Radiological Criteria for License Termination

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its

regulations regarding decommissioning of licensed facilities to provide

specific radiological criteria for the decommissioning of lands and

structures. The final rule is intended to provide a clear and

consistent regulatory basis for determining the extent to which lands

and structures can be considered to be decommissioned. The final rule

will result in more efficient and consistent licensing actions related

to the numerous and complex site decommissioning activities anticipated

in the future.

EFFECTIVE DATE: This regulation becomes effective on August 20, 1997.

However, licensees may defer rule implementation until August 20, 1998.

FOR FURTHER INFORMATION CONTACT: Cheryl A. Trottier, Office of Nuclear

Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC

20555-0001, telephone: (301) 415-6232, e-mail CAT[email protected]; Frank

Cardile, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory

Commission, Washington, DC 20555-0001, telephone: (301) 415-6185; e-

mail [email protected]; Dr. Carl Feldman, Office of Nuclear Regulatory

Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-

0001, telephone: (301) 415-6194, e-mail [email protected]; or Christine M.

Daily, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory

Commission, Washington, DC 20555-0001, telephone: (301) 415-6026, e-

mail [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

II. Background

III. Overview of Public Comments

IV. Summary of Public Comments, Responses to Comments, and Changes

From Proposed Rule

A. Overall license termination approach and criteria for

unrestricted use (proposed rule Secs. 20.1402 and 20.1404).

1. Proposed rule content.

2. Criteria for unrestricted use, including total effective dose

equivalent, as low as reasonably achievable, and decommissioning

objective.

3. General comments on the dose criterion.

4. Average member of the critical group.

B. Criteria for restricted use (proposed rule Secs. 20.1402(d)

and 20.1405).

1. Proposed rule content.

2. Comments on acceptability of restricted use for

decommissioned sites.

3. Response.

4. Summary of rule revisions on restricted use.

C. Alternate criteria for license termination.

1. Codifying provisions for certain facilities that the proposed

rule suggested exempting.

2. Exclusion of uranium/thorium mills proposed in

Sec. 20.1401(a).

3. Other exemptions.

D. Groundwater protection criteria (proposed rule Sec. 20.1403).

1. Proposed rule content.

2. Use of Environmental Protection Agency drinking water

standards in NRC's regulation.

E. Public participation (proposed rule Secs. 20.1406 and

20.1407).

1. Proposed rule content.

2. General requirements on notification and solicitation of

comments (proposed rule Sec. 20.1406(a)).

3. Additional requirements on public participation (including

those for restricted use, for alternate criteria, and for use of

site-specific advisory boards (proposed rule Sec. 20.1406(b)).

4. Specific questions on functioning of site-specific advisory

boards.

F. Other procedural and technical issues.

1. State and NRC compatibility.

2. Grandfathering sites with previously approved plans (proposed

rule Sec. 20.1401(b)).

3. Finality of decommissioning and future site reopening

(proposed rule Sec. 20.1401(c)).

4. Minimization of contamination (proposed rule Secs. 20.1401(d)

and 20.1408).

5. Provisions for readily removable residual radioactivity.

6. Separate standard for radon.

7. Calculation of total effective dose equivalent over 1000

years to demonstrate compliance with dose standard.

G. Other comments.

1. Definitions (proposed rule Sec. 20.1003).

2. Need for regulatory guidance.

3. Need for flexibility.

4. Consistency with NRC's timeliness rule.

5. Comments from power reactor decommissioning rulemaking.

6. Mixed waste, hazardous waste, and naturally occurring and

accelerator-produced radioactive material.

7. Recycle.

8. The rulemaking process.

V. Agreement State Compatibility

VI. Relationship Between the Generic Environmental Impact Statement

and Site-Specific Decommissioning Actions

VII. Final Generic Environmental Impact Statement: Availability

VIII. Paperwork Reduction Act Statement

IX. Regulatory Analysis

X. Regulatory Flexibility Certification

XI. Backfit Analysis

XII. Small Business Regulatory Enforcement Fairness Act

I. Introduction

The Nuclear Regulatory Commission is amending its regulations

regarding decommissioning of licensed facilities to provide specific

radiological criteria for the decommissioning of lands and structures.

This action is necessary to ensure that decommissioning will be carried

out without undue impact on public health and safety and the

environment.

These criteria apply to the decommissioning of licensed facilities

and facilities subject to the NRC's jurisdiction. The Commission will

apply these criteria in determining the adequacy of remediation of

residual radioactivity resulting from the possession or use of source,

byproduct, and special nuclear material. The criteria apply to

decommissioning of nuclear facilities that operate through their normal

lifetime and to those that may be shut down prematurely.

The intent of this rulemaking is to provide a clear and consistent

regulatory basis for determining the extent to which lands and

structures must be remediated before decommissioning of a site can be

considered complete and the license terminated. The Commission believes

that inclusion of criteria in the regulations will result in more

efficient and consistent licensing actions related to the numerous and

frequently complex site remediation activities anticipated in the

future. The Commission has reassessed residual contamination levels

contained in existing guidance based on changes in basic radiation

protection standards, improvements in remediation and radiation

detection technologies, decommissioning experience, public comments

received on rule drafts and public comments presented at workshops held

as part of the rulemaking effort and public comments received on the

proposed rule.

The NRC has previously applied site release criteria for

decommissioning on a site-specific basis using existing guidance.

Although site-specific situations will still occur, the Commission

believes that codifying radiological criteria for decommissioning in

the regulations will allow the NRC to more effectively carry out its

function of protecting public health and the environment at

decommissioned sites by providing for more efficient use of NRC and

licensee resources, consistent application across all types of

licenses, and a predictable basis for decommissioning planning.

[[Page 39059]]

II. Background

On August 22, 1994 (59 FR 43200), the NRC published a proposed rule

for comment in the Federal Register to amend 10 CFR part 20 of its

regulations ``Standards for Protection Against Radiation'' to include

radiological criteria for license termination. The public comment

period closed on January 20, 1995. Comments received on the proposed

rule were summarized in NUREG/CR-6353. A workshop was held on December

6-8, 1994, to solicit additional comments related to site-specific

advisory boards as described in the proposed rule. Comments received

during that workshop were summarized in NUREG/CR 6307 1. A

workshop was also held on September 29, 1995, to specifically discuss

methods for implementing the rule. Additionally, communication with the

public on the proposed rule was maintained through the Electronic

Bulletin Board system.

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\1\ Copies of NUREGS may be purchased from the Superintendent of

Documents, U.S. Government Printing Office, P.O. Box 37082,

Washington, DC 20013-7082. Copies are also available from the

National Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161. A copy is also available for inspection and/

or copying at the NRC Public Document Room, 2120 L Street, NW.

(Lower Level), Washington, DC.

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III. Overview of Public Comments

Over 100 organizations and individuals submitted comments on the

proposed rule. The commenters represented a variety of interests.

Comments were received from Federal and State agencies, electric

utility licensees, material and fuel cycle licensees, citizen and

environmental groups, industry groups, native American organizations,

and individuals. The commenters offered from 1 to over 50 specific

comments and represented a diversity of views. The commenters addressed

a wide range of issues concerning all parts of the rule. The reaction

to the rule in general and to specific provisions of the rule was

varied. Viewpoints were expressed both in support of and in

disagreement with nearly every provision of the rule.

IV. Summary of Public Comments, Responses to Comments, and Changes From

Proposed Rule

The following sections describe the principal public comments

received on the proposed rule (organized according to the major subject

areas and sections of the proposed rule), present NRC responses to

those comments, and explain principal changes to the proposed rule

(where they occur) in response to those comments. The comments are

organized according to the following major subject areas and sections

of the proposed rule and are presented in the following subsections:

(a) Overall license termination approach (unrestricted use,

restricted use, exemptions, and alternate criteria), and specific

issues on criteria for unrestricted use (including total effective dose

equivalent (TEDE), as low as is reasonably achievable (ALARA),

objective of decommissioning, average member of critical group);

(b) Specific issues on criteria for restricted use (bases for using

restricted use, reliance on institutional controls, 1 mSv (100 mrem)

TEDE cap, engineered barriers, financial assurance);

(c) Specific issues on exemptions and alternate criteria for

license termination (facilities with large volumes of low level wastes,

uranium and thorium mills, exemptions);

(d) Groundwater protection criteria (use of Environmental

Protection Agency (EPA) drinking water standards of 40 CFR 141 in NRC's

regulation);

(e) Public participation (means of notification, site-specific

advisory boards (SSABs));

(f) Other procedural and technical issues (state compatibility,

grandfathering, finality, minimization of contamination, readily

removable residual radioactivity, radon, calculation of TEDE over 1000

years to demonstrate compliance with dose standard); and

(g) Other comments (definitions, regulatory guidance; timeliness

rule; wastes; recycle; rulemaking process).

The comments received from both public comment and the workshops

have been factored into the Commission's decisionmaking on the final

rule and into the technical basis for guidance documents implementing

the final rule. The description of changes to the final rule made as a

result of the comments in each of the major subject areas follows each

comment/response section.

A. Overall License Termination Approach and Criteria for Unrestricted

Use (Proposed Rule Secs. 20.1402 and 20.1404)

A.1 Proposed Rule Content

The proposed rule (Sec. 20.1402(d)) presented an overall approach

for license termination involving either of two basic methods, i.e.,

unrestricted use or restricted use of sites after license termination.

The proposed rule indicated that unrestricted use was generally

preferred, but that restricted use was also permitted because it was

recognized that there may be cases where achieving unrestricted use

would not be reasonable.

Specific requirements for use of each of these two basic methods

were presented in the proposed rule. The preamble to the proposed rule

also indicated that there may be certain licensees that would seek

exemptions from the decommissioning criteria of the proposed rule,

although it did not codify this exemption path.

Section IV.A.2 reviews in detail the development of unrestricted

use criteria; and, in doing so it also indicates, in general, how the

overall approach for license termination has been reexamined to

consider public comments. Specific issues and requirements regarding

other areas, specifically restricted use, exemptions, and alternate

criteria, are discussed in more detail in Sections IV.B and IV.C of

this preamble.

Section 20.1402(a) of the proposed rule indicated that the

objective of decommissioning is to reduce residual radioactivity in

structures, soils, groundwater, and other media at the site so that the

concentration of each radionuclide that could contribute to residual

radioactivity is indistinguishable from the background radiation

concentration for that nuclide. Section 20.1402(a) further noted that,

as a practical matter, it would be extremely difficult to demonstrate

that such an objective had been met and that a site release limit for

unrestricted use was being proposed.

Section 20.1404 of the proposed rule indicated that a site would be

considered acceptable for unrestricted use if the residual

radioactivity that is distinguishable from background radiation results

in TEDE to an average member of the critical group of 0.15 mSv/y (15

mrem/y) and has been reduced to levels that are ALARA.

Section 20.1402(d) of the proposed rule indicated that release for

unrestricted use of a facility is the preferred approach but that the

alternative of release for restricted use would also be allowed if its

use were justified (see Section IV.B).

A.2 Criteria for Unrestricted Use, Including TEDE, ALARA, and

Decommissioning Objective

A.2.1 Comments. Some commenters (including EPA) agreed that 0.15

mSv/y (15 mrem/y) is an acceptable criterion because it is attainable,

provides a margin of safety, and isn't unjustifiably costly. The

Department of Energy (DOE) agreed that 0.15 mSv/y (15 mrem/y) could be

acceptable if reasonable scenarios were considered although it

preferred 0.25 mSv or 0.3 mSv/y (25 or 30 mrem/y) with ALARA. However,

most commenters did not agree with the

[[Page 39060]]

0.15 mSv/y (15 mrem/y) criterion. Some opposed 0.15 mSv/y (15 mrem/y)

as being too high and preferred alternatives that reduced the

contamination level to lower levels, including preexisting background.

The majority of commenters opposed 0.15 mSv/y (15 mrem/y) as being too

low and gave alternatives that generally included increasing the limit

to 0.25, 0.3, 0.5, or 1 mSv/y (25, 30, 50, or 100 mrem/y) with further

reduction based on ALARA. The categories of reasons given by commenters

opposing 0.15 mSv/y (15 mrem/y) as either too high or too low included

potential health impacts or the lack of demonstrable health effects at

these levels, consistency with national and international standards,

effect of multiple sources, consistency with other NRC/EPA regulations,

analysis of costs vs. benefits, ability to measure, effect on disposal

capacity, effect on sites with naturally occurring radioactive material

(NORM), and responsibility for cleanup of sites.

