispose of at the WIPP facility. 

12 Next slide, please? 

13 And this is the snapshot of the inventory 

14 that we analyzed in the EIS. We estimated, and I think 

15 it was mentioned in the earlier panel, that it was 

16 probably conservatively 12,000 cubic meters of this 

17 waste. And you see the breakdown there that, you know, 

18 most of it is commercially owned or, you know, NRC 

19 regulated, and then there is, you know, a fourth of that 

20 that is DOE owned. 

21 We have separated the waste into two waste 

22 groups as well, and this is primarily, you know, the 

23 activated metals, the decommissioning that comes from 

24 nuclear power plants. It's probably not going to 

25 happen for some time, as I think was mentioned in the 

26 last panel. And so, you know, but I think the more 
 66 

1 immediate concern for us is the -- you know, the 

2 non-defense TRU waste, the sealed sources that 

3 currently don't have a disposal path, any waste that we 

4 are going to, you know, be responsible for from this 

5 take-back program to help with medical isotope issues. 

6 Those are the more immediate concerns as we see them. 

7 As I mentioned, West Valley is the primary 

8 concern for us, but, you know, there still are 

9 significant sealed sources, ones that we have been 

10 recovering actually through our offsite recovery 

11 program, that the Department has been collecting 

12 these -- some of these sources, but -- and we have been 

13 trying to find a way to dispose of them, be able to do 

14 that. 

15 But the other thing that this would 

16 actually -- if we identified a facility, we are -- the 

17 Department is also -- has the ability to cost recover 

18 from this commercial entity that actually owns these 

19 sources. And up until now, we have not been able to do 

20 that. And so it's a benefit to the taxpayer and the 

21 Federal Government if we are able to make some strides 

22 in this and get some programs in place that allow us to 

23 take that step and establish a cost recovery program as 

24 well. 

25 Next slide, please. 

26 These are the alternatives that were 
 67 

1 evaluated as part of the EIS. We looked at the whole 

2 range from no action, geologic repository, boreholes, 

3 trenches, vaults, you know, from shallow land burial to 

4 intermediate disposal to deep geologic disposal. 

5 Broadly, what we found is that for sites that were in 

6 a wetter environment, such as Hanford -- we looked at, 

7 you know, federal facilities as well as some generic 

8 commercial facilities, that Hanford, Idaho, Los Alamos, 

9 Savannah River, sites that were in wetter climate with 

10 a shallow groundwater table, there were potential 

11 impacts that could be seen from those type of 

12 facilities. 

13 When we looked at the Nevada test site or 

14 WIPP, there were no impacts that resulted from our 

15 analysis. And then we looked at commercial disposal 

16 facilities, and it was the same thing. In a human 

17 environment, there are potential impacts. In an arid 

18 environment, we didn't see any impacts from the 

19 analysis. 

20 Now, it is important to note that we didn't 

21 specifically analyze WCS, so that, you know, when 

22 we -- if this were to move forward, we would have to do 

23 some follow-up NEPA action that would specifically 

24 analyze the WCS facility. But the first step is for us 

25 to move forward and finalize the EIS that we currently 

26 have in hand. 
 68 

1 Next slide, please. 

2 And this is just a recap of the analysis. 

3 This is pretty standard for NEPA documents. The range 

4 of things that are evaluated as part of that, as well 

5 as the cumulative impacts. It was done over a 

6 10,000-year period, and I think we covered most of the 

7 other items. 

8 One other item is that for those options 

9 that we looked at in the last slide, we assumed that the 

10 entire waste inventory would go into each of those sites 

11 that were -- or options that were evaluated. So it was 

12 the total waste inventory that was looked at and the 

13 impacts from that. 

14 Next slide, please. 

15 We got significant public comment. As a 

16 result of that, we summarized the comments. I don't 

17 think any were unexpected. And we addressed those in 

18 what will be a response to comment document that will 

19 come out along with that. There are transportation as 

20 well as technical issues. I think we saw some support, 

21 particularly from -- you know, within New Mexico for the 

22 WIPP site. There were the environmentalists who were, 

23 you know, in opposition to that. 

24 But the state and the -- the state regulator 

25 was supportive of that moving forward, and, you know, 

26 we saw a variety of responses depending on, you know, 
 69 

1 where the site was, you know, and then 

2 the -- particularly, it goes back to the -- you know, 

3 the wet versus the dry environment. 

4 And with the folks in the wetter climate 

5 supposing it, and particularly where we had cleanup 

6 sites that were active cleanup sites where we were 

7 supposed to be getting out, they didn't want to put more 

8 curies back into those facilities. 

9 Next slide, please. 

10 And this is just a list of the factors that 

11 were considered to developing a preferred alternative. 

12 There was no preferred alternative in our draft 

13 document, because I don't think we were ready. There 

14 were too many uncertainties at the time. There were 

15 regulatory uncertainties. There were various factors 

16 that I don't think made it a good time for us to come 

17 out with a preferred alternative. 

18 I think in the years since we've put the 

19 draft out, there are -- some of those factors have 

20 cleared up, and so I think we are ready to move forward 

21 with a preferred alternative. I don't -- well, you 

22 know, it hasn't gone through the entire departmental 

23 approval process yet, but from -- you know, I think what 

24 we would like to see is options. 

25 I don't think, you know -- I think, you 

26 know, it may look at, you know, one or more facilities 
 70 

1 that could be used for this. I mean, you've got -- well, 

2 there's transuranic waste there. There's an obvious 

3 location for transuranic waste. But then, you know, 

4 WCS is also a very viable alternative for, you know, 

5 some, if not all, of this waste as well. 

6 So I would expect -- or I would predict that 

7 you might see, you know, multiple options identified as 

8 a preferred alternative when we publish that document. 

9 Next slide, please. 

10 And this is just a process moving forward. 

11 We have prepared the final EIS. We are hoping that in 

12 the next -- hopefully by the end of the year, if not 

13 shortly thereafter, we will publish the final EIS. 

14 Then, I mentioned the report to Congress that we've got 

15 to wait -- got to put together and submit to Congress. 

16 The box has the list of factors that we are supposed to 

17 cover in that. 

18 Then, we await congressional action, and 

19 then hopefully we can move forward with a record of 

20 decision. 

21 I really can't speculate on timetable 

22 there, because the awaiting congressional action, I 

23 just don't know what that entails at this point. 

24 And next slide? And this is my last slide. 

25 So we are currently finalizing the EIS. Like I said, 

26 we're hoping to get that published in the next few 
 71 

1 months, and that -- I think the preferred alternative 

2 will have options in it. It will be multiple 

3 facilities, is my prediction. 

4 That's the end of my presentation. 

5 CHAIRMAN BURNS: Well, thanks very much. 

6 And next we'll have from Charles Maguire, 

7 the Director of the Radioactive Materials Program at the 

8 Texas Commission on Environmental Quality. Welcome 

9 again, Mr. Maguire. 

10 MR. MAGUIRE: Thank you, Chairman, 

11 Commissioners. It is good to be here with you again. 

12 I love the opportunity to leave the 

13 102-degree temperatures in Texas and come. It was so 

14 pleasant last night driving from the airport up here, 

15 and the -- I put the windows down in the cab, just so 

16 I could grab the full benefit of it. It's great to be 

17 here. 

18 We enjoy the opportunity that we have to 

19 brief the Commission. We think there are some very 

20 important policy issues that are at stake, and today is 

21 no exception. And so it is really an honor to be here. 

22 I wanted to compliment NRC staff for their 

23 work on this. I think back in January when we sent our 

24 letter the -- we understood that this was an extremely 

25 complex issue. That may be the all-time 

26 understatement. 
 72 

1 Your staff -- we have worked with them 

2 closely. We consider them colleagues. They treat us 

3 that same way, and that's a real difference in terms of 

4 some of the other work that we do with our federal 

5 partners. But it has been a really good experience for 

6 us, one where we have learned a lot. 

7 I hope, as you have looked into the 

8 materials that they have provided you briefing you for 

9 today's efforts, that you perhaps fully understand why 

10 we felt the need to send you the letter. We looked at 

11 this. We did not think it was -- there was a clear 

12 regulatory pathway, and so we felt like we needed to find 

13 out in order to be able to respond to the rulemaking 

14 petition given to us by WCS. 

15 So second slide, please. 

16 So to make a point of what we are asking, 

17 at the request of TCEQ's commissioners, staff initiated 

18 discussions with NRC headquarter staff related to 

19 potential amendments to Texas rules related to the 

20 disposal of GTCC, GTCC-like, and TRU waste streams, 

21 separate and commingled. 

22 Specifically, we wanted to know if Texas' 

23 role as an agreement state for federal statutes, NRC 

24 rules, and 10 Code of Federal Regulations 61.55, and 

25 Section 274(b) of the 1954 Atomic Energy Act authorized 

26 promulgation of state rules that could license GTCC 
 73 

1 waste streams for disposal. 

2 The second question -- and maybe the real 

3 point of the letter -- is could the state of Texas 

4 authorize the disposal of the waste that DOE currently 

5 holds or is required to take possession of that is GTCC, 

6 GTCC-like material, considering that some of that 

7 material exhibits transuranic characteristics and may 

8 currently be commingled. 