The proposed rule indicated that licensees would be expected to

demonstrate that doses are ALARA below the proposed 0.15 mSv/y (15

mrem/y) dose criterion. Some commenters endorsed ALARA analyses in

specific cases to determine if doses should be reduced below 0.15 mSv/y

(15 mrem/y) and recommended that a value of 0.03 (or less) mSv/y (3 (or

less) mrem/y) be the ALARA objective. Some of these commenters also

requested that the NRC explicitly mandate that technical and economic

analyses be performed. Other commenters indicated that ALARA principles

and analyses should not be required to determine if cleanup should be

performed to reduce doses below 0.15 mSv/y (15 mrem/y) because the

costs are large in comparison with the small reduction in risk. Several

commenters indicated, alternatively, that ALARA should be allowed above

0.15 mSv/y (15 mrem/y) and that the rule should allow ALARA analyses to

be used to permit a licensee to release its site at a value higher than

0.15 mSv/y (15 mrem/y) (up to 1

mSv/y (100 mrem/y)) if ALARA calculations support this alternative.

Another commenter disagreed and recommended that ALARA analyses be

applied only to demonstrate if additional cleanup is required below

0.15 mSv/y (15 mrem/y). Some commenters stated that guidance should be

provided describing how ALARA should be achieved, how doses would be

quantified, how models and parameters would be selected, what $/person-

rem value would be used, how nonradiological risks would be considered,

how net risks would be evaluated, how flexibility would be

incorporated, what degree of simplification of complex models would be

incorporated, and what final criteria would be used.

The proposed rule also contained, in Sec. 20.1402(a), a

decommissioning objective of reducing residual radioactivity to levels

that are indistinguishable from background. Section 20.1402(a) further

noted that such an objective may be difficult to meet as a practical

matter. Many commenters opposed establishment of the decommissioning

objective because it is arbitrary, serves no purpose for industrial

sites, is costly and a waste of resources, is unlikely to be achieved,

and cannot be measured. Some commenters supported establishing the

proposed objective because it is reasonable from a health standpoint.

Others suggested alternative objectives such as ALARA or using a dose

that is indistinguishable from the variation in background.

A.2.2 Response. The preamble to the proposed rule described three

broad considerations as providing the overall rationale for the

proposed rule's approach to license termination. The first two

considerations were related to health and safety, i.e., level of risk

and need for a constraint or margin of safety below the 1 mSv/y (100

mrem/y) public dose limit of 10 CFR part 20 to account for the

potential effect of multiple sources of radiation exposure. The third

consideration was related to practicality and reasonableness of costs.

The preamble to the proposed rule noted that the risk implied by use of

the proposed 0.15 mSv/y (15 mrem/y) dose is comparable to other

standards and practices of EPA and NRC for areas of unrestricted access

in the vicinity of facilities, and that the proposed 0.15 mSv/y (15

mrem/y) standard provides a substantial margin of safety (constraint)

for a single source below the 1 mSv/y (100 mrem/y) public dose limit in

10 CFR part 20 to account for the potential exposure of a member of the

public to other sources. This ``constraint'' approach was noted as

being consistent with generic constraint recommendations made by

national and international scientific bodies such as the International

Commission on Radiation Protection (ICRP) and the National Council on

Radiation Protection and Measurements (NCRP). Requirements related to

ALARA, the decommissioning objective, and restricted use were included

in the rule based on the NRC staff analysis in the Draft Generic

Environmental Impact Statement (GEIS) (NUREG-1496) that showed that the

costs of reducing exposures to, or in some cases below, a 0.15 mSv/y

(15 mrem/y) criterion would not generally be unduly burdensome for most

licensees, although in those cases where the costs would present an

unreasonable burden, release of the site with restrictions placed on

its use would provide an alternative means for achieving the same level

of protection. Achieving levels of less than 0.15 mSv/y (15 mrem/y),

including achieving the decommissioning objective, was generally seen

as not cost-effective because increasingly larger volumes of concrete

and soil would have to be removed at a greater net risk due to deaths

from transportation accidents and because more difficult survey

measurements would have to be made with little net benefit in dose

reduction.

The NRC considered alternatives suggested in public comments and

reexamined the rationale of the proposed rule. A summary of that

reexamination, along with a description of particular comments on the

rationale, is contained in the following subsections.

A.2.2.1 Level of risk and consistency with other EPA/NRC

standards. Some commenters criticized the health risk associated with a

0.15 mSv/y (15 mrem/y) limit as too high thereby providing inadequate

public protection. In particular, they objected to the NRC's reliance

on ICRP and NCRP because recent research (including findings in the

aftermath of the 1986 Chernobyl accident and in the 1990 report on

Biological Effects of Ionizing Radiation (the BEIR V report)) showed

risks to be higher than ICRP or NCRP indicated, or suggested other

sources for limits, including a British standard and a National Academy

of Sciences statement on radiation safety. Commenters also indicated

that 0.15 mSv/y (15 mrem/y) was too high because it is higher than

other NRC or EPA standards such as those for operating reactors.

The majority of commenters criticized 0.15 mSv/y (15 mrem/y) as too

low for reasons which included that it is far below the level at which

health effects have been observed in studies, that the risks associated

with other EPA and NRC standards (including 10 CFR parts 20, 60 and 61,

40 CFR parts 190 and 191, and EPA's radon action level) are higher, and

that it is based on the linear non-threshold theory which is not

appropriate for setting such standards. These commenters also

criticized the relationship of the risks implied by this rule to those

implied by standards for chemical hazards.

In general, many commenters stated that the NRC should work closely

with

[[Page 39061]]

the EPA in developing its decommissioning regulations to assure that

there are no conflicting or duplicate requirements and that the

acceptable risk levels and associated requirements developed by the two

agencies are compatible or the same. DOE noted that a nonuniform

approach could significantly impact the DOE environmental restoration

program and that NRC/EPA regulations will have an impact beyond NRC

licensees. There was some commenter disagreement as to whether EPA or

NRC should take the lead in issuance of exposure standards. In its

comments on the NRC's proposed rulemaking, the EPA supported the 0.15

mSv/y (15 mrem/y) limit.

In response, the NRC has considered recent information and

recommendations in ICRP Publication 60 and NCRP No. 116. These

documents are developed by recognized experts in the fields of

radiation protection and health effects and contain reviews of current

significant research in radiation health effects. The NCRP is a

nonprofit corporation chartered by the U.S. Congress to develop and

disseminate information and recommendations about protection against

radiation and to cooperate with the ICRP and other national and

international organizations with regard to these recommendations. The

ICRP has continued to update and revise its estimates of health effects

of radiation since its inception in 1928. In its deliberations, ICRP

maintains relationships with United Nations health and labor

organizations.

In addition, the NRC evaluated the proposed Federal Radiation

Protection Guidance for Exposure of the General Public (FRG) as

published for comment on December 23, 1994 (59 FR 66414), in which the

EPA, under its charter, made recommendations to the President of the

United States concerning recommended practices for protection of the

public and workers from exposure to radiation.

Recent recommendations contained in ICRP 60, NCRP No. 116, and the

proposed FRG are essentially similar. Use of these sources for

formulating basic radiation protection standards is consistent with

NRC's general approach regarding risk decisions as is noted in the

preamble to issuance of 10 CFR part 20 on May 21, 1991 (56 FR 23360).

The NRC considers it reasonable and appropriate to use the findings of

these bodies in developing criteria for license termination to apply to

its licensees.

The ICRP and NCRP and EPA have reviewed current, significant

studies made by other health research bodies, such as the National

Academy of Sciences-National Research Council's Committee on the

Biological Effects of Ionizing Radiation (BEIR) and the United Nations

Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), and

have developed recommendations regarding limitations on exposure to

radiation. In particular, the BEIR Committee conducted major reviews of

the scientific data on health risks of low levels of ionizing radiation

in 1972, 1980, 1988, and 1990, and similar reviews were published by

UNSCEAR in 1977, 1982, 1986, and 1988. As noted in the proposed FRG,

these studies have provided more certainty about radiation risks at

high doses and dose rates. Using that information and assumptions of

linearity with low dose/dose rate reduction factors, BEIR V contains

updated risk factors.

Concerning recent information from the Chernobyl accident noted by

a commenter, there are still ongoing studies of the effects of the

accident. A report published by the principal international

organization studying health effects from the accident, the

Organization for Economic Co-operation and Development (OECD), entitled

``Chernobyl: Ten Years On; Radiological and Health Impact,'' summarized

the findings regarding health impacts by noting that scientific and

medical observation of the population has not revealed any increase in

cancers or other radiation induced disease that could be attributable

to the Chernobyl accident. The only area where an increase was noted

was for thyroid cancer. However, these effects most likely resulted

from the release of short-lived radioiodine from the accident and the

affinity of the thyroid gland for iodine. Similar effects would not be

applicable in decommissioning because radioactive iodine is not

expected to be a significant contaminant. The report further notes

that, while studies continue on long term effects, it is unlikely that

the exposure to contaminants in the environment will lead to

discernible radiation effects in the general population. Thus, this

research does not appear to indicate that the findings of the ICRP and

NCRP will be shown to underestimate risks.

Specifically with regard to the risk level, some of the commenters

stated that the risk of fatal cancers from 0.15 mSv/y (15 mrem/y) is

too high in comparison with risk goals in the range 1 x 10-4

to 1 x 10-6 used by EPA in Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA) regulations. Other

commenters disagreed and stated that precedents from earlier NRC

rulemakings support a level of risk significantly greater than that and

more appropriately in a range of 1 x 10-2 to

1 x 10-3 (e.g., the level of lifetime risk corresponding to

the 1 mSv/y (100 mrem/y) public dose limit of 10 CFR Part 20, that is

NRC's basic standard for public safety, is about

1.5 x 10-3). Several of these commenters also criticized

0.15 mSv/y (15 mrem/y) as too low because the linear non-threshold

model overestimates the risk and should not be used in the analysis. In

response to comments on the risk level, constant exposure over a 30-

year time period to dose levels of about 0.15-0.25 mSv/y (15-25 mrem/

y), results in an estimated lifetime risk of fatal cancer of about

2.3 x 10-4 to 3.8 x 10-4 which is at the upper

end of the acceptable risk range suggested by EPA in their comments on

NRC's proposed rule but lower than that in NRC's public dose

limits.2 These estimates are based on use of the linear non-

threshold model for calculating risk estimates. In response to specific

comments on use of the linear non-threshold model in estimating risk,

use of the linear non-threshold model for estimating incremental health

effects per radiation dose incurred is considered a reasonable

assumption for regulatory purposes by international and national

scientific bodies such as ICRP and NCRP. The principal international

and national radiological protection criteria, including the NRC's, are

based on this assumption as a measure of conservatism. NRC's policy

regarding use of the linear non-threshold model was stated in the

preamble to the issuance of 10 CFR part 20 (56 FR 23360; May 21, 1991)

noting that the assumptions regarding a linear non-threshold dose

effect model are appropriate for formulating radiation protection

standards. Although this matter continues to be the subject of further

consideration at this time, there is not sufficient evidence to

convince the NRC to alter its policy as part of this rulemaking.

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\2\ The risks are estimated assuming a risk coefficient of

5 x 10-4 per rem and a 30-year lifetime exposure that is

used by EPA in estimating risk from contaminated sites based on the

assumption that it is unlikely that an individual will continue to

live or work in the same area for more than 30 years. Such an

estimate is seen as providing a conservative estimate of potential

risk because land use patterns are generally such that persons

living at or near a site will not continuously receive the limiting

dose, and, for most of the facilities covered by this rule, the TEDE

is controlled by relatively short-lived nuclides of half-lives of 30

years or less for which the effect of radioactive decay will, over

time, reduce the risk significantly (e.g., at reactors where much of

the contamination is from Co-60 with a half-life of 5.3 years).

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To provide some perspective on the conservatism of considering dose

criteria in the range of 0.15-0.25 mSv/

[[Page 39062]]

y (15-25 mrem/y), it should be noted that, as described in the Final

GEIS (NUREG-1496) prepared in support of this rulemaking, these levels

are small when compared to the average level of natural background

radiation in the United States (about 3 mSv/y (300 mrem/y)) and the

variation of this natural background across the United States. In

addition, although as noted above NRC is not altering its policy

regarding use of the linear non-threshold model as part of this

rulemaking, there is uncertainty associated with estimating risks at

such dose levels. This uncertainty occurs because evidence of radiation

dose health effects has only been observed at high dose levels (200 mSv

(20,000 mrem) and above) and significant uncertainty in risk estimation

is introduced when extrapolating to the very low dose levels being

considered in this rulemaking. The health effects resulting from even a

dose of 1 mSv (100 mrem) are uncertain. The BEIR Committee stated in

its 1990 report (BEIR V) that ``Studies of populations chronically

exposed to low-level radiation, such as those residing in regions of

elevated natural background radiation, have not shown consistent or

conclusive evidence of an associated increase in the risk of cancer.''