9 So why are we asking that? And I think 

10 maybe from our discussion it is somewhat obvious, but 

11 we were given a rulemaking petition on September 10, 

12 2014. The TCEQ Commissioners considered that petition 

13 where WCS was requesting a change to TCEQ rules to remove 

14 prohibitions against the disposal of GTCC, GTCC-like, 

15 waste streams, including those commingled with 

16 transuranics at the Texas licensed facilities in 

17 Andrews County. 

18 Current Texas law, and in part federal law, 

19 did not establish a clear regulatory pathway with 

20 technical requirements for disposal of all of 

21 those -- GTCC, GTCC-like, and TRU waste streams. 

22 The TCEQ Commissioners requested staff to 

23 initiate discussions with NRC and DOE regarding 

24 potential amendments to the Texas rules, including 

25 definitions that would be consistent with federal and 

26 state law and the regulatory role of Agreement States 
 74 

1 in the disposal of these types of waste. 

2 To engage in a well-informed stakeholder 

3 process, which our rulemaking requires, we really have 

4 to have adequate and clear information from our federal 

5 partners to be able to inform stakeholders adequately 

6 if we were to proceed with a rulemaking. 

7 So where do we go from here? If there is 

8 an established pathway, and that -- I'm sorry, that 

9 would be the fourth side. If there is a pathway 

10 established that would allow Texas to license the 

11 disposal of those waste streams, subject to conditions 

12 set forth by the NRC, then the next step would be for 

13 Texas to conduct its rulemaking process. 

14 Ultimately, the TCEQ Commissioners would 

15 decide if there is to be a change in the Texas rules. 

16 If Texas issues a final rule to remove the current 

17 prohibition, then it is likely that WCS would apply for 

18 a license amendment that would, if approved, allow for 

19 the disposal of these waste streams. 

20 The amendment request would have to be 

21 evaluated and complete our public participation process 

22 prior to the approval or issuance before any 

23 greater-than-Class C, greater-than-Class C-like, or 

24 transuranic waste could be disposed of at the WCS 

25 facility. 

26 The most critical aspects of our evaluation 
 75 

1 of that rule will be TCEQ's review of WCS's performance 

2 assessment prepared by WCS, as well as some other 

3 information required by Part 61. Because the 

4 performance assessment and other requirements in Part 

5 61 are vitally important to establishing and ensuring 

6 a consent-based site for disposal -- and I've made the 

7 point before, it's one thing to get the consent to 

8 establish the site. It is quite another to maintain 

9 that consent. And so the performance assessment 

10 approach is going to be vitally important if we are to 

11 proceed with this. 

12 We are working closing with NRC staff 

13 already. It is really good for us to have access to them 

14 and make them a part of our process. We have had a lot 

15 of dialogue back and forth about the performance 

16 assessment model that WCS has provided. That model is 

17 in a constant state of improvement and revision. 

18 It is probabilistic as well as 

19 deterministic, and so we can look at very adverse 

20 circumstances to look and see how it affects the dose. 

21 And we can then take that sort of in the concept of 

22 defense-in-depth and look at what sort of license 

23 conditions we might need to have to be able to make the 

24 disposal of this work. 

25 I want to be clear: we are not at an 

26 endpoint on that yet. We don't even have an application 
 76 

1 for an amendment to the license. But we are 

2 working -- we are working very closely with NRC staff. 

3 They are extremely capable. 

4 While it's 102 degrees in Texas, I don't 

5 expect any of them to want to move to Texas. But maybe 

6 when the snow is eight inches deep up here, maybe I can 

7 make an offer. But the -- 

8 (Laughter.) 

9 We are working with them. It's good. 

10 It's improving the model. WCS has been very responsive 

11 to our request, and so we are trying to move forward with 

12 that. 

13 Thank you, and I look forward to your 

14 questions. 

15 CHAIRMAN BURNS: Thanks very much, Mr. 

16 Maguire. 

17 We will next hear from the NRC staff. We 

18 have with us today Mike Weber, the Deputy Executive 

19 Director for Materials, Waste, Research, State, Tribal, 

20 and Compliance Programs. Cathy Haney is the Director 

21 of the Office of Nuclear Material Safety and Safeguards. 

22 And Larry Camper, who is the Division Director within 

23 the office. 

24 So, Mike, I'll let you all begin. 

25 MR. WEBER: Good morning, Chairman, 

26 Commissioners. It's a pleasure for the staff to brief 
 77 

1 you this morning on this rather complex topic, and also 

2 to participate on this panel of government agencies with 

3 our partners, Department of Energy and also with the 

4 great state of Texas. 

5 I also want to take this opportunity, 

6 because it's the first public event since yesterday's 

7 announcement, to thank the Commission for promptly and 

8 very effectively appointing Victor McCree as the next 

9 Executive Director for Operations. We look forward to 

10 continuing to work with Victor in his new capacity, and 

11 we will commit to ensure a smooth and effective 

12 transition for that. 

13 I want to start by -- and I'm on Slide 3 of 

14 our presentation -- by beyond just discussing the 

15 purpose of today's briefing, which is to brief the 

16 Commission and public on the analysis and 

17 recommendations that the staff has already shared with 

18 the Commission. 

19 Just to provide a little historical 

20 context, in the 30 years since the Low Level Radioactive 

21 Waste Policy Amendments Act was passed by Congress, we 

22 have come full circle on this issue. At the time, in 

23 the 1980s, there was a concern that the obligation to 

24 dispose of greater-than-Class C waste would be a high 

25 hurdle or a barrier potentially for states moving 

26 forward with the development of their low level 
 78 

1 radioactive waste disposal facilities. 

2 And so the Act reserved this to the Federal 

3 Government as a federal obligation. Hence, the 

4 Department of Energy's involvement in our briefing 

5 today. But despite that 30 years, and all best 

6 intentions, as reflected in the framework, little 

7 progress has been made on providing for disposal 

8 capacity for greater-than-Class C waste. 

9 So now we have a state, the state of Texas, 

10 coming forward and offering to assist the government, 

11 the nation if you will, by posing this question about 

12 the legitimacy of a state regulating the disposal of 

13 greater-than-Class C waste. 

14 So with that brief introduction, I will 

15 turn it over to Cathy Haney, and then Cathy onto Larry. 

16 MS. HANEY: Thanks, Mike. 

17 Good morning, Chairman and Commissioners. 

18 Before I begin my formal remarks, I'd like to make one 

19 note, and that is that this is probably Larry's last 

20 presentation before the Commission from the staff 

21 making a staff presentation. He will be retiring after 

22 34 years of federal service. And while Larry has held 

23 many positions at the Nuclear Regulatory Commission, I 

24 think he will be most remembered for his work in the low 

25 level waste area, in the environmental area, and the 

26 decommissioning and the uranium recovery areas. 
 79 

1 COMMISSIONER SVINICKI: Whether he wants 

2 to or not, he is going to be remembered for that. 

3 (Laughter.) 

4 MS. HANEY: And I would add that his 

5 dedication to the NRC mission and public service has 

6 helped to shape national and international policy in all 

7 the areas that I mentioned, as well as specifically what 

8 we will be discussing today. 

9 So, Larry, thanks for all your work. 

10 MR. CAMPER: Thank you, Cathy. 

11 MS. HANEY: So, with that, I'd like to move 

12 to Slide 5, and I'll begin by focusing on the roles and 

13 responsibilities of greater-than-Class C waste. And 

14 in the Low Level Radioactive Waste Policy Amendments Act 

15 of 1985, or as we'll refer to today as the Amendments 

16 Act, Congress addressed all classes of low level 

17 radioactive waste, including that of the 

18 greater-than-Class C. 

19 The responsibility for the disposal of 

20 greater-than-Class C waste was assigned to the Federal 

21 Government in the Amendments Act, and the Amendments Act 

22 also notes that NRC license generated GTCC waste, quote, 

23 "Shall be disposed of in a facility licensed by the 

24 Nuclear Regulatory Commission." 

25 The Department of Energy has assumed the 

26 responsibility for the disposal of GTCC. 
 80 

1 Next slide, please. 

2 Regulating GTCC waste is addressed in Part 

3 61 and Part 72. Part 72 discusses the regulatory 

4 framework for storage of GTCC, whereas Part 61 provides 

5 a limited regulatory pathway but no technical criteria 

6 for the ultimate disposal of GTCC. 

7 The staff is working on several issues 

8 related to GTCC and transuranic waste disposal, and the 

9 first driver for these activities is the work that we 

10 heard about from the Department of Energy with regards 

11 to the environmental impact statement that we expect to 

12 see soon. 

13 The second driver is a Staff Requirements 

14 Memorandum coming out of a briefing with the Commission 

15 in September of 2014 asking for a paper on the regulatory 

16 history and the disposal challenges. 

17 And then the third driver is the January 30, 

18 2015, letter from the state of Texas that we have heard 

19 about. 

20 So with that brief introduction, I would 

21 like to turn the presentation over to Larry. 

22 MR. CAMPER: Thank you, Cathy. 

23 Good morning, Chairman Burns, 

24 Commissioners. It is a pleasure to be with you, of 

25 course. It is bittersweet. And, Cathy, I thank you 

26 for your comments. I want to focus upon the staff 
 81 

1 activities in this challenging arena. 

2 Next slide, please. 

3 As you know, under Section 274(b) of the 

4 Atomic Energy Act, or AEA, the NRC may relinquish 

5 portions of its AEA-derived authority to states that 

6 have entered into an agreement with our agency that is 

7 Agreement States. 

8 This is the genesis of the Texas question 

9 as to whether an Agreement State can regulate the 

10 disposal of GTCC waste. In 1985, Congress amended the 

11 Low Level Radioactive Waste Policy Act of 1980 -- let's 

12 call this LLRW from now on -- to clarify the 

13 responsibilities of the states versus those of the 

14 Federal Government. 

15 As Cathy cited, the responsibility for the 

16 disposal of GTCC waste was assigned to the Federal 

17 Government in the Amendments Act, and it requires that 

18 commercially generated GTCC waste -- that is, GTCC waste 

19 resulting from activities licensed under the AEA by the 

20 NRC -- shall be disposed of in a facility licensed by 

21 the NRC. 

22 Next slide, please? 

23 Promulgated in 1982, 10 CFR Part 61 deals 

24 with the disposal of LLRW regulated by the NRC or an 

25 Agreement State. It contains certain provisions 

26 related to GTCC disposal. 10 CFR 61.7(b)(v) states 
 82 

1 that there may be some instances in which waste with 

2 radionuclide concentrations greater than permitted for 

3 Class C would be acceptable for near-surface disposal 

4 with special processing or design, and these instances 

5 will be evaluated on a case-by-case basis, and that has 

6 happened. 

7 On May 25, 1989, the Commission amended its 

8 regulations at 10 CFR 61.55(a)(2)(iv). It includes not 

9 only a provision whereby GTCC waste could be disposed 

10 of under Part 61, as approved by the Commission, but also 

11 the Commission's preference to dispose of GTCC waste 

12 under Part 60 or 63, recognizing -- at that time, 

13 recognizing that an intermediate disposal facility was 

14 not sufficiently developed, no intermediate disposal 

15 facility was proposed or planned by the Department of 

16 Energy, and the small volume of GTCC waste would not make 

17 a separate and intermediate facility cost effective. 

18 The Commission chose to take an alternative 

19 and technically conservative approach versus revising 

20 the definition of high level waste as proposed in the 

21 associated advance notice of proposed rulemaking. The 

22 Commission recognized the possibility that the 

23 Department of Energy could choose to develop an 

24 intermediate facility and did not want to foreclose that 

25 option. The proposed rule noticed that such a facility 

26 would be evaluated against the performance objectives 
 83 

1 of Part 61. 

2 In the final analysis, this amendment 

3 specified that more stringent methods are to include 

4 geologic repository disposal, along with an explicit 

5 provision that proposals for other methods of disposal 

6 under Part 61 could be submitted to the Commission for 

7 its approval. 

8 The Statements of Consideration for the 

9 final rule noted that the Commission found no health and 

10 safety basis to limit GTCC disposal to federal 

11 facilities, to the exclusion of other facilities 

12 licensed under the AEA. 

13 Next slide, please. 

14 What you have here is a Venn diagram that 

15 will show the relationship between low level 

16 radioactive waste and transuranic waste. I'll talk 

17 about this in some detail. 

18 Next slide. 

19 While GTCC waste may have a complex 

20 legislative and regulatory history, the issue of 

21 transuranic waste raises even more compelling 

22 questions. Transuranic waste is important because, 

23 according to the Department of Energy, most of the GTCC 

24 waste inventory has significant quantities of 

25 transuranic nuclides. 

26 In response to the complex LLRW disposal 
 84 

1 issue, Congress passed the 1980 LLRW Policy Act, which 

2 defined LLRW was radioactive waste not classified -- not 

3 classified as high level radioactive waste, transuranic 

4 waste, spent nuclear fuel, or byproduct material as 

5 defined in Section 11(a)(2) of the AEA. 

6 As you are aware, LLRW is defined as what 

7 it is not rather than what it is. Therefore, according 

8 to the 1980 LLRW Policy Act, the definition of LLRW 

9 specifically provided that transuranic waste was not 

10 LLRW. 

11 Next slide. 

12 Part 61 defines LLRW consistent with the 

13 1980 LLRW Policy Act. Specifically, in 61.2, LLRW 

14 means radioactive waste, not classified as high level 

15 radioactive waste, transuranic waste, spent nuclear 

16 fuel, or byproduct material as defined in paragraphs 2, 

17 3, and 4 of the definition of byproduct material set 

18 forth in 20.1003 of this chapter. 

19 Therefore, transuranic waste is explicitly 

20 excluded from the definition in Part 61 for low level 

21 radioactive waste. However, provisions describing the 

22 purpose and scope in 10 CFR Part 61.1 do not list 

23 disposal of transuranic waste among the activities 

24 specifically excluded under Part 61. Thus, the scope 

25 and the definition do not align. 

26 Table 1 of the waste classification scheme 
 85 

1 includes concentrations for transuranic nuclides. 

2 Hence, a rulemaking may be needed to address these 

3 misalignments, but we'll discuss this in more detail. 

4 Next slide. 

5 In 1985, the Amendments Act defines low 

6 level radioactive waste, or LLRW, as radioactive waste 

7 not classified as high level radioactive waste, spent 

8 nuclear fuel, or certain byproduct material. As a 

9 result of the Amendments Act, transuranic waste is no 

10 longer excluded from the definition of low level 

11 radioactive waste. 

12 The NRC never made a corresponding change 

13 to Part 61, although we could have done so. As a result, 

14 the definition of LLRW in Part 61 does not align with 

15 the Amendments Act of 1985. 

16 Next slide, please. 

17 1988, Congress passed Price-Anderson 

18 Amendments Act, which amended the AEA by adding the 

19 definition of transuranic waste to the AEA, defined as 

20 material contaminated with elements that have an atomic 

21 number greater than 92, including neptunium, plutonium, 

22 americium, and curium, and that are in concentrations 

23 greater than 10 nanocuries per gram, or in such other 

24 concentrations as the NRC may prescribe to protect 

25 public health and safety. 

26 Therefore, the AEA uses 10 nanocuries per 
 86 

1 gram in the definition of transuranic waste, but allows 

2 NRC to change the value as long as it protects public 

3 health and safety. 

4 Next slide. 

5 Consistent with the latter portion of the 

6 AEA changes, and based upon the NRC classification 

7 table, certain LLRW with transuranic nuclides was found 

8 to be suitable for a Part 61 disposal facility. 

9 Specifically, 61.55, in Table 1, alpha-emitting 

10 transuranic nuclides with half-lives greater than five 

11 years, and a concentration that does not exceed 10 

12 nanocuries per gram, are acceptable for disposal as 

13 Class A waste. If they are greater than 10 nanocuries 

14 per gram, but less than 100 nanocuries per gram, they 

15 are suitable for disposal as Class C waste. 

16 The Department of Energy has indicated that 

17 up to 87 percent of the non-defense GTCC waste contains 

18 transuranic nuclides with concentrations greater than 

19 100 nanocuries per gram. Studies have indicated a more 

20 realistic number would likely be lower in percentage 

21 that would contain transuranic nuclides. Regardless 

22 of the precise amount, this is transuranic waste 

23 according to the AEA. 

24 Next slide, please. 

25 So let's turn to the Texas question that 

26 Cathy cited. Staff recently provided you with a 
 87 

1 Commission paper, SECY-0094, 15-0094, addressing NRC's 

2 regulatory history on GTCC waste disposal with a 

3 discussion on the types of GTCC waste streams and 

4 disposal challenges, along with options for a response 

5 to the TCEQ inquiry regarding whether it possesses the 

6 authority to license GTCC and transuranic waste 

7 disposal. 

8 The options are: Option 1, NRC would 

9 license and regulate the receipt and disposal of GTCC 

10 waste and waste control specialists and would pursue 

11 rulemaking to amend Part 61 to address transuranic waste 

12 disposal. 

13 Option 2, the NRC would allow the state of 

14 Texas to license and regulate the disposal of GTCC 

15 waste, and NRC staff would pursue a rulemaking to 

16 address transuranic waste disposal under Part 61. 

17 Option 3, no action. 

18 Next slide. 

19 Under Option 1, the NRC staff would need to 

20 perform a review of the license application, including 

21 the performance assessment prepared by the applicant 

22 and other information required by Part 61. Staff would 

23 also need to develop site-specific technical safety and 

24 security requirements for this waste disposal. 

25 Because licensing GTCC waste disposal 

26 would be a major federal action significantly affecting 
 88 

1 the quality of the human environment, we would need to 

2 prepare an environmental impact statement. After 

3 consideration of the staff recommendations, the 

4 Commission could then make the necessary determinations 

5 to address health and safety of transuranic and GTCC 

6 waste disposal under 10 CFR 61.55(a)(2)(iv), and make 

7 a licensing decision. 