The risk associated with a dose criterion in the range of about

0.15-0.25 mSv/y (15-25 mrem/y) is generally consistent with the risk

levels permitted in the performance objectives for low-level waste

facilities in 10 CFR 61.41, and for fuel cycle facilities and for spent

fuel and high level waste in EPA's 40 CFR 190 and 191. In addition,

doses in the range of 0.15-0.25 mSv/y (15-25 mrem/y) are comparable to

current NRC practices for decommissioning of reactors and certain

materials facilities and fuel cycle facilities. Specifically, reactors

have been decommissioned in accordance with Regulatory Guide 1.86 and

with an NRC license termination letter to Stanford University (April

21, 1982, Docket No. 50-141). Materials facilities have been released

in accordance with the levels for external radiation for beta/gamma

exposure in NRC's Policy and Guidance Directive FC 83-23. In addition,

a dose criterion in the range of 0.15-0.25 mSv/y (15-25 mrem/y) is

generally at the low end of the range of values estimated for Option 1

of the 1981 Branch Technical Position (BTP) for sites with uranium and

thorium and used for Ra-226 in 10 CFR 40, Appendix A, for uranium mill

contamination.

A.2.2.2 Effect of multiple sources and margin of safety below 1

mSv/y (100 mrem/y). Some commenters suggested that 0.15 mSv/y (15 mrem/

y) is too low and indicated that the NRC limit was inconsistent with

ICRP and NCRP especially with regard to considerations of multiple

sources of exposure, and that it would be unusual for an individual to

be exposed to multiple sources approaching the 1 mSv/y (100 mrem/y)

limit. These commenters suggested that 25-30 percent of 1 mSv (100

mrem) is an adequate margin to account for multiple sources.

In response, and by way of background, it is noted that the NCRP in

its publication No. 116 (Chapter 15) recommends that, for continuous

exposure, the effective dose to members of the public not exceed 1 mSv/

y (100 mrem/y) from all man-made sources, other than medical and not

including natural background sources. Similarly, ICRP, in Table 6 of

ICRP Publication 60, recommends a limit of 1 mSv/y (100 mrem/y) as the

dose limit for the public, and recommendation No. 3 of the draft EPA

Federal Radiation Protection Guidance (FRG) indicates that the combined

radiation doses incurred in any single year from all sources of

exposure (excluding medical and natural background) should not normally

exceed 1 mSv (100 mrem) and that continued or chronic exposure of an

individual over substantial portions of a lifetime at or near 1 mSv/y

(100 mrem/y) should be avoided. Consistent with these bodies, the NRC

issued 10 CFR part 20 (56 FR 23360) in 1991 that established a public

dose limit of 1 mSv/y (100 mrem/y) in 10 CFR 20.1301.

These national and international bodies also note and agree that,

although the limit for the public dose should be 1 mSv/y (100 mrem/y)

from all man-made sources combined, it would seem appropriate that the

amount that a person would receive from a single source should be

further reduced to be a fraction of the limit to account for the

possibility that an individual may be exposed to more than one source

of man-made radioactivity, thus limiting the potential that an

individual would receive a dose at the public dose limit.

Recommendations from these bodies, as well as from the NRC's Advisory

Committee on Nuclear Waste (ACNW), regarding what the fraction from a

source should be are:

(a) NCRP No. 116, Chapter 15, notes that no single source or set of

sources under one's control should result in an individual being

exposed to more than 0.25 mSv/y (25 mrem/y). This fraction was

presented as a simple alternative to having a site operator (where a

site could expose individuals to levels greater than 0.25 mSv/y (25

mrem/y)) investigate all man-made exposures that an individual at the

site would be exposed to so as to demonstrate that the total dose does

not exceed 1 mSv/y (100 mrem/y). The clear implication in this simple

alternative is that, if individual sources are constrained to 0.25 mSv/

y (25 mrem/y), NCRP believes it likely, given the low potential for

multiple exposures, that the public dose limits will be met. Further

reductions considering ALARA would still be considered by NCRP No. 116.

(b) ICRP 60, Section 5.5.1, in discussing the principles of

constraints and limits, notes that it is appropriate to select dose

constraints applied to each source to allow for contributions from

other sources so as to maintain doses below the 1 mSv/y (100 mrem/y)

limit. ICRP 60 does not contain numerical guidance on dose constraints

for particular practices, but notes that cumulative exposures to

individuals from existing sources near 1 mSv/y (100 mrem/y) are rarely

a problem primarily because of the widespread use of source-related

dose constraints.

Further explanation of the fundamental concepts of ICRP 60 are

contained in the paper, ``The ICRP Principles of Radiological

Protection and Their Application to Setting Limits and Constraints for

the Public from Radiation Sources,'' by Professor Roger Clarke,

Chairman of the ICRP (January 12, 1995; a copy is available in the file

for this rulemaking in the NRC Public Document Room, 2120 L Street NW.

(Lower Level), Washington, DC). The paper notes that the constraint

approach derives from the optimization principle of radiation

protection in which, for any source, individual doses should be ALARA

and also be constrained by restrictions on doses to individuals (i.e.,

dose constraints). The paper further notes that a constraint is an

individual related criterion applied to a single source to ensure that

the overall dose limits are not exceeded, and that a dose constraint

would therefore be set at a fraction of the dose limit as a boundary on

the optimization of that source. Based on the principles presented in

the paper, the constraint recommended in the paper for a decommissioned

site is 0.3 mSv/y (30 mrem/y) and that further optimization through the

ALARA principle is appropriate. As is the case for NCRP No. 116, the

implication of the paper and ICRP 60 is that the constraint level is a

boundary on the dose from this source and is sufficient to assure that

members of the public are not exposed to levels in excess of the public

dose limit. The rationale for this is expressed in Section 5.5.1 of

ICRP 60 where it is noted that the critical group

[[Page 39063]]

is not normally exposed to the constraint level from more than one

source although it may be exposed to some dose level less than the

constraint level from more than one source.

(c) The proposed FRG in recommendation No. 4 indicates that

individual sources should have ``authorized limits'' set at a fraction

of the 1 mSv/y (100 mrem/y) limit for all sources combined. The draft

FRG notes that the basis for this recommendation is the various

categories of activities using radiation that can lead to exposure to

members of the public, and also notes the need for broad assumptions

about future activities involving radiation use.

The draft FRG does not recommend a level for any one source

although it does note that setting such a fraction will necessarily be

a broad judgment based on a general observation of the characteristics

of existing activities, projections for continuing those activities in

the future, and the potential for other uses in the future that can be

identified now. Thus, the draft FRG notes that, in the case of

authorized limits for broad categories of sources, the judgments will

often necessarily be broad and may lead to somewhat higher values, with

further implementation of the ALARA process left to management of

individual sources within a category. The draft FRG does not indicate

how this judgment is to be made although it cites authorized standards

for certain sources that currently exist, including 40 CFR part 190 for

the nuclear fuel cycle, Appendix I to 10 CFR part 50 for power

reactors, 10 CFR part 61, and 40 CFR part 141. All of these set

authorized fractions at 25 percent or less of the 1 mSv/y (100 mrem/y)

public dose limit. NRC, in its comments on EPA's draft FRG, questioned

what was the appropriate fraction of the public dose limit in 10 CFR

part 20 that should be used in setting constraints that would become

``authorized'' limits.

(d) In its review of how the principles and recommendations of the

ICRP, NCRP, and FRG are relevant to the proposed NRC rule, NRC's

Advisory Committee on Nuclear Waste (ACNW) noted that 0.15 mSv/y (15

mrem/y) represented an unnecessarily conservative fraction of the 1

mSv/y (100 mrem/y) annual limit. The ACNW agreed that the need to

partition the annual recommended dose limit among several sources to

which a person is likely to be exposed appears justifiable and noted

that no explicit guidance from the various national and international

bodies on this subject exists. ACNW stated that a constraint of 25

percent or 30 percent of the 1 mSv/y (100 mrem/y) limit appears more

justified and appropriate based on the likelihood that no more than 3

or 4 separate regulated sources will affect the critical group at any

instance. ACNW further noted that the selection of 0.15 mSv/y (15 mrem/

y), that represents about \1/7\ of the annual limit, assumes that a

person will encounter a simultaneous dose from seven different

regulated sources and that this appears to them to be unjustified,

particularly because the ALARA principle accompanies all such NRC

regulatory actions.

The recommendations of the previously cited organizations can be

summarized as suggesting that a constraint value should be set as part

of the process of optimizing the dose from a particular source and that

this constraint value should be set as a boundary value below which

further optimization or ALARA principles should be employed. The

recommendations also appear to suggest that setting a source constraint

of 25-33 percent of the annual dose limit of 1 mSv/y (100 mrem/y) is

appropriate and adequate to ensure that the dose limit is met, and do

not tend to lend support to 0.15 mSv/y (15 mrem/y) as the appropriate

fraction to which to constrain the dose from an individual source

because it is not likely that a critical group will be exposed to as

many as seven sources. Thus, the recommendations appear to indicate

that the constraint value should be set using a more reasonable

approach.

In discussing the bases for the 0.15 mSv/y (15 mrem/y) dose

criterion in the proposed rule, the Commission noted in the preamble

(at 59 FR 43219; August 22, 1994) that 0.15 mSv/y (15 mrem/y) would

provide a ``substantial'' margin of safety and be appropriate for

decommissioned facilities. As part of its review of the public

comments, the Commission considered the recommendations of the

standards-setting bodies previously cited. Further, in making a

judgment on the appropriate value of the fraction, the Commission also

considered principles of optimization, numbers and types of sources,

potential for exposure of critical groups to more than one source at

the constraint value, and assumptions regarding the manner in which a

critical group would be exposed. NRC reviewed the assumptions of the

Draft and Final GEIS regarding exposure pathways and also NUREG/CR-5512

upon which the Draft and Final GEIS are based. NUREG/CR-5512 provides

an analysis of exposure pathways for critical groups at decommissioned

facilities. The principal limiting scenarios include: (a) Full time

residence and farming at a decommissioned site, (b) exposure while

working in a decommissioned building, and (c) renovation of a newly

decommissioned building. These principal limiting exposure scenarios

are intended to overestimate dose and also tend to be somewhat mutually

exclusive; i.e., a person living near a decommissioned nuclear facility

would only receive a dose near the constraint level if his living

pattern includes full-time residency and farming at the site. This

living pattern would make it difficult for the member of this critical

group to also be a member of the critical group from other licensed or

decommissioned sources. Conversely, a person having less residency than

a full time farmer (e.g., apartment dweller, homeowner who works away

from the site) might receive doses from other sources but would receive

less than the constraint value from the decommissioned site because the

exposure time and the number of pathways would be reduced. Thus, given

the assumptions regarding living patterns made in evaluating compliance

with the constraint level, it is difficult to envision an individual

receiving levels approaching constraint levels from more than one

licensed or decommissioned source. It is also likely that individuals

at a decommissioned site will actually be exposed to doses

substantially below the constraint level because of ALARA

considerations and because of the nature of the cleanup process itself,

i.e., the process of scabbling of concrete removes a layer of concrete

which likely contains a large fraction of the remaining radioactivity,

and the process of soil excavation is a gross removal process that is

also likely to remove large fractions of the radioactivity. For

example, the Final GEIS indicates that, for the reference cases

analyzed, removal of a layer of concrete by scabbling will result in

doses at levels from 2 to more than 10 times lower than a constraint

value. In addition to consideration of decommissioned sources, it is

also difficult to envision that an individual could come in contact

with more than a few other sources as part of normal living patterns.

For example, the NCRP in NCRP No. 93, ``Ionizing Radiation Exposure of

the Population of the United States,'' September 1987, reviewed likely

radiation exposures to the public from consumer products, air

emissions, and fuel cycle facilities (including nuclear power plants)

and found that, in general, exposure to the public is a small fraction

of 1 mSv/y (a few mrem/y). Recent experience on

[[Page 39064]]

nuclear power plant emissions and dose commitments (NUREG/CR-2850)

tends to support the conclusions of NCRP No. 93 about power plant

exposures.

NRC's generic evaluation of uses of and doses from various sources,

including decommissioned sources, supplemented by the recommendations

of the standards setting bodies and advisory committee noted above,

suggests that the substantial added margin of safety provided by the

0.15 mSv/y (15 mrem/y) value may be too restrictive for its intended

purpose of constraining doses from this category of sources in

establishing an appropriate boundary constraint. Rather, the evaluation

leads NRC to conclude that 25 percent of the public dose limit is a

sufficient and ample fraction to use as the limitation for

decommissioned sources.

Thus, the Commission concludes that a generic dose constraint or

limitation for decommissioning sources of 0.25 mSv/y (25 mrem/y) for

unrestricted release of a site is reasonable from the standpoint of

providing a sufficient and ample margin of safety for protection of

public health and safety. It is recognized that this conclusion

reflects a judgment regarding the likelihood of individuals being

exposed to multiple sources with cumulative doses approaching 1 mSv/y

(100 mrem/y) rather than an analysis based on probability distributions

for such exposures. However, considering the kinds of occupancy time

typically assumed for the average member of the critical group at a

site, it is highly unlikely that individuals could realistically be

expected to experience exposures to other sources with a cumulative

effect approaching 1 mSv/y (100 mrem/y).

A.2.2.3 Cost and practicality of standard. Comments received on

cost and practicality were analyzed to determine whether such an

analysis can provide additional information related to the criteria of

this rule. This analysis includes how, and to what level, ALARA efforts

should be made, how the proposed decommissioning objective of returning

a site to background should be applied, and what provisions should

there be (e.g., restricted use) for sites where it is unreasonable or

unwise to attain the unrestricted dose criterion.

Some commenters criticized the proposed rule for including

considerations of cost-effectiveness, objecting to using cost in

decisionmaking. Other commenters criticized the rule because, although

they favored use of cost-benefit analyses in decisionmaking, they

believed that the cost-benefit analysis in the draft GEIS and draft

Regulatory Analysis (RA) was inadequate to justify a 0.15 mSv/y (15

mrem/y) dose criterion because it used an improper approach (i.e.,

combining the building and soil analysis). They also believed that it

underestimated the amount of contamination at reference facilities, as

well as the costs of remediation and final site closeout surveys.

The Commission considered the concerns of commenters who criticized

inclusion of cost as a consideration in decisionmaking. NRC methods and

policy regarding cost considerations are stated in NUREG/BR-0058, Rev.

2, and call for preparation of an appropriate regulatory analysis in

support of regulatory decisions. NUREG/BR-0058 does note that costs

cannot be considered for regulatory actions necessary to ensure

adequate protection of the health and safety of the public; however, it

further notes that costs can be a factor in those cases where there may

be more than one way to reach a level of adequate protection. Thus, the

analysis in the GEIS and RA was prepared in support of the rulemaking

to provide additional information to decisionmakers about the rule

criteria being considered.

The Commission has also considered the concerns of those commenters

that criticized the analysis of costs and risks as incomplete and

inadequate and reviewed information submitted in support of those

comments. In general, some of the major comments suggested, and

provided data on, the following:

(a) Additional data from actual decommissionings should be included

that would consider variations in site contamination characteristics,

including the concentration and volume of contamination and the profile

of the contamination with depth;

(b) Reevaluation of remediation and survey costs should be

conducted, including consideration of variation in waste burial

charges, remediation methods, and survey procedures;

(c) Separate analyses of the cost-effectiveness of soil removal and

building removal should be performed. A commenter illustrated that

separate analyses would clarify differences between costs and impacts

of cleanup of soils and structures that were not obvious in the Draft

GEIS. Commenters also suggested deleting the ``knee-in-curve'' approach

as not clearly illustrating the information regarding costs and impacts

for cleanup of both soils and structures; and

(d) Potential alternative uses of the site lands and facilities

should be considered to provide a higher level of realism in the dose

estimates. These alternative uses can result in variations in direct

exposure and ingestion pathways and in the number of persons exposed

and thus the collective exposure and net health effects.

Based on the comments and information received, additional

information has been added to the GEIS. Data on contamination submitted

by the commenters were reviewed, compared with other existing data,

including that in the Draft GEIS, and incorporated into the Final GEIS

as appropriate. The Final GEIS thus considers additional soil

contamination data as well as soil and building contamination

comparable to that in the draft GEIS. It also considers the range of

disposal costs and survey methods and costs presented in the Draft

GEIS, as well as those suggested in the comments. The Commission agrees

with the commenters that consideration of soil and buildings separately

can provide added information. Thus the Final GEIS has used the

analysis of the Draft GEIS, that contained the data for performing

separate analyses, and has presented the data more clearly in revised

tables. In addition, the ``knee-in-curve'' figures, that provided

general information about behavior of costs and impacts associated with

cleanup, have been replaced with a simpler set of tables similar to the

presentation in the Draft Regulatory Analysis, in Tables 6.1 and 6.2.

In response to comments suggesting that the Final GEIS consider more

realistic post decommissioning uses, the Final GEIS considers a range

of possible uses, including residential farming, denser residential

use, industrial/office use, and higher building occupancy rates.

Given the range of possible parameters, scenarios, and site-

specific situations, the Final GEIS concludes, in a manner similar to

the Draft GEIS, that there is a wide range of cost-benefit results

among the different facilities and within facility types and that there

is no unique algorithm that decisively produces an ALARA result for all

facilities. Despite these difficulties, the Final GEIS and RA provide

the following results that can be helpful for gaining insight in making

decisions regarding ALARA, the decommissioning objective, and whether

restricted use should be permitted:

(a) Achieving, as an objective of ALARA, reduction to preexisting

background. The objective of returning a site to preexisting background

conditions is consistent with the concept of returning a site to the

radiological condition that existed before its use. However, the

question of whether this objective, as a goal of ALARA, should be

codified by rule depends on a variety of factors,

[[Page 39065]]

including cost, practicality (e.g., measurability) of achieving the

objective, and the type of facility involved.

As noted in Section 7.3.1 of the Draft GEIS, decommissioning is

expected to be relatively easy for a certain class of non-fuel-cycle

nuclear facilities (i.e., those that use either sealed radioactive

sources or small amounts of short-lived nuclides), because there is

usually no residual radioactive contamination to be cleaned up and

disposed of, or, if there is any, it should be localized or it can be

quickly reduced to low levels by radioactive decay. Decommissioning

operations will generally consist of disposing of a sealed source or

allowing licensed short-lived nuclides to decay in storage, submitting

Form NRC-314, and demonstrating (either through radiation survey or

other means such as calculation of reduction of the contamination level

by radioactive decay) compliance with the requirements for license

termination. Because contamination at these facilities is expected to

be negligible or to decay to negligible levels in a short time,

achieving an objective of returning these facilities to background

would not appear to be an unreasonable objective of ALARA.

However, in general, for those nuclear facilities where

contamination exists in soils and/or structures, the Final GEIS

analysis shows, in a manner similar to the Draft GEIS, that achieving

an ALARA decommissioning objective of ``return to a preexisting

background'' is not reasonable as it may result in net detriment or

because cost cannot be justified because detriments and costs

associated with remediation and surveys tend to increase significantly

at low levels, while risk reduction from radiation exposure from

criteria near background is marginal.

(b) ALARA analysis for soil contamination. Soil contamination can

exist onsite at nuclear facilities because of a variety of reasons

including spills or leaks, deposition from airborne effluents, or

burial or placement of system byproducts or other waste materials in

onsite soils. The level of soil contamination for the large majority of

NRC-licensed facilities (>6000) is either zero or minimal (it is

expected that the large majority of Agreement State licensees would

have similar contamination). Certain facilities (e.g., power reactors,

fuel facilities, industrial facilities) may have greater soil

contamination, and certain of these facilities have been identified as

having extensive soil contamination (albeit generally at relatively low

levels) and have been placed in the Site Decommissioning Management

Plan (SDMP) (see NUREG-1444, October 1993). These sites warrant

specific NRC attention regarding their decommissioning.

For the generic scenarios considered, the results of the Final GEIS

evaluation indicate that there is a wide range of possible cost-benefit

ratios. Nevertheless, there appears to be a strong indication that

removing and transporting soil to waste burial facilities to achieve

exposure levels at the site at or below a 0.25 mSv/y (25 mrem/y)

unrestricted use dose criterion is generally not cost-effective when

evaluated using NRC's regulatory analysis framework presented in NUREG/

BR-0058 and NUREG-1530. Further, even for a range of cleanup levels at

or above a 0.25 mSv/y (25 mrem/y) criterion, there can also be cases

where costs are unreasonable in comparison to benefits realized.

(c) ALARA analysis for structures containing contamination.

Building floors and walls at nuclear facilities can be contaminated for

a variety of reasons, including system leaks, spills, tracking, and

activation. The large majority of NRC licensed facilities have zero or

limited building contamination. Generally, contamination does not

penetrate the surface of concrete and can be readily removed by water

jets or concrete scabbling. If the building is reused for some new

industrial, office, or other use after license termination, persons can

be in direct contact with the decommissioned floors and walls.

For the range of generic situations considered, the results of the

Final GEIS evaluation indicate that there is a wide range of possible

cost-benefit ratios. It appears that cleanup of concrete to levels at

or below 0.25 mSv/y (25 mrem/y) can be cost effective, depending on the

number of individuals projected to be occupying a building, when using

the decisionmaking guidelines of NUREG/CR-0058 and NUREG-1530.

A.2.3 Conclusions regarding overall approach to license

termination and unrestricted dose criterion. Based on the above

discussion, the Commission has concluded that the overall license

termination approach of this final rule should include:

An unrestricted use dose criterion of 0.25 mSv/y (25 mrem/

y) applicable on a generic basis without site-specific analysis;

Considerations regarding ALARA, including the

decommissioning objective;

A tiered approach of unrestricted use and allowing

restricted use if certain provisions are met; and

Codifying alternate criteria in the rule to alleviate the

need for exemptions in certain difficult site-specific circumstances.

The reasons for these conclusions are discussed in the following

subsections.

A.2.3.1 An unrestricted use dose criterion of 0.25 mSv/y (25 mrem/

y) applicable on a generic basis without site-specific analysis. For

the reasons described above, the Commission is establishing a dose of

0.25 mSv/y (25 mrem/y) as an acceptable criterion for release of any

site for unrestricted use without further analysis of the potential for

exposures from other man-made sources excluding medical. The Commission

concludes that a generic dose constraint or limitation for

decommissioning sources of 0.25 mSv/y (25 mrem/y) for unrestricted use

of a site appears reasonable from the standpoint of providing a

sufficient and ample margin of safety in protection of public health

and safety. This conclusion reflects the Commission's judgment that the

likelihood of individuals being exposed to multiple sources with

cumulative doses approaching 1 mSv/y (100 mrem/y) is quite small. This

conclusion is based on consideration of the kinds of occupancy times

generally expected for the average member of the critical group at

typical decommissioned sites and the low probability that individuals

could realistically be expected to experience significant exposures to

other sources, particularly with a cumulative effect approaching 1 mSv/

y (100 mrem/y). In view of these perspectives, the Commission believes

that a generic dose criterion of 0.25 mSv/y (25 mrem/y) provides a

sufficient and ample, although not necessary, margin to protect the

public.

A.2.3.2 Considerations regarding ALARA, including the

decommissioning objective. The ICRP, NCRP, and draft FRG all suggest

that, in addition to setting a constraint value for an individual

source, achievement of exposures that are ALARA should continue to be

considered as a means of optimization. For this reason and because the

generic analysis of the Final GEIS tends to indicate that achieving

doses below 0.25 mSv/y (25 mrem/y) may be ALARA for some cases, the

rule continues to require an ALARA evaluation below the unrestricted

dose criterion.

It would be useful if the analyses in the Final GEIS could have

arrived at a value of ALARA for all facilities or classes of facilities

so that no further estimate of ALARA would be needed in site-specific

cases. However, it was not feasible for the Commission to use the

[[Page 39066]]

results of the Final GEIS to determine a generic optimum ALARA dose

because of the variety of possible scenarios, assumptions, parameters,

and site-specific conditions that could exist. Nevertheless, the Final

GEIS does contain information about certain trends in impacts and costs

of decommissioning that can be useful in preparation of regulatory

guidance supporting site-specific ALARA provisions. In particular, it

is clear from the Final GEIS that removal of soil to achieve dose

levels below the 0.25 mSv/y (25 mrem/y) dose criterion is generally

unlikely to be cost-effective, whereas it may be for concrete in

certain cases. It is also clear that removal of soil or concrete to

``pre-existing background'' levels is generally not cost effective.

Thus, for those facilities where soil or building contamination

exists, it would be extremely difficult to demonstrate that an

objective of return to background had been achieved. Therefore it is

concluded, as was previously done in the proposed rule, that for these

sites use of the unrestricted dose criterion with appropriate ALARA

considerations would be appropriate. For restricted use, the Final GEIS

suggests that although removal of soil to achieve dose levels below

0.25 mSv/y (25 mrem/y) may not be cost-effective, other simple and less

costly measures to restrict the use of the site such as fencing or

barrier plantings may be cost-effective and should be considered as

part of the ALARA process. For groundwater contamination, as discussed

later in Section IV.D, ALARA considerations should consider the

situation where populations use groundwater plumes from a facility as

drinking water.

In actual situations, it is likely that, even if no specific

analysis of ALARA were required for soil and concrete removal, the

actual dose will be reduced to below 0.25 mSv/y (25 mrem/y) because of

the nature of the removal process. For example, the process of

scabbling of concrete removes a layer of concrete that likely contains

a large fraction of the remaining radioactivity, and the process of

soil excavation is a gross removal process that also is likely to

remove large fractions of the radioactivity.

To clarify the concept of ALARA, the regulatory guidance to be

prepared will refer to the existing requirements of Secs. 20.1003 and

20.1101 where ALARA is defined to include considerations of the state

of technology, economics of improvement in relation to the state of

technology, economics of improvements in relation to benefits to the

public health and safety, and other societal and socio-economic

considerations. Although preparation of guidance is in a preliminary

stage, it is anticipated that this guidance would likely indicate that

ALARA during decommissioning should include typical good practice

efforts (e.g., floor and wall washing, removal of readily removable

radioactivity in buildings or in soil areas), as well as ALARA analyses

for buildings to levels less than 0.25 mSv/y (25 mrem/y) based on the

number of individuals projected to be occupying the building, but that

an ALARA analysis below 0.25 mSv/y (25 mrem/y) for soil removal would

not need to be done. It is expected that use of the dose criterion of

the final rule and the regulatory guidance on ALARA would achieve

consistency with current practices where it is cost-effective to do so.