8 Because the NRC would be developing 

9 site-specific safety and security criteria, and license 

10 conditions for the disposal of GTCC and transuranic 

11 waste, we would not need to pursue a rulemaking 

12 necessarily under Option 1. However, the staff 

13 recommends that we would do this to address this issue 

14 generically. 

15 Next slide, please. 

16 Under Option 2, the state of Texas would 

17 authorize the disposal of GTCC waste. However, the 

18 Commission would have to approve a proposal from the 

19 state of Texas to license near-surface disposal of GTCC 

20 waste in accordance with 61.55(a)(2)(iv) again. 

21 The NRC staff would be available to support 

22 the state of Texas in conducting the licensing action, 

23 including developing technical safety and security 

24 criteria, and could conduct a peer review if requested. 

25 Otherwise, the regulation of such disposal would be 

26 reviewed under the Integrated Materials Performance 
 89 

1 Evaluation Program, or IMPEP. 

2 On March 25, 2015, as Mr. Maguire cited, 

3 TCEQ requested the NRC staff to perform a peer review 

4 of a performance assessment model submitted to TCEQ by 

5 waste control specialists on GTCC waste disposal. The 

6 NRC staff has provided limited comments, and TCEQ has 

7 requested continuous engagement on this model. 

8 To generically resolve the issue of 

9 transuranic waste disposal, the NRC would need to 

10 conduct a rulemaking to address transuranic waste 

11 disposal in Part 61 similar to Option Number 1. 

12 Alternatively, the state of Texas could 

13 license the facility for the disposal of GTCC and 

14 GTCC-like waste only. However, this is impractical, 

15 given that approximately 13 percent of the total volume 

16 of GTCC waste is not contaminated with transuranic 

17 nuclides with concentrations greater than 100 

18 nanocuries per gram, and it would not provide a generic 

19 approach. 

20 Next slide, please. 

21 Under Option 3, the Commission could 

22 decline to extend the Part 61 licensing scheme to allow 

23 near-surface disposal of GTCC and transuranic waste at 

24 this time without further development of safety and 

25 security regulatory framework. 

26 The GTCC and transuranic waste streams can 
 90 

1 continue to be safely stored until geologic disposal is 

2 developed for these wastes. The NRC would advise the 

3 state of Texas that the state does not have the authority 

4 to license disposal of GTCC waste or transuranic waste 

5 without Commission approval or further action. 

6 Next slide. 

7 So, in the final analysis, the staff 

8 recommends Option 2 with rulemaking to address the 

9 disposal of GTCC and transuranic waste. The staff's 

10 recommendation would provide a pathway; that is, the 

11 Commission's consideration and direction to address the 

12 jurisdictional question raised by the state of Texas. 

13 The rulemaking, at a minimum, would address 

14 the transuranic waste definition in Part 61, which I 

15 cited as problematic, and offers the benefit of 

16 providing generic regulatory requirements for the 

17 disposal of transuranic waste and perhaps for GTCC 

18 disposal as well. 

19 Additional practical efficiency would be 

20 achieved as Texas has already licensed the waste control 

21 specialist facility for disposal of Class A, B, and C 

22 low level radioactive waste. 

23 That concludes my comments, and we will 

24 await your questions. 

25 MR. WEBER: That concludes the staff's 

26 contribution to this panel, and we are happy to listen 
 91 

1 to your questions and comments. Thanks. 

2 CHAIRMAN BURNS: Thank you all for your 

3 presentations. 

4 Commissioner Ostendorff will lead off with 

5 questioning. 

6 COMMISSIONER OSTENDORFF: Thank you, 

7 Chairman. 

8 Thank you all for your presentations. I 

9 had the privilege years back when I was at DOE to work 

10 with Mr. Marcinowski. And, Frank, it's good to see you 

11 here today. I appreciate your continued service on 

12 dealing with difficult problems. 

13 MR. MARCINOWSKI: My pleasure. 

14 COMMISSIONER OSTENDORFF: Some things 

15 never change. 

16 Let me ask you one question. I appreciated 

17 the overview you provided from the Department of 

18 Energy's perspective of the different types of waste and 

19 the EIS issues. That was very helpful. I think I have 

20 a pretty straightforward question. With respect to the 

21 decision that we have before us, whether the NRC or the 

22 state of Texas would license a waste control specialist 

23 facility for greater-than-Class C waste, does that have 

24 any impact on the Department of Energy or your EIS in 

25 any way as far as a licensing body? 

26 MR. MARCINOWSKI: I don't think it would 
 92 

1 have any impacts on the -- our completion of the EIS. 

2 And, I mean, we have dealt with, you know, multiple 

3 regulators at, you know, many of our sites already, but 

4 they have, you know, regulated for different purposes. 

5 I mean, the state or regulators for the RCRA, you know, 

6 the Federal Government, whether it be EPA or somebody 

7 else, would regulate for the rad portion of things. 

8 So we are kind of used to working in that 

9 environment. I'm not sure how that would apply here, 

10 particularly since we have an agreement with the state 

11 of Texas for who is going to take ownership of that site, 

12 you know, once it's all done. And if we've got 

13 intermingled waste, I mean, we'd have to see how the 

14 lawyers felt about that before I can give you a good 

15 answer. 

16 COMMISSIONER OSTENDORFF: Okay. That's 

17 fair. Thank you. 

18 Mr. Maguire, thank you again for being 

19 here. I think your presence, you know, highlights to 

20 us, reminds us of the importance of the Agreement State 

21 partnership we have with Texas and all of the other 

22 Agreement States. And it's good to see you again. I, 

23 again, appreciated my visit down to your facility back 

24 in February of this year, and I have always been 

25 impressed with the scope and the professionalism of your 

26 organization. So thanks for being here today. 
 93 

1 I think we all agree with your comments 

2 about this being a very complex issue. And I think 

3 where -- I speak for myself -- I think the other 

4 Commissioners as well would probably agree -- that we 

5 appreciate your sending the letter to us when you did, 

6 because I think certainly it put it on our plate, the 

7 staff's plate, and I think you have asked an important 

8 question. It's not something you can answer in 24 

9 hours. So thank you for your proactive work there. 

10 Let me ask you a question. Larry -- I'm 

11 going to come back to Larry later on with questions, but 

12 Larry mentioned, you know, if asked, the NRC staff could 

13 pursue a peer review if the Commission made the decision 

14 to have Texas proceed as a licensing entity here. 

15 Can you speak a little bit about -- or your 

16 initial thoughts on what technical assistance or 

17 particular technical areas might be helpful if the 

18 Commission approved the staff's recommended Option 2? 

19 MR. MAGUIRE: Well, and we have already 

20 started with staff to ask that they peer review a very 

21 draft version of the performance assessment that would 

22 include some GTCC inventories in it. I think that's a 

23 large area is working with the performance assessment 

24 model. 

25 And, again, this model is probabilistic. 

26 We can twist the knobs and punch some buttons and make 
 94 

1 it deterministic. I mean, we can look at -- we can look 

2 at lots and lots and lots of scenarios with that model, 

3 but the key thing is -- is when the model is developed, 

4 that the best possible science undergird those 

5 algorithms and assumptions that are made in putting the 

6 model together. 

7 The NRC staff is very, very, very capable 

8 when it comes to looking at the model development, the 

9 kinds of things that need to be considered when putting 

10 the model together. And so that is a big one. But I 

11 think -- I think as the model develops, and as we learn 

12 to work with the model -- and I think NRC is headed down 

13 a pathway where performance assessment models are going 

14 to be a major component in most waste disposal 

15 decisions. 

16 As we look at that, our view is, as we also 

17 think about the model in terms of defense-in-depth, it 

18 will drive licensing conditions. And so clearly if the 

19 site were only going to have Class A waste, no depleted 

20 uranium, no greater-than-Class C, no B and C waste, the 

21 kind of belts and suspenders that you have to have around 

22 waste disposal are certainly less. They are still 

23 large, but they are certainly less than what they would 

24 have to be as you begin to ramp up what kind of waste 

25 you dispose of. 

26 And I think that's the area where we would 
 95 

1 expect to have lots of integrated conversations with NRC 

2 staff in terms of looking at the kinds of license 

3 conditions, the kinds of requirements that would really 

4 allow us to turn around and say as the state of Texas, 

5 working with our federal colleagues, that we have 

6 applied the best science we have available. 

7 I don't think Texas would want to turn its 

8 back on any source of good science to help it make those 

9 decisions. And so certainly coming to NRC would be a 

10 very active part of the way we see putting together a 

11 license, should we ever get to that point. 

12 COMMISSIONER OSTENDORFF: Thank you. I 

13 appreciate that. 

14 Larry, I want to add my thanks to those of 

15 Cathy Haney's to you for your service. I know when I 

16 first got here we traveled out to WCS and LES back five 

17 years ago, and I participated, along with you, in a 

18 number of waste management symposia and conferences, 

19 and I've seen firsthand the respect that you command 

20 nationally and internationally in the areas that you 

21 have addressed so capably in your position. 

22 And I think you are just a great example for 

23 our entire organization as to technical competence and 

24 professionalism across the board, and I just want to 

25 thank you for all you have done for everyone, not just 

26 the NRC but for the country. 
 96 

1 MR. CAMPER: Thank you. 

2 COMMISSIONER OSTENDORFF: That doesn't 

3 mean you get off without questions. 

4 (Laughter.) 

5 MR. CAMPER: No. I know how that goes. 

6 COMMISSIONER OSTENDORFF: So let me start 

7 out, you know, with the recommended Option 2 before the 

8 Commission. Can you -- you know, if the Commission were 

9 to approve that, can you talk a little bit about what 

10 criteria the NRC staff would use to evaluate the Texas 

11 approach? And Part 2 to that would be, and what, if any, 

12 Commission direction might we want to consider 

13 providing to our staff to address such criteria? 

14 MR. CAMPER: Thank you, Commissioner, for 

15 your comments, and thank you for your question. 

16 I think it's important -- if one looks at 

17 Option 1, or one looks at Option 2, or one looks at Option 

18 3, the question that comes to one's mind always is, is 

19 there a standard? Is there a criteria? And there 

20 would be under any one of these options, but let's talk 

21 about Texas in particular. 

22 The staff would work with Texas to develop 

23 the technical criteria that Texas would need to address 

24 as part of its licensing process. A good place for us 

25 to start is the technical information that is contained 

26 in Enclosure 2 to the SECY that we provided. 
 97 

1 There is a great deal of technical 

2 information in there that Texas could use as a starting 

3 point, and we would work closely with them, assuming 

4 they ask us to do that and we know that they will. 

5 It is also important to understand that if 

6 the Commission decides to approve Option 2, it is only 

7 the first act in the play, if you will. Texas, under 

8 the conditions required by 61.55(a)(iv), (b)(iv), 

9 (2)(iv), require that a proposal be submitted. That 

10 proposal will be multi-faceted. 

11 It is going to identify what are our 

12 technical criteria that's pertinent. It is going to 

13 identify the licensing process. It is going to 

14 identify what hearing process Texas has, because the 

15 Commission has to be positioned to make a decision if 

16 it's comfortable with allowing Texas to proceed to 

17 license the site. So there are many parameters that 

18 will go into that proposal. 

19 Charles, in his comments, emphasized the 

20 performance assessment. The performance assessment is 

21 a key driver. I listened to all of the presentations 

22 today about decisions that were made in 1982 and 1989, 

23 and the world has changed. The operating parameters 

24 for the disposal of low level radioactive waste today 

25 is quite different than was envisioned when previous 

26 Commission decisions were made. 
 98 

1 That performance assessment and what it 

2 identified that that site is able to dispose of will be 

3 paramount. We will work closely with the state of 

4 Texas. We have already started that process to review 

5 that performance assessment, and we will work closely 

6 along the way, so that if we ever get to the point that 

7 Texas comes with a proposal to the Commission, we will 

8 know that that performance assessment passes muster. 

9 COMMISSIONER OSTENDORFF: Thank you. 

10 Mike, did you want to -- 

11 MR. WEBER: Yes. If I could just add, 

12 there are a range of alternatives that would be used to 

13 come up with the siting -- or the criteria. And the 

14 staff would be happy to work with the Commission to put 

15 forward proposals for the Commission to consider. 

16 Ultimately, it will be the Commission's 

17 call on what those criteria should be. So, but we 

18 didn't want to be presumptive in going forward and 

19 developing those criteria until we knew where the 

20 Commission stood on the policy matter. 

21 COMMISSIONER OSTENDORFF: Thanks for that 

22 explanation. Thank you, both. 

23 Thank you, Chairman. 

24 CHAIRMAN BURNS: Thank you. 

25 Commissioner Baran. 

26 COMMISSIONER BARAN: Thanks. 
 99 

1 Mr. Maguire, thanks again for being here. 

2 It's good to see you again. 

3 Let me start with a real -- maybe the only 

4 basic question on this whole topic, which maybe is 

5 obvious, but I just want to confirm, should we interpret 

6 your letter to us to mean that TCEQ would like -- would 

7 prefer to do the licensing rather than NRC, of this 

8 facility? 

9 MR. MAGUIRE: Yes. I would just start by 

10 saying the letter that I sent you is probably the most 

11 difficult letter I have ever had to write, because I had 

12 to ask you if I could without saying that I have already 

13 decided that I want to. And so I -- I drove our 

14 attorneys up the wall, my management up the wall. The 

15 letter was edited more than once, I'll just say that. 

16 (Laughter.) 

17 Probably a couple of order of magnitudes 

18 over that. But it is true, and it would be fair to say, 

19 that if we are going to have greater-than-Class C waste 

20 streams being disposed of in Andrews County, Texas, I 

21 think we would prefer to be the licensing authority. 

22 And for some of the things that have been 

23 mentioned, now we -- saying that, we do have a marvelous 

24 relationship with the Nuclear Regulatory Commission, 

25 and we could see ourselves surviving I think if the 

26 Nuclear Regulatory Commission were to be the licensing 
 100 

1 authority. But there would be a strong preference in 

2 Texas for us to be out in front in terms of that licensing 

3 activity. 

4 There would also be a very strong 

5 preference in Texas that if we are out in front that we 

6 have the full embraced endorsement of the Nuclear 

7 Regulatory Commission with what we are proposing to do. 

8 COMMISSIONER BARAN: Okay. That's very 

9 helpful. Would you have any particular concerns with 

10 NRC doing the licensing? If we opted to go with NRC 

11 doing the licensing, are there concerns you would have 

12 with that? 

13 MR. MAGUIRE: I think the single biggest 

14 thing we would want to talk about is how the disposal 

15 cell was placed, and I think we sort of have a basic 

16 assumption that if greater-than-Class C waste is being 

17 disposed of in a disposal cell, it would need to be on 

18 the bottom of it. 

19 And so we would just have lots of questions 

20 about what is going to go over the top of that, and so 

21 is it -- would it be a sale that had waste in the bottom 

22 and then lots and lots and lots and lots and lots and 

23 lots of sand? You know, another 90 feet of sand on top 

24 of it. 

25 And those would be really, really important 

26 considerations to us. We would be asked, I'm sure, by 
 101 

1 the people that we report to what impact that then would 

2 have on the performance assessment for the site as a 

3 whole. We have a very strong sense of obligation that 

4 the compact facility continue to have not only curie 

5 space and cubic feet available but dose to the public 

6 available for decommissioning of the three nuclear 

7 utilities that are a part of the compact. 

8 So those would be our basic questions. 

9 COMMISSIONER BARAN: Okay. And right 

10 now, as I understand it, your regulations, Texas 

11 regulations, prohibit GTCC being disposed of in Texas, 

12 but there is a proposed rulemaking to eliminate that 

13 prohibition. Is that something -- I know you have your 

14 own hoops to deal with -- or to work with, not deal 

15 with -- work with -- 

16 (Laughter.) 

17 Do you anticipate that Texas would proceed 

18 to lift the prohibition on taking greater-than-Class C 

19 regardless of whether Texas or NRC is the licensing 

20 agency? 

21 MR. MAGUIRE: I think the Commission, in 

22 instructing us to engage NRC and Department of Energy 

23 relative to that rule petition, indicates their 

24 interest in perhaps doing that. I think -- I can't 

25 speak for the Commission because it is strictly their 

26 policy call whether or not to change the rules, but they 
 102 

1 have at least indicated in sending us to engage on it 

2 that they have an interest in it. 

3 COMMISSIONER BARAN: Okay. And so let me 

4 turn to Cathy and Larry for a minute and ask kind of the 

5 equivalent, obvious question, which is it's probably a 

6 little bit unusual to have agency staff say, you know, 

7 "We could license it, or someone else could license it. 

8 Let them license it instead." 

9 Can you just walk us briefly through 

10 why -- why has the staff recommended that Texas do the 

11 licensing here? What are the -- you know, briefly, what 

12 are the key reasons why you think that it would be better 

13 for Texas to license than for NRC to license? 

14 MR. WEBER: It makes sense. 

15 COMMISSIONER BARAN: There it is. Okay. 

16 It makes sense. Can you -- you can jump in here. 

17 MR. CAMPER: Well, it's -- there's a lot of 

18 legal stuff here that we'll avoid. 

19 COMMISSIONER BARAN: Yes. 

20 MR. CAMPER: But after careful 

21 examination, we did reach the conclusion that Texas 

22 could license this. Once we reached that conclusion, 

23 then you begin to trip to things that Mike just alluded 

24 to. It is far more efficient. The resource estimate 

25 that we provided in the paper would be a factor of two 

26 more costly if we did it versus the state of Texas. 
 103 

1 They are intimately familiar with the site 

2 already, and they have a very successful program 

3 currently, and they have already reached out to us for 

4 a very cooperative arrangement to proceed ahead to 

5 develop a proposal, if the Commission goes that way, 

6 that hopefully it ultimately would pass Commission 

7 satisfaction. 

8 COMMISSIONER BARAN: Okay. 

9 MR. CAMPER: So it's more efficient. It 

10 makes more sense. 