The Commission also believes that, in any ALARA analysis conducted

to support decisions about site cleanup, all reasonably expected

benefits and detriments resulting from the cleanup activities should be

taken into consideration in balancing costs and benefits. An example of

such a detriment would be transportation deaths that might occur as

contaminated waste is transported away from the site.

A.2.3.3 Tiered approach of unrestricted use and allowing

restricted use if certain provisions are met. It appears reasonable to

retain the basic structure presented in the proposed rule and allow for

both unrestricted and restricted use of sites. Allowance of restricted

use is appropriate because there can be situations where restricting

site use can provide protection of public health and safety by reducing

the TEDE to 0.25 mSv/y (25 mrem/y) in a more reasonable and cost-

effective manner than unrestricted use. This protection is afforded by

limiting the time period that an individual spends onsite or by

restricting agricultural or drinking water use. For many facilities,

the time period needed for restrictions can be fairly short; i.e., long

enough to allow radioactive decay to reduce radioactivity to levels

that permit release for unrestricted use. For example, at reactors,

manufacturing facilities, or broad scope licensees, where the principal

contaminants can have half-lives of 5-30 years (e.g., Co-60, Cs-137),

restricting site use for about 10-60 years can result in achieving

unrestricted use levels. Thus, it continues to be appropriate to allow

restricted use if accompanied by provisions that ensure the

restrictions remain in place to achieve a dose of 0.25 mSv/y (25 mrem/

y). Considerations for assuring that restrictions remain in place and

that public health and safety is protected are discussed further in

Section IV.B. In addition, because restricting site use can affect the

local community, Sections IV.B and IV.E indicate that licensees should

seek advice from such affected parties and, in seeking that advice,

provide for: (1) Participation by representatives of a broad cross

section of community interests, (2) an opportunity for a comprehensive,

collective discussion on the issues, and (3) a publicly available

summary of the results of all such discussions.

A.2.3.4 Codifying alternate site-specific criteria in the rule to

alleviate the need for exemptions in special circumstances. The

preamble to the proposed rule recognized that there could be certain

difficult sites presenting unique decommissioning problems where

licensees would seek exemptions from the rule's requirements. However,

as noted in Section IV.C below, because the Commission finds that it

would be preferable to deal with those facilities under the aegis of a

rule rather than as exemptions, the Commission has included in its

final rule a provision under which the Commission may terminate a

license using alternate criteria in certain specific cases. In allowing

such a provision, it is nevertheless the Commission's judgment that:

(1) It is generally preferable for sites to reduce doses to 0.25 mSv/y

(25 mrem/y) due to the uncertainty over the number of sources where

nuclides may be present for a long time-frame; (2) the large majority

of sites can reduce doses to less than 0.25 mSv/y (25 mrem/y) through

restricting site use; and (3) permitting large numbers of licensees to

propose alternate criteria is not advisable because it would be

contrary to one of the goals of this rulemaking to achieve more

efficient and consistent licensing actions. Therefore, the Commission

has limited the conditions under which a licensee could apply for

alternate criteria and expects that its use would be rare. A licensee

proposing to terminate a license at a site-specific level above 0.25

mSv/y (25 mrem/y) would be required to:

(a) Provide assurance that public health and safety would continue

to be protected by means of a complete and comprehensive analysis of

possible sources of exposure so that it is unlikely that the dose from

all potential man-made sources combined, other than medical, would

exceed the 1 mSv/y (100 mrem/y) public dose limit of 10 CFR part 20;

[[Page 39067]]

(b) Employ, to the extent practical, restrictions on site use for

minimizing exposures at the site using the provisions for restricted

use outlined in Section IV.B, below; and

(c) Reduce doses to ALARA levels.

(d) Seek advice from affected parties regarding this approach and,

in seeking such advice, provide for: (1) Participation by

representatives of a broad cross section of community interests who may

be affected by the decommissioning, (2) an opportunity for a

comprehensive, collective discussion on the issues, and (3) a publicly

available summary of the results of all such discussions, and

(e) Obtain the specific approval of the Commission. The Commission

will make its decision on allowing use of alternate criteria in

specific cases only after consideration of the NRC staff's

recommendations that will address any comments provided by the

Environmental Protection Agency and any public comments submitted

regarding the decommissioning or license termination plan.

A description of these circumstances and potential resolutions on a

site-specific basis, short of exempting a facility from this rule,

appears in Section IV.C.

If license termination still cannot be met even under alternate

criteria, it may be necessary for the site (or a portion thereof) to be

kept under license in order to ensure that exposures to the public are

appropriately monitored. The evaluation of the maintenance of a site or

a portion thereof under a continued license is outside the scope of

this rulemaking because this rule contains provisions addressing

radiological criteria that apply to termination of a license.

A.2.4 Summary of rule revisions on unrestricted use and plans for

implementation. The final rule has been modified to indicate that the

dose criterion for unrestricted use is 0.25 mSv/y (25 mrem/y).

Requirements that a licensee consider how the ALARA requirements of 10

CFR part 20 can be applied to achieve a dose below the dose criterion

have been retained.

Regulatory guidance is planned on how to meet these existing ALARA

requirements. In addition, to assist in implementing the dose

criterion, regulatory guidance will also be issued to provide clear

guidance to licensees on how to demonstrate compliance with the dose

criterion by using either:

(a) Screening analyses that use relatively simple approaches for

demonstrating compliance; or

(b) Site-specific modeling for more complex sites and

contamination. Regulatory guidance will also be issued to provide clear

guidance on statistical tests and survey methods available to licensees

for demonstrating compliance.

The Commission is retaining the distinguishable from background

provision in the final rule to allow release of sites when residual

contamination, if any, cannot be distinguished from background on a

statistical basis using proper survey techniques. In particular, at the

levels of the dose criterion, concentrations of uranium and thorium in

soil are extremely low and may not be distinguishable from background

on a statistical basis even when using proper survey techniques.

A.3 General Comments on the Dose Criterion

A.3.1 Comments. Comments were received on the 0.15 mSv/y (15 mrem/

y) dose criterion that questioned its effect on disposal capacity, the

relationship to naturally occurring radioactive material (NORM), and

the issue of fixing the responsibility for cleanup.

A.3.2 Response. Some commenters were concerned about the effect of

0.15 mSv/y (15 mrem/y) criterion on disposal capacity. As noted in

Section IV.A.2.2, several of the assumptions, models, and approaches in

the GEIS and Regulatory Analysis have been revised to include

additional data and alternate waste disposal costs. A complete

discussion of these revisions and analysis of disposal capacity is in

the Final GEIS and the Regulatory Analysis.

Some commenters questioned the relationship of this rule to NORM.

In response, the criteria of this rule apply to residual radioactivity

from activities under a licensee's control and not to naturally

occurring background radiation. Issues related to NRC-licensed sites

containing materials that occur in nature are discussed in Sections

IV.B and IV.C.

There is a wide variety of sites containing NORM subject to EPA

jurisdiction and not licensed by the NRC. The extent to which criteria

in this rule would apply to these sites would be based on a separate

evaluation although certain aspects of the rule, for example control of

sites with restrictions imposed, could be similar. For further

discussion, see also Section IV.G.6.

With regard to responsibility for cleanup, several commenters

stated that the 0.15 mSv/y (15 mrem/y) limit is too high because

licensees should have to clean up contamination that they created.

Because these are final licensing actions before releasing the site to

the public, they stated that only a lower criterion such as return to

background would adequately protect the public. In response, the NRC

agrees with the need to fix responsibility for decommissioning of

licensed sites. The planning and financial assurance requirements

adopted June 27, 1988 (53 FR 24018), recognized the responsibility of

licensees to plan for the cleanup of their sites and to provide

adequate financial assurance for that cleanup. Similarly in this

regulation, licensees are not permitted to release a facility for

unrestricted or restricted public use unless the dose criteria

stipulated in the rule have been satisfied. As noted in the Final GEIS,

further cleanup to levels such as background is not generally

reasonable because it results in very little additional health benefit

with very large costs incurred and could result in an increase in the

overall risk associated with cleanup of a particular site when all

factors (e.g., estimated fatalities due to transportation accidents

during transport of radioactive wastes) are considered. Therefore, for

the reasons discussed in Section IV.A.2.2, the criteria in the final

rule are considered appropriate to protect public health and safety and

to permit release of the sites and termination of license.

A.4 Average Member of the Critical Group

A.4.1 Comment. Some commenters agreed with provisions of the rule

that would apply the dose limit to an average member of the critical

group rather than to the ``reasonably maximally exposed (RME)

individual'' because it is consistent with ICRP and provides an

appropriate protection standard. Other commenters objected to use of

``an average member of the critical group.'' These commenters favored

applying the dose limit to the most exposed person rather than to an

average person. They asserted that this would be consistent with the

approach used for other licensed activities and environmental

protection.

A.4.2 Response. Section 20.1003 of the proposed rule defined the

term ``critical group'' as the group of individuals reasonably expected

to receive the greatest exposure to residual radioactivity for any

applicable set of circumstances. For example, if a site were released

for unrestricted use, the critical group would be the group of

individuals reasonably expected to be the most highly exposed

considering all reasonable potential future uses of the site. As noted

in the preamble to the proposed rule (at 59 FR 43218; August 22, 1994),

NUREG/CR- 5512 defines the critical group as an individual or

relatively homogeneously exposed

[[Page 39068]]

group expected to receive the highest exposure within the assumptions

of a particular scenario and the dosimetric methods of 10 CFR part 20.

The average member of the critical group is an individual who is

assumed to represent the most likely exposure scenario based on

prudently conservative exposure assumptions and parameter values within

model calculations. For example, the critical group for the building

occupancy scenario can be the group of regular employees working in a

building that has been decontaminated. If a site were converted to

residential use, the critical group could be persons whose occupations

involve resident farming at the site, not an average of all residents

on the site.

Although the terms ``critical group'' and ``average member'' are

new terms in NRC regulations, they are consistent with ICRP practice of

defining and using a critical group when assessing individual public

dose from low levels of radioactivity similar to those expected from a

decommissioned site. ICRP recommends that such analyses should consider

exposure to individuals representative of those expected to receive the

highest dose using cautious but reasonable assumptions. This approach

has been adopted in the proposed FRG and is also consistent with the

recommendations of the National Academy of Sciences on the Yucca

Mountain Standards (August 1995).

A.4.3 Summary of rule revisions. Based on this discussion, the

proposed rule has not been changed.

B. Criteria for Restricted Use (Proposed Rule Secs. 20.1402(d) and

20.1405)

B.1 Proposed Rule Content

As described in the proposed rulemaking and restated in Section

IV.A.2.2, there are potential situations under which termination of a

license under restricted conditions could be used in the

decommissioning of a site. Proposed Sec. 20.1405 indicated that a site

would be considered acceptable for license termination under restricted

conditions if the licensee:

(1) Made provisions for institutional controls that provide

reasonable assurance that the TEDE to the average member of the

critical group would not exceed the unrestricted use dose criterion;

(2) Reduced residual radioactivity at the site so that, if the

controls were no longer in effect, there is reasonable assurance that

the TEDE would not exceed 1 mSv/y (100 mrem/y);

(3) Demonstrated that complying with the unrestricted use dose

criterion would be prohibitively expensive, result in net public or

environmental harm, or not be technically achievable;

(4) Obtained advice on the restrictions from the affected community

by convening a site-specific advisory board, and;

(5) Provided financial assurance to ensure the controls remain in

place.

B.2 Comments on Acceptability of Restricted Use for Decommissioned

Sites

A variety of comments was received on the restricted use option.

The major comment categories are listed below. Although the comment

categories address somewhat separate issues, they are listed and

answered together to develop a unified response on the issue of

restricted use.

B.2.1 The general concept of restricted use. Some commenters

agreed with the proposal to permit restricted use of decommissioned

sites because it may be financially impractical to reach unrestricted

levels, especially if health and safety considerations do not warrant

it and because restricted release allows realistic land uses to be

considered. Some commenters opposed the concept of any planned

restricted release of decommissioned sites because of concerns over the

durability and effectiveness of institutional controls, and because

license termination should be a final action with full licensee

responsibility for site disposition and cleanup costs previously

considered.

B.2.2 The need for licensees to demonstrate that restricted use is

appropriate for their sites. In allowing restricted use, the proposed

rule would have required licensees to demonstrate the appropriateness

of restricting site use for their particular situation by showing that

it would be ``prohibitively expensive,'' ``technically unachievable,''

or cause ``net public or environmental harm'' to achieve unrestricted

use (proposed Sec. 20.1405(a)). Some commenters supported the

restricted use of sites but indicated that the proposed requirements

for demonstrating its appropriateness were unreasonably restrictive.