11 COMMISSIONER BARAN: Go ahead, Mike. 

12 MR. WEBER: If I could just add to that. At 

13 one point in my career, I was the Chief of the Low Level 

14 Waste Branch in the NRC, in NMSS. And we actually 

15 stopped licensing the Barnwell site, and the Hanford 

16 site, because we found that we were adding little to no 

17 value because the state was doing a very effective job 

18 in ensuring the safety of that facility, and we were 

19 adding cost unnecessarily. 

20 So we ultimately found a way within the 

21 regulatory framework to terminate our licenses in lieu 

22 of the state continuing to be the sole regulator, and 

23 that added a lot of efficiency and effectiveness, 

24 because then we were asking the licensee similar 

25 questions but getting different answers, and, you know, 

26 all those sorts of things. So it was just a more elegant 
 104 

1 solution. 

2 COMMISSIONER BARAN: And are you concerned 

3 at all about -- I asked this question of Mr. Kirk, I 

4 think, on the first panel. That because under our 

5 regulations the Commission would need to approve any 

6 non-repository option, if Texas were the licensing 

7 authority for a WCS proposed cell, we would still need 

8 to sign off on it. 

9 You referred a little bit to this -- to our 

10 review there. Are you concerned that having two 

11 regulators involved in the approval process is going to 

12 unnecessarily complicate things? Do we lose some of 

13 the efficiency we would have gained in having Texas do 

14 it by having a separate NRC approval process? 

15 MR. CAMPER: No. I think -- no, for two 

16 reasons. One, for Texas to proceed to regulate the 

17 disposal of GTCC waste, the Commission will have to 

18 approve that. And the Commission will react to what 

19 will be a comprehensive proposal. Once the Commission 

20 makes that decision, if it did, then Texas proceeds to 

21 regulate. 

22 Under Option Number 1, one of two things is 

23 going to happen. Either a new cell would be built that 

24 we would license, or that portion of the existing cell 

25 that would be used for GTCC waste, that license would 

26 have to be modified to reflect that fact. Under that 
 105 

1 scenario, one could argue that you had two-regulator 

2 problem. But if Texas proceeds to license, we would 

3 oversee Texas' regulation of GTCC waste ongoing under 

4 the IMPEP program, after having worked with them to 

5 develop, hopefully, a successful proposal. 

6 COMMISSIONER BARAN: Okay. Well, let me 

7 ask, Mr. Maguire, in terms of just thinking through, are 

8 there any differences between what your process would 

9 look like if you did it and the process we would have 

10 would look like if we did it, it sounds like what is 

11 contemplated is if Texas does the licensing, it would 

12 be a license amendment. 

13 Are there differences, you know, in the 

14 scope of environmental review, public participation, 

15 hearing rights for stakeholders? Do you guys do the 

16 equivalent of an EIS? Do you do the equivalent of a 

17 safety evaluation report? Would the process look 

18 different if -- depending on who regulates? 

19 MR. MAGUIRE: Well, because of 

20 compatibility requirements that every agreement state 

21 has, our processes would be very, very, very similar. 

22 I will say this. State agencies stand closer to the 

23 flame than federal agencies do, and so the public 

24 participation aspect of our process is much, much more 

25 exposed than it might be for the Nuclear Regulatory 

26 Commission, not that you all's doesn't have a lot of 
 106 

1 public participation, but it is very transparent, it is 

2 very involved, it is long, drawn out, and the public 

3 engages things like this. 

4 MR. WEBER: But you should expect that 

5 there will be differences, differences driven by state 

6 law, a difference, you know, in administrative process, 

7 differences driven by the development of their 

8 regulatory program. So it's not going to be an 

9 identical -- we give the states a lot of flexibility 

10 under the Agreement State program, provided that they 

11 achieve both an adequate level of protection and a 

12 compatible national program. 

13 COMMISSIONER BARAN: Okay. Let me ask our 

14 General Counsel one question, purely an 

15 information-gathering mode type question. 

16 Margie, Section 274(c) of the Atomic Energy 

17 Act states that "The Commission shall retain authority 

18 and responsibility with respect to regulation of the 

19 disposal of such other byproduct, source, or special 

20 nuclear material as the Commission determines by 

21 regulation or order should, because of the hazards or 

22 potential hazards thereof, not be so disposed of without 

23 a license from the Commission." 

24 Do you think it's clear that the Commission 

25 could decide in its discretion to handle the licensing 

26 of a GTCC disposal facility regardless of how we 
 107 

1 interpret Section 3(b)(2) of the Amendments Act? 

2 MS. DOANE: Yes. 

3 COMMISSIONER BARAN: Okay. And that's 

4 all I have. Thank you. 

5 CHAIRMAN BURNS: Okay. Thank you very 

6 much. 

7 Again, before I start with questions, I 

8 appreciate Mr. Maguire's reflections on the weather. 

9 And we are actually -- I think this is unusually nice 

10 right here in Washington this time of year. But I will 

11 just share, I was out in Texas a few weeks ago giving 

12 a presentation in Austin, visiting our regional office 

13 in Arlington, and then had the chance to visit the South 

14 Texas facility. 

15 And one of the nice things we often do is 

16 offer congressional staff or congressional members do 

17 a -- we had a group of about eight go along, and 

18 apparently the feedback I got was they really 

19 appreciated the opportunity to visit the plant with us 

20 and the NRC representatives, but the question came back 

21 to me is why the heck would you have planned this trip 

22 now when it was 100 degrees outside? 

23 So, anyway, they were questioning my 

24 insanity, and I can understand that, but -- a little bit, 

25 but I'm glad we provided some good weather for you here 

26 today. 
 108 

1 A couple of questions. I want to ask Mr. 

2 Marcinowski a question, just make sure my 

3 understanding -- it's been a while since I read the 

4 Energy Policy Amendments Act. But essentially I think 

5 what you're saying -- what the Department is obligated 

6 to do is do this generic environmental impact statement 

7 and essentially deliver it to the Congress. Is that how 

8 I -- 

9 MR. MARCINOWSKI: Well, it's actually a 

10 separate and distinct report that we would have to 

11 produce. 

12 CHAIRMAN BURNS: Oh, okay. 

13 MR. MARCINOWSKI: And that we would, you 

14 know, give to the appropriate committee in Congress, and 

15 wait for them to somehow respond as to whether they agree 

16 with what we are proposing or not. 

17 And in prior discussions with them, they 

18 have indicated that perhaps this could be done by a 

19 simple letter to the Department, or, you know, it 

20 doesn't have to be a complicated process. But we need 

21 to renew those discussions with the Hill. 

22 CHAIRMAN BURNS: Right. And you alluded 

23 to the possibility of a separate statement, but as I 

24 understood that, that would relate to if there was a 

25 particular relationship, you'd say, between the 

26 Department and the WCS site, or I was trying to 
 109 

1 understand what you were getting at in that. 

2 MR. MARCINOWSKI: Oh. We have an 

3 agreement with the state of Texas that when the facility 

4 is closed that the Department would then take ownership 

5 of the site for the long-term management of the 

6 facility. 

7 CHAIRMAN BURNS: Right. 

8 MR. MARCINOWSKI: And so we have an 

9 agreement with them, and I just didn't know how, you 

10 know, any -- that might be impacted if we've got a 

11 separate cell now, or some portion of a cell, that has 

12 got waste regulated by a different entity -- 

13 CHAIRMAN BURNS: Right. 

14 MR. MARCINOWSKI: -- how does that all 

15 work. That's what I was just indicating. 

16 CHAIRMAN BURNS: Okay. Thanks for that 

17 explanation. I think I understand now. 

18 Mr. Maguire, again, welcome. And one of 

19 the things maybe you, I think, touched on in terms of 

20 the public participation process, could you just 

21 generally describe what it takes in Texas, what the 

22 nature of the public engagement is under the Texas law? 

23 MR. MAGUIRE: Sure. So if we got an 

24 amendment application for a WCS for the disposal of 

25 greater-than-Class C waste streams, we would first of 

26 all look at that amendment request administratively. 
 110 

1 And once it was determined that it was administratively 

2 complete, that would go to a public notice, and the 

3 public would have a 30-day comment period. We would 

4 receive comments during that period. 

5 Typically, we do not do anything go respond 

6 to comments based on the administrative complete 

7 notice. But certainly if the public calls something to 

8 our attention in those comments that really affected the 

9 administrative completeness of it, we would want to 

10 address that before moving forward. 

11 Typically, administratively completely 

12 holds up under notice, and we begin our technical 

13 review. And then I can take -- and certainly a project 

14 like this might take a really long time, but the -- we 

15 look at the technical aspects of the license, of course 

16 the performance assessment would review 

17 defense-in-depth. Those things would be a vital part 

18 of that evaluation. But there would need to be other 

19 things, and there would be consideration given to what 

20 sort of license conditions might need to be put in place. 

21 And so toward the end, then, of that 

22 technical review process, we would draft a final 

23 proposed license, and we would share that with 

24 government and with WCS first. And once that has been 

25 shared, then we would -- and depending on what changes 

26 needed to be made, then we would publish a second notice, 
 111 

1 and that second notice would notice what we are -- what 

2 the executive director is proposing as final license. 