These commenters stated that the provisions in proposed Sec. 20.1405(a)

were structured so narrowly that few sites would be able to qualify for

license termination under restricted conditions. Commenters stated that

these terms should be explained, deleted, or replaced with a less

onerous requirement allowing restricted use if justified by an ALARA

analysis or if there were continued ownership and industrial use of the

site.

B.2.3 The durability of institutional controls. Several commenters

opposed or expressed concern about the ability of institutional

controls to provide needed protection of public health and safety at

decommissioned sites because they cannot be enforced indefinitely into

the future and can be struck down or become ineffective. Other

commenters favored reliance on more flexible institutional controls and

recommended that the rule should not assume that they will eventually

fail. Approaches for using institutional controls were suggested

including Federal Government ownership of sites or legislative

solutions for complex sites similar to the National Waste Policy Act

(NWPA) of 1982.

B.2.4 The 1 mSv/y (100 mrem/y) cap if institutional controls fail.

Some commenters stated that the proposed 1 mSv/y (100 mrem/y)

restriction is unreasonably low when used to assess the worst case

scenario. They recommended that the rule should not stipulate that a

licensee must assume that all institutional controls will eventually

fail. Alternatively, they recommended that a 5 mSv/y (500 mrem/y)

backup limit be allowed if restrictions such as institutional controls

or engineered features fail. The commenters believed that a 5 mSv/y

(500 mrem/y) limit is consistent with other regulations, since

residential use of an industrial site is unlikely, and failure of

controls is speculative. Several commenters objected to the last

sentence of proposed Sec. 20.1405(d), that stated that licensees may

not assume any benefits from an earthen cover, other earthen barriers,

or engineered controls in complying with the 1 mSv/y (100 mrem/y) cap

unless specifically authorized by the Commission and recommended that

the sentence be deleted. Some commenters recommended that the rule

specify the extent to which licensees may take credit for engineered

barriers. Other commenters stated that 1 mSv/y (100 mrem/y) is too high

and that a lower value (e.g., 0.15, 0.3, 0.5, 0.75 mSv/y (15, 30, 50,

or 75 mrem/y)) should be applied because institutional controls are

uncertain, concerns over health effects would exist, and doses in

excess of 40 CFR Part 190 are unreasonable. Some commenters agreed with

establishing a maximum TEDE of 1 mSv/y (100 mrem/y) in the event

institutional controls are no longer in effect.

B.2.5 Financial assurance for restricted use. Some commenters

questioned the need for financial assurance provisions and suggested

that more flexibility be provided for

[[Page 39069]]

licensees. Other commenters questioned whether the financial assurance

provisions were adequate. One commenter stated that there should be

more detail on financial assurance provided in the rule.

B.3 Response

B.3.1 The general concept of restricted use. Current NRC

regulations pertaining to decommissioning, issued on June 27, 1988 (53

FR 24018), do not contain provisions for release of a facility for

restricted use but limit a licensee's options in decommissioning to

release of a facility for unrestricted use. Experience with

decommissioning of facilities since 1988 has indicated that for certain

facilities, achieving unrestricted use might not be appropriate because

there may be net public or environmental harm in achieving unrestricted

use, or because expected future use of the site would likely preclude

unrestricted use, or because the cost of site cleanup and waste

disposal to achieve unrestricted use is excessive compared to achieving

the same dose criterion by restricting use of the site and eliminating

exposure pathways. The input received from the rulemaking workshops

held from January through May 1993 confirmed this experience and

indicated that restricted use of a facility, if properly designed and

if proper controls were in place, was a reasonable means for

terminating licenses at certain facilities.

Current NRC-licensed sites that might request restricted use are

largely industrial sites. It is reasonable for them to remain

industrial because of their locations and previous siting

considerations. Nevertheless, there may be instances where, if a site

had high cultural value, such considerations would be presented as part

of the public input that is part of the process of restricted use (see

Section IV.E) and could be considered as a socioeconomic effect under

the ALARA process.

The proposed rule thus provided for both unrestricted and

restricted use of sites. Both the Draft and Final GEIS provide

discussions of the environmental impact of decommissioning for the

reference sites and of the costs related to decommissioning. From this

it may be concluded that release of certain facilities for restricted

use is an appropriate option assuming the presence of the specific

provisions described below to ensure that appropriate controls are in

place so that the restrictions on use remain in effect.

B.3.2 The need for licensees to demonstrate that restricted use is

appropriate for their sites. As described in Section IV.B.3.1, the

proposed rule allowed restricted use because release of a site under

restricted conditions can be an appropriate method of decommissioning

from both health and safety, and cost-benefit bases, especially for

certain facilities with soil contamination. Nevertheless it did so

under the philosophy (stated in Sec. 20.1402(d)) that, in general,

termination of a license for unrestricted use is preferable because it

requires no additional precautions or limitations on use of the site

after licensing control ceases, in particular for those sites with

long-lived nuclides. In addition, there may be societal or economic

benefits related to future value of the unrestricted use of the land to

the community. Thus, Sec. 20.1405(a) of the proposed rule stated the

provisions the NRC would consider in evaluating a request for

termination of a site under restricted conditions, including that it is

``prohibitively expensive'' or there is ``net public or environmental

harm'' in achieving unrestricted release.

The Commission continues to believe that unrestricted use is

generally preferable for the reasons noted. However, the NRC has

reexamined the provisions for allowing restricted use because of the

potential benefits. In explaining the provision of ``prohibitive''

cost, the proposed rule noted (at 59 FR 43220) that costs to achieve

unrestricted use may be ``excessive,'' indicating that this means there

may be situations where removal and disposal of large quantities of

material is simply ``not reasonable'' from a cost standpoint.

Consistent with this, the proposed rule noted in Sec. 20.1402(d) that

the Commission expected licensees to make every reasonable effort to

achieve unrestricted release. The specific cost that would be

considered excessive, not reasonable, or prohibitive was not included

in the proposed rule. This value depends on costs of unrestricted and

restricted use, and on an evaluation of these alternatives using the

regulatory analysis framework presented in NUREG/BR-0058 and NUREG-

1530. NUREG/BR-0058 provides a decisionmaking tool for deciding between

regulatory alternatives. As noted in the discussion below, restricted

use with appropriate institutional controls (accompanied by sufficient

provisions for ensuring their effectiveness) can provide protection of

public health and safety because the dose level will be reduced to the

same 0.25 mSv/y (25 mrem/y) criterion as for unrestricted use. Thus,

use of the guidelines in NUREG/BR-0058 is appropriate for determining

whether restricted use should be permitted. Therefore, the Commission

has modified the rule to incorporate an ALARA standard rather than

prohibitive costs as the basis for selecting restricted use. To support

a request for restricted use, a licensee would perform an ALARA

analysis of the risks and benefits of all viable alternatives and

include consideration of any detriments. This could include estimated

fatalities from transportation accidents that might occur as the result

of transport of wastes from cleanup activities, and societal and

socioeconomic considerations such as the potential value to the

community of unrestricted use of the land.

The proposed rule also noted that because the net public or

environmental damage through removal, transport, and disposal of

materials could be larger than the benefit in dose reduction at the

site, it may be more reasonable for the material to remain onsite. The

Final GEIS illustrates when it may be inappropriate, when considering

such relative impacts, to completely remediate a site to an

unrestricted level that assumes activities such as farming or

residence, and then, as would be the case for a number of currently

licensed sites, actually employ a commercial or industrial use that

would eliminate significant pathways of exposure. Specific examples

include reactors or other materials facilities where the dose is

controlled by relatively short-lived nuclides (e.g., Co-60 and Cs-137

with half-lives of 5.3 and 30 years, respectively) that will decay to

unrestricted dose levels in a finite time period of institutional

control (e.g., about 10-60 years). For these facilities, there may be

net public or environmental harm from removing and transporting soil to

achieve unrestricted use compared to restricting use for a period of

time associated with a reasonable decay period (see the Final GEIS,

Chapter 6). Thus, the consideration of potential detriments from

cleanup activities and the possibility of net harm have been retained

in the final rule. Both terms, net public harm and net environmental

harm, are retained in the final rule to indicate that a licensee's

evaluation should consider the radiological and nonradiological impacts

of decommissioning on persons who may be impacted, as well as the

potential impact on ecological systems from decommissioning activities.

B.3.3 The durability of institutional controls. As described in

Sections IV.B.3.1 and IV.B.3.2, use of restrictions that employ

institutional controls appears appropriate in specific

[[Page 39070]]

situations. However, an important question raised in the public

comments relates to the durability of institutional controls, i.e.,

whether the controls provide reasonable assurance that the exposure

will be limited to the dose criterion in the rule over the periods in

question.

For many types of decommissioned sites released under restricted

conditions where potential doses to an individual are caused by

relatively short-lived nuclides, the radiation exposure that could

potentially be received were controls to fail will gradually decrease

to below the unrestricted dose criterion so the restrictions on use

would no longer be necessary. Examples of facilities with nuclides of

this type include reactors or materials facilities for which the

principal dose contributing nuclides after decommissioning are Co-60 or

Cs-137 (half-lives 5.3 and 30 years, respectively), or other similarly

short-lived nuclides. The Commission has considered the effectiveness

of institutional controls for up to 100 years in similar contexts such

as low-level waste disposal sites. Because decommissioned facilities

will have minimal contamination compared to large volumes buried at

low-level disposal sites, the Commission believes that institutional

controls using relatively simple deed restrictions can provide

reasonable assurance that the TEDE will be below the 0.25 mSv/y (25

mrem/y) dose criterion with restrictions in place.

In a limited number of cases, in particular those involving large

quantities of uranium and thorium contamination, the presence of long-

lived nuclides at decommissioned sites will continue the potential for

radiation exposure beyond the 100-year period. More stringent

institutional controls will be required in these situations, such as

legally enforceable deed restrictions and/or controls backed up by

State and local government control or ownership, engineered barriers,

and Federal ownership, as appropriate. Federal control is authorized

under Section 151(b) of the National Waste Policy Act (NWPA). Requiring

absolute proof that such controls would endure over long periods of

time would be difficult, and the Commission does not intend to require

this of licensees. Rather, institutional controls should be established

by the licensee with the objective of lasting 1000 years to be

consistent with the time-frame used for calculations (and discussed in

Section IV.F.7). Having done this, the licensee would be expected to

demonstrate that the institutional controls could reasonably be

expected to be effective into the foreseeable future.

To provide added assurance that the public will be protected, the

final rule incorporates provisions (Sec. 20.1405(c)) for financial

assurance to ensure that the controls remain in place and are effective

over the period needed. With these provisions, the Commission believes

that the use of reliable institutional controls is appropriate and that

these controls will provide a high level of assurance that doses will

not exceed the dose criterion for unrestricted use.

Although the Commission believes that failure of active and passive

institutional controls with the appropriate provisions in place will be

rare, it recognizes that it is not possible to preclude the failure of

controls. Therefore, in the proposed rule, the Commission included a

requirement that remediation be conducted so that there would be a

maximum value (``cap'') on the TEDE from residual radioactivity if the

institutional controls were no longer effective in limiting the

possible scenarios or pathways of exposure. The cap included in the

proposed rule was 1 mSv/y (100 mrem/y), which is the public dose limit

codified in 10 CFR part 20. Public comments on the proposed rule

suggested other values for the cap, both higher than and lower than the

proposed value. The analysis of those comments, and their potential

effect on the institutional controls used, is discussed in Section

IV.B.3.4.

The Commission believes, based on the discussion in this section on

the viability of controls and on the provisions for financial assurance

and for a ``cap,'' described in Sections IV.B.3.4 and IV.B.3.5, that

the provision for restricted use and institutional controls will

provide a high level of assurance that public health and safety will be

protected. Licensees seeking restricted use will be required to

demonstrate, to NRC's satisfaction, that the institutional controls

they propose are comparable to those discussed above, are legally

enforceable, and are backed by financial assurance. Licensees will also

be required to demonstrate that the cap will be met. The Commission

believes that the provision for restricted use should be retained in

the final rule.

B.3.4 The 1 mSv/y (100 mrem/y) cap if institutional controls fail.

A ``cap'' of 1 mSv/y (100 mrem/y), corresponding to the public dose

limit, was proposed in Sec. 20.1405(d) of the proposed rule. Various

possible ``cap'' values were suggested by the commenters, both lower

than (e.g., values such as 0.15, 0.3, or 0.85 Sv/y (15, 30, or 85 mrem/

y)) or higher than the proposed cap.

The Commission has reviewed the comments suggesting that the

specific cap value be set at levels other than 1 mSv/y (100 mrem/y).

The rationale for setting the cap at 1 mSv/y (100 mrem/y) presented in

the proposed rule (at 59 FR 43221) was that the value of the cap

coincides with NRC's public dose limit of 10 CFR Part 20. This value

was premised on the assumption that circumstances could develop in

which the restrictions might no longer be effective in limiting the

exposure scenarios or pathways. Although this occurrence need not be

assumed for planning purposes, a safety net is needed to prevent

exposures in excess of the public dose limits. A cap using the public

dose limits would provide an additional level of protection in the

unlikely event that restrictions were not effective. Although, as noted

in Section IV.A.2, the Commission has used a fraction of the public

dose limit in setting the 0.25 mSv/y (25 mrem/y) dose limit for

decommissioning, it indicated in the proposed rule that, in the case of

the ``cap'' or ``safety net,'' it did not believe that fractionation,

i.e., setting a cap value less than 1 mSv/y (100 mrem/y), would be

necessary because:

(a) The 1 mSv/y (100 mrem/y) cap is less than values suggested in

the proposed FRG for members of the public in unusual circumstances and

less than values used for other types of facilities where some type of

institutional control is used;

(b) The Commission believes that failure of all site restrictions

at decommissioned sites is a highly unlikely event; and

(c) Radioactive decay for relatively short-lived nuclides (e.g.,

Co-60 and Cs-137), that are the principal dose contributing

contaminants at the large majority of NRC licensed facilities, will

actually reduce the dose level over a period of time for most sites

that will provide an additional margin of safety equivalent to

fractionation of the limit.

The rationale for setting a cap value at 1 mSv/y (100 mrem/y)

continues to appear appropriate. In addition, setting a cap at a lower

value does not appear warranted because: (1) It appears arbitrary to

assume that the same person would be an average member of the critical

group both near a facility where there was failure of controls and near

another decommissioned facility; and (2) the failure of restrictions

would be infrequent and therefore it is likely that the overall

lifetime risk to the critical group would still be maintained at levels

comparable to unrestricted use

[[Page 39071]]

while providing a more cost-effective use of resources.

Although the Commission did not fractionate the cap, it did include

in the proposed rule, and continues to include in the final rule, a

provision that would require exposures to be below the cap to a degree

that is ALARA. The purpose of this requirement is that licensees would

not simply leave behind contamination corresponding to the value of the

cap but would evaluate the level below the cap that is cost effective

and reduce the contamination to that level. This will provide a

requirement that will effectively fractionate the doses and result in

doses not dissimilar from those suggested by the commenters if it is

cost-effective to do so. This approach is consistent with the current

requirements in 10 CFR part 20.

Based on its experience with sites with difficult contamination

issues, in particular those sites treated in NRC's SDMP, and as

described in the Final GEIS, the Commission anticipates that there may

be sites where compliance with the 1 mSv/y (100 mrem/y) cap could cause

impacts resulting from cleanup to that level (e.g., estimated

industrial or traffic fatalities associated with removing or

transporting waste) that exceed the benefits of averting radiation

exposure (thus causing a net detriment to public health or the

environment) or that diminish the net benefit to where costs of cleanup

would be prohibitive compared to the net benefit. Although the NRC

recognizes that it is always the licensee's responsibility to clean up

the contamination that it has caused, the appropriate course of action

should not result in net public or environmental harm from a cleanup,

and it is not clear that it is beneficial if resources are spent in a

manner prohibitive in relation to other benefits which could be

achieved, or if a licensee is put into a financial position where it

cannot continue to perform the cleanup safely.

Although a cap higher than 1 mSv/y (100 mrem/y) would result in

using a value in excess of the public dose limit in Sec. 20.1301(a),

existing requirements in Sec. 20.1301(c) permit levels up to values of

5 mSv/y (500 mrem/y), provided that a licensee would apply to the

Commission for permission to operate at that level, submit reasons why

it is necessary, and indicate procedures to maintain doses ALARA. The

proposed FRG, Recommendation No. 4, states that the dose from all

sources should not exceed 1 mSv/y (100 mrem/y) although it may be

exceeded temporarily in unusual situations that are not expected to

recur.

Based on this existing requirement, the Commission has incorporated

a specific provision in the final rule under which a licensee could

propose exceeding the 1 mSv/y (100 mrem/y) cap in unusual site-specific

circumstances if, in addition to the normal provisions of restricted

use, it also met the following additional stringent provisions:

(a) A licensee would have to demonstrate that it cannot meet the 1

mSv/y (100 mrem/y) cap because of net public or environmental harm or

prohibitive costs by means of a site-specific evaluation of the issues

associated with complying with the 1 mSv/y (100 mrem/y) cap. The NRC

expects that only a very few facilities (e.g., sites with soil

contaminated with naturally occurring radionuclides in small

radioactivity levels but large volumes, certain SDMP sites) could

provide sufficient rationale for seeking a higher cap. Although the

proposed rule contained a reference to the use of prohibitive cost, it

did not quantify or define these costs beyond noting that they would be

excessive or unreasonable. The Commission believes it appropriate to

consider a prohibitive cost to be one that would be an order of

magnitude greater than that contained as part of the decisionmaking

guidelines in NUREG/BR-0058, although a lower factor may be appropriate

in specific situations when a licensee could become financially

incapable of carrying out decommissioning safely;

(b) Under these circumstances, the licensee would be required to

reduce contamination so doses would be no greater than the 5 mSv/y (500

mrem/y) value currently contained in Sec. 20.1301(a). Also, the actual

dose level to which the licensee would have to clean the site would be

less than that value based on an ALARA evaluation of the site. This

provision is consistent with existing requirements in Sec. 20.1301(c)

that permit levels up to values of 5 mSv/y (500 mrem/y) for specific

cases;

(c) Durable institutional controls must be in place. These controls

could include significant engineered barriers and/or State, local, or

Federal Government control of sites or maintenance of site deed

restrictions so that site access is controlled. Under Section 151(b) of

the NWPA of 1982, the DOE has already been authorized to take

possession of waste disposal sites in certain situations. A similar

provision in Section 151(c) was used as the vehicle to transfer custody

of the Amax site from Amax to DOE;

(d) A licensee would make provisions for a verification of the

continued effectiveness of institutional controls at the site every 5

years after license termination to ensure that the institutional

controls are in place and the restrictions are working, and that there

is financial assurance to reestablish controls if the recheck indicates

otherwise. This 5-year recheck is consistent with 10 CFR Part 20 and

also with the FRG, Recommendation No. 4, that states that in some

unusual situations the 1 mSv/y (100 mrem/y) may be exceeded temporarily

in situations that are not anticipated to recur. It is also consistent

with the approach for institutional controls used in CERCLA that allows

for release of sites without a cap providing there is continuous

checking on the status of the controls.

The NRC would retain the authority to take appropriate action in

those unusual situations when both the 5 mSv/y (500 mrem/y) cap was in

effect and the controls had failed. This action might include oversight

of actions needed to reinstate the controls and any necessary cleanup

and/or monitoring actions.

B.3.5 Financial assurance. As a second provision for ensuring that

the institutional controls provide protection of public health and

safety, financial assurance requirements were included to ensure that

funds will be available to enable an independent third party, including

a governmental custodian of a site, to implement and ensure continued

effectiveness of institutional controls. Some commenters questioned

whether these provisions were necessary while others questioned whether

they went far enough. In response, the Commission continues to believe

the proposed provisions are reasonable and adequate for their purpose.

The provisions are consistent with financial assurance requirements

currently in 10 CFR Parts 30, 40, 50, 61, 70, and 72 which call for

financial assurance to provide funds for decommissioning in cases when

licensees might otherwise be financially unable to remediate a site.

Reference to an independent third party is necessary in the regulations

because after the license is terminated, the licensee may no longer be

the party ensuring the effectiveness of the controls. Because the

purpose of this provision is to provide broad requirements for

financial assurance necessary to ensure that the controls continue to

limit the dose, more specific details are not included in the rule. The

level of detail in the rule is similar to that in other similar NRC

regulations on financial assurance. As requested by a commenter, the

funding provisions include a trust fund (or similar funding mechanism)

for

[[Page 39072]]

surveillance and enforcement of the institutional controls. The

financial assurance requirements must be in place before the license is

terminated and be flexible enough to allow for the necessary site-

specific details.

B.4 Summary of Rule Revisions on Restricted Use

Based on the discussions above, restricted use has been retained in

the final rule. Based on its analyses in the Final GEIS and its

experiences with actual decommissioned sites, the Commission recognizes

that, although unrestricted use is generally preferred, restricted use

(when properly designed in accordance with the rule's provisions

discussed in Section IV.B.3) can provide a cost-effective alternative

to unrestricted use for some facilities and maintain the dose to the

average member of the pertinent critical group at the same level. Thus,

the Commission has replaced the prohibitively expensive provision for

justifying restricted use with a reasonable cost provision. The net

harm provision remains the same. The general cap value has been

retained at 1 mSv/y (100 mrem/y) as has the requirement that licensees

reduce the actual level of contamination to levels as far below the cap

as is ALARA, where appropriate. The rule has been modified to allow for

exceeding the 1 mSv/y (100 mrem/y) cap in site-specific situations and

under specific provisions. No change has been made to the financial

assurance provisions of the rule.

A number of comments were also received on public participation

aspects of restricting site use. The final rule will require that

licensees proposing to decommission by restricting use of a site shall

seek advice from individuals and institutions in the community who may

be affected by the decommissioning and that, in seeking that advice,

the licensee shall provide for: (1) Participation by representatives of

a broad cross section of community interests who may be affected by the

decommissioning; (2) an opportunity for a comprehensive, collective

discussion on the issues by the participants represented; and (3) a

publicly available summary of the results of all such discussions,

including a description of the individual viewpoints of the

participants on the issues and the extent of agreement and disagreement

among the participants on the issues. The details of the comments

received and the rationale for the public participation aspects of the

final rule are discussed in Section IV.E.

C. Alternate Criteria for License Termination

C.1 Codifying Provisions for Certain Facilities That the Proposed Rule

Suggested Exempting

C.1.1 Proposed rule content. The preamble to the proposed rule

noted that there were several existing licensed sites where public

health and the environment may best be protected by use of alternate

criteria, although these situations were not codified in the proposed

rule; rather, it was thought that these facilities might seek

exemptions (under Sec. 20.2301) from the criteria of this rule.

C.1.2 Comments. Some commenters recommended that the rule should

not apply to any facility that possesses large volumes of low-level

contaminated wastes (including SDMP sites) and should provide a

specific exemption or exemption procedures for the ``tens'' of existing

facilities for which application of the proposed criteria is

inappropriate and too restrictive. Commenters suggested that guidance

is needed on sites that should be turned over to the Federal Government

after license termination and sites that should be kept under license.

Commenters also recommended that NRC ask Congress to amend the NWPA of

1982 to allow Federal ownership of extensively contaminated sites.

Other commenters objected to exempting facilities from the proposed

radiological criteria and stated that the rule should cover all

decommissioning cases.

C.1.3 Response. For the very large majority of NRC-licensed sites,

the Commission believes that the 0.25 mSv/y (25 mrem/y) unrestricted

and restricted use dose criterion in the rule is an appropriate and

achievable criterion for decommissioning.

However the Commission is concerned about the possible presence of

certain difficult sites presenting unique decommissioning problems.

Licensees of these sites who would have sought exemptions to the

proposed rule's criteria would have had to follow processes similar to

the other facilities covered by the rule. In addition, licensing

efficiency, consistency of application of requirements, and oversight

of these facilities can best be achieved by codifying application of

criteria to all facilities. Therefore, the Commission believes that it

is preferable to codify provisions for these facilities under the aegis

of the rule rather than requiring licensees to seek an exemption

process outside the rule as was contemplated in the proposed

rulemaking.

In addition, as discussed in Section IV.A, the Commission has

concluded that for any site where the 0.25 mSv/y (25 mrem/y) dose

criterion is met, there will be a very low likelihood that individuals

who use the site will be exposed to multiple man-made sources combined,

excluding medical, with cumulative doses approaching 1 mSv/y (100 mrem/

y). Thus, the discussion in Section IV.A of this notice establishes

this level as a sufficient and ample, but not necessary, margin of

safety.