3 And, again, there is a comment period. 

4 During both of the comment periods the public can 

5 request public meetings, and they can request a hearing 

6 with our state Office of Administrative Hearings. And 

7 so if there is a request for a public meeting, we hold 

8 those meetings if there is significant public interest, 

9 or if there is an interest on the part of an elected 

10 official. And so we could have a public meeting. 

11 If there is a request for a hearing, we call 

12 that a contested case hearing. Then, once the comment 

13 period is closed, we respond to the comments. There is 

14 another chance given to the public to request a 

15 contested case hearing or an opportunity for them to 

16 withdraw their request, if they chose to do that. 

17 But if there are still standing requests, 

18 the Executive Director cannot issue a contested 

19 license. And so that, then, has to go before our 

20 Commission. The Commission determines whether or not 

21 there is an affected party and a justiciable issue that 

22 could go to the state Office of Administrative Hearings. 

23 If so, then it goes before a judge, 

24 administrative law judge. The agency would put on its 

25 case, the regulated entity would put on its case, and 

26 the public would put on -- the affected parties would 
 112 

1 put on their case. The judge then has a proposal for 

2 decision. He comes back before -- he/she comes back 

3 before the Commission to present their proposal for 

4 decision. 

5 The Commission makes a decision based on 

6 the information provided by the judge, and they can 

7 either deny the license, refer the license back to the 

8 Executive Director, or issue the license. 

9 CHAIRMAN BURNS: Good. Well, thanks for 

10 that thorough explanation. But it is -- good, it is 

11 helpful for -- I think for me in terms of trying to -- in 

12 understanding different processes and procedures, 

13 very -- you know, different, but in many ways similar 

14 to sort of the thorough vetting that -- I know that we 

15 would do. 

16 For the staff, one of the questions I 

17 asked -- and I'm -- I recognize partly this is a 

18 historical issue, but refresh my -- it would be helpful 

19 if you'd refresh my recollection. Larry, you alluded 

20 to changes in one of the sets of amendments -- one of 

21 the Amendments Acts in which it made this change to the 

22 transuranic definition, but not adopt -- it was not 

23 adopted in NRC regulations. 

24 Can you give me some context of why that 

25 hadn't happened earlier? It may well be what was -- you 

26 know, there was no, if you will, burning platform or 
 113 

1 urgency with respect to it. Anything you can to help 

2 with that? 

3 MR. CAMPER: Well, thank you for the 

4 question, Chairman. The transuranic issue is, indeed, 

5 an interesting one to research. You will find back in 

6 the 1970s transuranic waste was disposed of in 

7 near-surface low level waste disposal facilities, 

8 basically in trenches. Along the way, in 1974, the AEC 

9 started a rulemaking that would not have let that 

10 happen. That did not become a final rule. 

11 I suspect that when the 1980 Act was 

12 created, Congress was aware of that, and, therefore, 

13 chose to exclude transuranic waste. Along the way, 

14 there was a lot of discussion about transuranic waste 

15 after that in a 1985 -- particularly, in the >82/'83 

16 timeframe, transuranic waste was looked at. There were 

17 some working groups that took place. In 1985, they 

18 removed that exclusion. 

19 We actually developed a working group that 

20 looked at the changes that were brought about by the 1985 

21 amendment. And in looking back at the work that the 

22 group did, there were a lot of other changes that came 

23 about in the 1985 Act. We focused upon them. We did 

24 not focus at all -- I can't find a word about the 

25 transuranic waste changes. 

26 CHAIRMAN BURNS: Mike? 
 114 

1 MR. WEBER: I think Larry will correct me 

2 if I'm wrong, but the changes that occurred to the Act, 

3 the Atomic Energy Act, on the definition of transuranic 

4 waste worked in conjunction with the WIPP Land 

5 Withdrawal Act. So it was focused on preparation for 

6 that licensing certification process. So it wasn't 

7 viewed at the time as NRC's business. 

8 CHAIRMAN BURNS: Yes. Because the WIPP 

9 is -- of course, is the Environmental Protection Agency. 

10 MR. WEBER: Right. And DOE, and not 

11 involving NRC except with respect to certification of 

12 the transportation packages. 

13 So, also, I would point out that the low 

14 level waste program at the time was really focused on 

15 performance assessment here at the NRC. So we were 

16 working on the Branch Technical Position on performance 

17 assessment and trying to work with our state partners, 

18 because NRC had no licensing responsibility at the time 

19 for low level waste disposal. 

20 So we were in the support mode to the 

21 Agreement States as part of our partnership, to help 

22 them do what they need to do to ensure proper regulation. 

23 CHAIRMAN BURNS: Okay. 

24 MR. CAMPER: Yes. I would add to that, if 

25 I might, Chairman, that if you go back and look, I think 

26 that the staff -- in fact, Paul Lohouse, who was then 
 115 

1 a branch chief for the program, gave a presentation in 

2 1982 where he talked about the fact that we weren't going 

3 to do a separate rulemaking to address transuranic 

4 waste. Rather, we were addressing it within the waste 

5 tables as I cited during my presentation. 

6 I think there was not a recognition there 

7 was going to be as much of it as turned out to be. And, 

8 therefore, it just wasn't on the scope to make that 

9 adjustment. 

10 CHAIRMAN BURNS: Okay. So thanks very 

11 much for that. 

12 Commissioner Svinicki. 

13 COMMISSIONER SVINICKI: Well, I will add 

14 my thanks to the NRC staff for all of the work that was 

15 done, not just those of you at the table but all who 

16 contributed to the paper, which is very comprehensive, 

17 and also to our federal and state partners who are 

18 represented here today. 

19 I think I had -- an issue recently arose in 

20 my office. We were looking at a paragraph I had 

21 written, and I was debating affected versus effected. 

22 I don't know why I find this one grammar rule hard to 

23 remember, but I went in to Alan Frazier, who is on my 

24 staff, who was just the victim that I found, and I said, 

25 "Are you an amateur grammarian?" and he said, "Well, I'm 

26 an engineer, so no." 
 116 

1 (Laughter.) 

2 And I said, "Well, I am an engineer, too, 

3 but, you know, I think what motivates many engineers is 

4 we are problem solvers." And that's why we become 

5 engineers versus becoming eggheads -- I mean, 

6 scientists, is because I think some of us just really 

7 like to tinker with things and problem solve. 

8 This is a complicated national issue or 

9 problem to solve. It has legal, technical, and policy 

10 dimensions. But I just want to credit all of you and 

11 our other presenters. I think there is a spirit of 

12 problem solving. The other complexities, some of which 

13 are very -- just kind of, you know, words and looking 

14 at words and meanings, and that's complicated stuff, 

15 those things will get sorted out eventually. 

16 But at the end of the day, I think there has 

17 been a good spirit of wanting to look to the heart of 

18 the issue and put forward solutions and ideas and 

19 proposals. And I credit the state of Texas for asking 

20 the question -- Commissioner Ostendorff reflected on 

21 that -- and you'd be amazed, if you spend enough time 

22 in Washington, what you find kind of refreshing. It is 

23 refreshing that someone would say, "Well, if we don't 

24 know, let's ask." I'm sorry that the letter was painful 

25 to generate. It's well done, if that's any 

26 compensation to you. And my colleagues have covered, 
 117 

1 as I always expect, a lot of terrain here very ably and 

2 efficiently. 

3 So that allows me to just turn to Larry 

4 Camper now with the remainder of my time. Larry, I also 

5 want to join my colleagues in commending you for your 

6 long service here. These are -- kind of these 

7 departures from NRC are the unpleasant things, not that 

8 we don't wish people well. We do. It's well-earned, 

9 whatever it is you desire to do in the next phase of your 

10 working life or perhaps just to have some recreation and 

11 time with family. It is very well-earned, and so I 

12 don't begrudge you any of that. 

13 I also have gone to conferences on the 

14 subject matter where you are very expert and seen and 

15 witnessed the same thing, the tremendous regard and 

16 esteem you are held in nationally certainly, 

17 internationally as well. And I remember thinking when 

18 I spoke on something -- again, I think at a low level 

19 waste conference or maybe a waste management 

20 conference, and I didn't know you terribly well, but you 

21 were there. I think you were moderating another panel 

22 or something. 

23 And I thought after you spoke, I thought, 

24 gee, that one guy is carrying around a lot of our 

25 institutional knowledge. And, you know, it's 

26 compliment to you, but it's an organizational 
 118 

1 vulnerability. And you are walking around with a lot 

2 of it, and now you're walking right out the door with 

3 it, which isn't the greatest possible feeling. But we 

4 will reside confidence in the fact that you have 

5 mentored many, many NRC staff in this subject matter 

6 area. Thank you for that. That is an enduring 

7 investment in the institution, and we credit you with 

8 that. 

9 And I think Cathy said you have 34 years of 

10 federal service. These numbers at NRC are always 

11 really impressive. People have worked here a really 

12 long time, and I -- you know, you kind of wonder to 

13 yourself, what motivated a person to work in this area? 

14 I did joke a little bit that you will be 

15 remembered, as Cathy described -- and I said whether you 

16 want to or not -- I probably talked over the 

17 transcription, but Cathy was trying to be very dignified 

18 about it. But I have often said at NRC retirement 

19 parties that we do not get to choose the contributions 

20 that we are remembered for. Others will decide the 

21 contributions we make, and that I think what is always 

22 revealing is that what you think people find the most 

23 gratifying or memorable about their own career is likely 

24 very different than the things they think that they are 

25 most proud of, that they conquered and contributed. 

26 So I think somewhere between the two is the 
 119 

1 accurate answer of kind of the impact that we have had 

2 on any institution. 

3 And so what I've observed, and everyone 

4 around this table has chosen public service -- even the 

5 other federal and state partners who are here, so it's 

6 interesting to me. I don't find people who stay in it 

7 for their careers, they are not put off by complex 

8 issues, as we have discussed today, long hours or hard 

9 work. 

10 I think the one thing that I -- and I will 

11 have 25 years. I mention that too much, but I will have 

12 that at the end of the year. It scares me a little. I 

13 don't mention it self-congratulatory. It's 

14 frightening how the years go by. 

15 But I think that my moment of frustration 

16 is when there -- and it puzzles me to death, this 

17 implication that people who choose public health and 

18 safety, you know, other public missions, any 

19 implication that they would have a kind of a careless 

20 or reckless disregard for that very mission that, by the 

21 way, they choose to get up every day and devote 

22 themselves to. 

23 So that does not square with my observation 

24 of people in public -- it's a very honorable thing to 

25 work in public service, and I know that it's sad that 

26 that's a bold statement I guess to make these days. 
 120 

1 That's very, very unfortunate. 

2 Mr. Maguire talked about standing close to 

3 the flame. There is another political -- I'm not a 

4 political scientist, but there is another political 

5 view that says government governs best that governs 

6 closest to the people. So I think that's another way 

7 of talking about that flame and being close to it. 

8 But maybe I'll ask you this question, and 

9 it's just as straightforward as it sounds. Are the 

10 women and men who work at the Texas Commission on 

11 Environmental Quality committed to the public health 

12 and safety of Texas citizens and Texas citizens of the 

13 future? If you were aware of a technical issue or 

14 anything that needed to be investigated in terms of an 

15 analysis or something brought to your attention, would 

16 you pursue that? 

17 MR. MAGUIRE: Yes, ma'am. And I so 

18 appreciate what you said. I mean, it -- we wouldn't be 

19 there if we didn't care and if we weren't passionate 

20 about it. And I have to say, and I think WCS would back 

21 me up really quickly. I mean, we are very passionate 

22 about the program that we work in there. 

23 And when we see things, we take them head 

24 on, and we take them head on very, very quickly, because 

25 we can't -- we hold the public trust, and we can't -- we 

26 can't deny our obligation to do that. And we would be 
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1 doing something else if we weren't passionate about 

2 that, I think. 

3 COMMISSIONER SVINICKI: And I began my 

4 career in public service at a state regulatory agency, 

5 and so I feel a little -- I'm not from Texas, and I 

6 can't -- but you know what? I found myself thinking, 

7 don't mess with Texas. A little bit of my Texas got up 

8 there. You know, when there is any implication that a 

9 state agency is some kind of, you know, pale substitute 

10 for other regulation, I just -- I reject that. 

11 MR. MAGUIRE: It's just not true. But, 

12 you know, people do say that, and I think that's 

13 unfortunate. But I've spent my career, both on the 

14 outside and both on the inside, and I feel far more noble 

15 about my last 10 years working for the state and the 

16 environmental agency than any other thing I've done. 

17 COMMISSIONER SVINICKI: Thank you for 

18 that. And I don't want our DOE colleague to feel that 

19 I didn't have some commentary for you. I thought 

20 you -- you did a great job in getting me on the edge of 

21 my seat. You talked about the preferred alternative, 

22 and you said, "The preferred -- I can say this about the 

23 preferred" -- I thought you were going to make some news 

24 here today on the preferred alternative. 

25 (Laughter.) 

26 You really had me going, because you said, 
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1 "There is going to be options." And I thought, he is 

2 going to say something, he is going to say something. 

3 But, you know, okay, we will have to stay 

4 tuned on your preferred alternative, which is actually 

5 going to be I guess preferred options, or the options 

6 inside the alternative? How does that work? 

7 (Laughter.) 

8 MR. MARCINOWSKI: Well, I just want to say, 

9 my philosophy on waste disposal is, you know, given the 

10 nature of the business and the fact that there are 

11 regulatory issues, political issues, that crop up all 

12 the time, that some are unexpected, that we need options 

13 with regard to the disposal facilities. 

14 So if I can have, you know, two or three 

15 potential disposal options, in case something happens 

16 that affects disposal at one facility, then I've still 

17 got an alternative. 

18 COMMISSIONER SVINICKI: Okay. And I'm 

19 not questioning -- anything you can get past your NEPA 

20 attorneys is fine by me. I'm not going to question it. 

21 It's a very complex area of law. 

22 I want to give Mr. Camper the last word. 

23 When you think about your time at NRC, what are you most 

24 proud of? 

25 (Laughter.) 

26 MR. CAMPER: Whoa. Whoa, whoa, whoa. 
 123 

1 Let me make a comment about -- 

2 COMMISSIONER SVINICKI: That was supposed 

3 to be a question that you would welcome answering. 

4 MR. CAMPER: I'll come to that. Let me 

5 make a comment about the issue before us, though, 

6 because I want to pick up on something that you said 

7 about solving a problem. As I have worked with the 

8 staff to -- 

9 COMMISSIONER SVINICKI: You realize that 

10 Cathy and Mike are very nervous right now. 

11 (Laughter.) 

12 MR. CAMPER: I'll get to them in a minute. 

13 Now, as I have worked with the staff in 

14 addressing this challenge, one thing that has struck me 

15 very, very strongly about solving a problem is this 

16 issue of orphaned waste at greater than 100 nanocuries 

17 per gram for TRU is a problem. It is a regulatory 

18 problem that we should fix. 

19 There is a lot of it, and right now there 

20 is no place for it to go. I strongly urge the Commission 

21 to address that. It troubles me a lot. 

22 With regards to your question, it is -- I 

23 think if I look back over the years, I can't believe how 

24 many great issues and challenges there have been. It 

25 is -- I often say every day is just a hoot. I mean, every 

26 day I'm meeting with the staff, every day we're facing 
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1 challenging issues, every day I'm talking to very 

2 bright, intelligent people who work hard and want to 

3 solve problems. 

4 And so it has been the -- just the plethora 

5 of issues to deal with over many different arenas, 

6 whether it be medical or commercial or academic, spent 

7 fuel. I mean, the broad spectrum has just been 

8 absolutely rewarding, and I wouldn't trade it for the 

9 world. 

10 COMMISSIONER SVINICKI: All right. Thank 

11 you. Thank you, again, for your service. 

12 Thank you, Mr. Chairman. 

13 CHAIRMAN BURNS: Well, thank you all for 

14 your presentations. Do my other fellow Commissioners 

15 have any -- 

16 COMMISSIONER BARAN: Could I just ask one 

17 more question of Larry before we lose him? Not that 

18 we're going to lose him in five minutes, but I -- 

19 CHAIRMAN BURNS: You can ask Jack because 

20 he's over his time, but -- 

21 (Laughter.) 

22 COMMISSIONER BARAN: Well, after 34 years, 

23 the last question you get should be something really 

24 monumental and memorable, something like the question 

25 that Commissioner Svinicki just asked you. But, 

26 instead, you are going to get this. 
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1 (Laughter.) 

2 This is really just more a factual question 

3 that I wanted to ask earlier and didn't get a chance to. 

4 How does the average radioactivity of the 

5 greater-than-Class C inventory compare to the 

6 transuranic waste being disposed of at WIPP? 

7 MR. CAMPER: The radionuclides or 

8 radioactivity itself is very similar, but the 

9 concentrations are much greater on the non-defense 

10 GTCC. Big numbers. In fact, a Sandia inventory report 

11 provides the concentrations of WIPP waste. For a 

12 handful of radionuclides, the NRC staff compared the 

13 GTCC inventory and volume concentrations to the current 

14 WIPP concentrations. 

15 For all isotopes, the average GTCC 

16 concentrations are 50 times or more, sometimes up to 

17 1,200 times higher, except for cesium-137, which the 

18 GTCC concentrations would be approximately equal to 

19 remote-handled TRU waste at WIPP. So while the GTCC is 

20 radiologically similar in terms of isotopes, it is much 

21 more concentrated, although it does have a broad range 

22 of concentrations ranging from reactor internals to 

23 contaminated clothes. 

24 COMMISSIONER BARAN: Okay. Thank you. 

25 CHAIRMAN BURNS: Well, thank you all. And 

26 I want to add my appreciation for Larry's service over 
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1 the years. It was always a pleasure for me when I was 

2 in the General Counsel's Office to work with Larry on 

3 some of these issues, as well as now -- now that they 

4 come back. 

5 So I wish you well. As I would say to my 

6 French friends, bon voyage, bon courage. 

7 And, with that, we're adjourned. 

8 (Whereupon, the above-entitled matter went 

9 off the record at 11:55 a.m.) 

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