Based on these considerations, the Commission has included in the

final rule a provision under which the Commission may terminate a

license using alternate criteria in its final rule. The Commission

expects the use of alternate criteria to be confined to rare

situations. Therefore, for the reasons previously listed in Section

A.2.3.4, the Commission has limited the conditions under which a

licensee would apply to the NRC for, or be granted use of, alternate

criteria to unusual site-specific circumstances subject to the

following provisions:

(a) A licensee must provide assurance that, for the site under

consideration, it is unlikely that the dose to an average member of the

critical group for that site from all potential man-made sources

combined, other than medical, would exceed the 1 mSv/y (100 mrem/y)

public dose limit of 10 CFR Part 20. The Commission envisions that a

licensee proposing to use alternate criteria will have to provide a

complete and comprehensive analysis that would build upon generic

considerations such as those discussed in Section IV.A.2, and also

include site-specific considerations. To guide the Commission in its

review of such analyses, the NRC is continuing to develop generic

information on the potential for exposure to radioactivity from various

sources, including decommissioned sources, to supplement currently

available knowledge, and is planning to make this information publicly

available through publication of a NUREG report. Site-specific factors

that the Commission might review in such cases could include soil and

aquifer characteristics, the nature of the critical groups likely to

use the site, the detailed nature of the contamination patterns at the

site, and the characteristics of residual radionuclides remaining at

the site, including considerations related to whether the nuclides are

long-lived or short-lived;

(b) A licensee will employ, to the extent practical, restrictions

on site use for minimizing exposure at the site using the provisions

for restricted use

[[Page 39073]]

outlined in IV.B, above, and in Sec. 20.1403;

(c) A licensee will indicate that a comprehensive analysis had been

performed of the risks and benefits of all viable alternatives and

consideration of any detriments, such as transportation fatalities that

might occur as the result of cleanup activities, to reduce the residual

radioactivity at the site to levels that are ALARA;

(d) A licensee will seek advice from affected parties regarding

this approach. In seeking such advice, the licensee will provide for:

(1) Participation by representatives of a broad cross section of

community interests who may be affected by the decommissioning; (2) an

opportunity for a comprehensive, collective discussion on the issues by

the participants represented; and (3) a publicly available summary of

the results of all such discussions, including a description of the

individual viewpoints of the participants on the issues and the extent

of agreement and disagreement among the participants on the issues (the

rationale for these public participation aspects are discussed in more

detail in Section IV.E); and

(e) A licensee will obtain the specific approval of the Commission

for the use of alternate criteria. The Commission will make its

decision after consideration of the NRC staff's recommendations that

will address any comments provided by the Environmental Protection

Agency and any public comments submitted regarding the decommissioning

or license termination plan.

If the license termination conditions under alternate criteria

cannot be met, it may be necessary for the site (or portion thereof) to

be kept under license to ensure that exposures to the public are

appropriately monitored. The evaluation of maintenance of a site or a

portion of that site under continued license is outside the scope of

this rulemaking because this rule contains provisions, including

radiological criteria, that apply to termination of a license.

With regard to the comment on the NWPA, it should be noted that

Section 151(b) of the NWPA already authorizes ownership by the U.S.

Department of Energy, if NRC makes certain determinations. Therefore,

no further legislation is needed to grant this authority. The rule

language has been clarified to ensure that this authority may be

implemented by NRC and DOE.

C.1.4 Summary of revisions to rule on codifying provisions for

certain facilities. The rule has been modified to include the use of

alternate criteria in specialized circumstances and under the

provisions described above.

C.2 Exclusion of Uranium/Thorium Mills Proposed in Sec. 20.1401(a)

C.2.1 Proposed rule content. The proposed rule stated that, for

uranium mills, the criteria of the rule apply to the facility but do

not apply to the disposal of uranium mill tailings or to soil cleanup.

The proposed rule referred to 10 CFR Part 40, Appendix A, where

criteria already exist (Sec. 20.1401(a)).

C.2.2 Comments. Comments on the proposed rule generally agreed

with the exclusion for disposal of mill tailings and soil cleanup.

Commenters also recommended that the rule exempt conventional thorium

and uranium mill facilities and in situ leach (ISL) (specifically

uranium solution extraction) facilities from the scope of coverage

because they stated that the decommissioning of these sites is covered

by Appendix A to 10 CFR part 40 and 40 CFR part 192.

C.2.3 Response. Currently, there are regulations applicable to

remediation of both inactive tailings sites, including vicinity

properties, and active uranium and thorium mills. Under the Uranium

Mill Tailings Radiation Control Act (UMTRCA) of 1978, as amended, EPA

has the authority to set cleanup standards for uranium mills and, based

on that authority, issued regulations in 40 CFR part 192 which contain

remediation criteria for these facilities. NRC's regulations in 10 CFR

part 40, Appendix A, apply to the decommissioning of its licensed

facilities and conform to EPA's standards for uranium mills. At ISLs,

the decommissioning activities are similar to those at uranium mills

and consist mainly of the cleanup of byproduct material as defined in

Section 11e.(2) of the Atomic Energy Act of 1954, as amended.

Thus, applicable cleanup standards already exist for soil cleanup

of radium in 10 CFR part 40, Appendix A, Criterion 6(6). Radium is the

main contaminant at mills in the large areas (20-400 hectares (50 to

1000 acres) for uranium mills) where windblown contamination from the

tailings pile has occurred, and at ISLs (in holding ponds). These

standards require that the concentration of radium in those large areas

not exceed the background level by more than 0.19 Bq/gm (5 pCi/gm) in

the first 15 cm (6 inches) of soil, and 0.56 Bq/gm (15 pCi/gm) for

every 15 cm (6 inches) below the first 15 cm (6 inches). Cleanup of

radium to these concentrations would generally result in doses higher

than the unrestricted use dose criterion of this rulemaking, although,

in actual practice, cleanup of uranium mill tailings results in radium

levels lower than the 10 CFR part 40 standards, and radium is usually

removed to background levels during cleanup of uranium and thorium to

the levels in existing NRC guidance documents.

However, in other mill and ISL site areas proximate to locations

where radium contamination exists (e.g., under the mill building, in a

yellow cake storage area, under/around an ore pad, and at ISLs in soils

where spray irrigation has occurred as a means of disposal), uranium or

thorium would be the radionuclide of concern. A difficulty in applying

10 CFR part 40, Appendix A, as a standard for uranium and thorium, is

that it does not have any cleanup standards for soil contamination from

radionuclides other than radium. Application of the decommissioning

dose criterion of the final rule to these areas (while retaining the 10

CFR 40, Appendix A, standard for radium) would result in a situation

where the cleanup standard of that small portion of the mill site would

be lower than the standard for the large windblown tailings areas where

radium is the nuclide of concern. This would result in situations of

differing criteria being applied across essentially the same areas and

would be a problem for contamination existing both in uranium mill

soils and buildings.

The Commission has considered the most appropriate means to address

requirements for cleanup at uranium and thorium mills and ISLs

(collectively referred to as UR facilities) for unrestricted release of

the site other than tailings disposal and reclamation subject to the

requirements of 10 CFR part 40, Appendix A. One way would be to include

criteria for UR facilities as part of this rulemaking. However, as

noted above, there are complexities associated with decommissioning of

these unique facilities which could cause practical problems in

applying the standards of this rulemaking to UR facilities. Therefore,

the Commission has decided to exclude UR facilities from the scope of

this rulemaking.

To allow for full consideration by the Commission and affected

parties of the issues associated with decommissioning UR facilities and

of the regulatory options listed above, the Commission is publishing a

separate notice in this Federal Register reopening the comment period

to specifically request additional comment on the regulatory options

for decommissioning criteria for UR facilities. The Commission is not

reopening the comment period for any other issue discussed in this

Federal

[[Page 39074]]

Register notice. In the interim, the Commission will continue its

current practices for decommissioning UR facilities.

C.2.4 Summary of rule revisions for uranium/thorium mills. The

Commission is excluding uranium/thorium mills from the scope of this

rulemaking and is publishing a separate notice requesting additional

comment on the specific standard for license termination of UR

facilities.

C.3 Other Exemptions

C.3.1 Comments. Commenters suggested certain other exemptions be

specifically provided for in the rule including:

(1) Licensees that possess and hold only sealed sources or limited

quantities; and

(2) Radioactive waste materials disposed of in accordance with NRC

regulations in formerly used Secs. 20.302 and 20.304 because ALARA was

applied on a site-specific basis for these facilities.

Other commenters disagreed and stated that all such waste must be

decommissioned. In addition, there were commenters who stated that

exemption procedures should be spelled out.

C.3.2 Response. No exemption from the rule for sealed source or

limited quantity users is necessary. Under provisions of 10 CFR Parts

30, 40, and 70, Secs. 30.36(c)(1)(v), 40.42(c)(1)(v), and

70.38(c)(1)(v), the licensee could provide assurance that building or

soil contamination has never occurred or demonstrate that the level of

radioactive material contamination in the facility conforms with

screening criteria.

With regard to burials, as discussed in the preamble to the

proposed rule, the determination of whether the licensee meets the

radiological criteria of the final rule includes consideration of all

residual radioactivity at the site, including burials made in

conformance with 10 CFR part 20 (both existing Sec. 20.2002 and

formerly used Secs. 20.302 and 20.304). This is consistent with prior

Commission statements made in the preamble to the 1988 rulemaking on

general requirements for decommissioning (53 FR 24018; June 27, 1988)

and in promulgation of the final rule on timeliness of decommissioning

(59 FR 36026; July 15, 1994). More recent past burials (1981 to

present) were frequently made in conformance with guidelines defined in

``Onsite Disposal of Radioactive Waste,'' NUREG-1101, Volumes 1 through

3. This guidance was based on a maximum annual whole body or critical

organ dose of 0.25 mSv (25 mrem). Although numerically similar to the

existing low-level waste disposal criteria in 10 CFR part 61, the

Commission believes that, as a whole, the regulations applicable to

low-level waste disposal sites are much more restrictive than those

applicable to onsite burials. The pathway parameters on which NUREG-

1101 is based may not be comparable to those used to define the rule's

unrestricted release criteria. Nevertheless, case-by-case analysis of

the potential radiological impacts could indicate that leaving the

burials in place could be consistent with unrestricted or restricted

release of the affected site. For past burials that have involved long-

lived nuclides, site-specific modeling may also justify leaving these

burials in place. Thus, the Commission sees no reason to specifically

exempt these burials from consideration under this final rule but would

continue to require an analysis of site-specific overall impacts and

costs in deciding whether or not exhumation of previous buried waste is

necessary for specific sites. In addition, the general exemption

provisions of 10 CFR part 20 are available to consider unique past

burials on a case-by-case basis.

With regard to specific provisions in the rule for exemptions, the

Commission is not convinced that a significant number of exemptions to

the unrestricted or restricted use provisions of the final rule will be

necessary. The Commission believes that the options in this rule for

release under alternate criteria and the flexibility contained in the

rule including the use of realistic site-specific screening and

modeling provide licensees with sufficient latitude.

D. Groundwater Protection Criteria (Proposed Rule Sec. 20.1403)

D.1 Proposed Rule Content

The proposed rule (Sec. 20.1403(d)) indicated that a licensee must

demonstrate a reasonable expectation that residual radioactivity from

the site will not cause the level of radioactivity in groundwater that

is a current or potential source of drinking water to exceed the limits

specified in 40 CFR part 141. This groundwater requirement would have

been in addition to the proposed dose criterion for unrestricted use

and was included as part of the proposed rule on EPA's recommendation.

The preamble to the proposed rule solicited responses to three specific

questions on this proposal, including whether a separate standard was

appropriate as a supplement to an overall radiological dose criterion

that applies to all exposure pathways.

D.2 Use of EPA Drinking Water Standards in NRC Rule

D.2.1 Comments. A number of commenters disagreed with the

inclusion of a separate groundwater requirement. In response to the

specific questions asked, many of these commenters stated that a

separate requirement for groundwater was not necessary if the rule

included an all-pathways standard. A commenter also noted that

application of Maximum Contaminant Levels (MCLs) to groundwater was

inappropriate because the MCLs of EPA's drinking water standards were

based on outdated dosimetry (ICRP2) and were applicable to public water

systems rather than to groundwater directly. Other commenters supported

establishing a separate groundwater requirement as being consistent

with the EPA standard.

D.2.2 Response. As noted in Section IV.D.1, the NRC's proposed

rule included separate requirements for groundwater protection. The NRC

staff has reviewed the public comments on its proposed rule, including

the EPA comments supporting the separate requirement, has reviewed the

bases and rationale for a separate groundwater standard, and has

conducted further technical analyses of groundwater protection in the

Final GEIS.

As described in some detail in Section IV.A.2.2, there were three

broad considerations that provided the overall rationale for the

proposed rule's contents. The first two considerations were related to

the health and safety aspects, and the third was related to cost and

practicality aspects. As was done in Section IV.A.2.2, regarding the

establishment of unrestricted and restricted dose criteria, this

section reexamines these three considerations in the context of

determining appropriate groundwater cleanup requirements for

decommissioning.

With regard to the first two considerations, as described in

Section IV.A.2.2, above, this final rule contains acceptable criteria

(including the dose criterion for unrestricted use, and provisions for

ALARA, restricted use, and alternate site-specific criteria) to protect

the public from radiation from all of the pathways that they could be

exposed to from a decommissioned facility (e.g., direct exposure to

radiation, ingestion of food, inhalation of dust, and drinking water).

The bases used in selecting the dose criterion for this final rule are

stated in Section IV.A.2.

The dose criterion codified in Sec. 20.1402 of this final rule

limits the amount of radiation that a person can

[[Page 39075]]

potentially receive from all possible sources at a decommissioned

facility. Therefore, it is an ``all-pathways'' standard. Examples of

these pathways include:

(a) Direct exposure to radiation from material on the soil surface;

(b) Eating food grown in the soil and eating fish from surface

waters;

(c) Inhalation of dust from soil surfaces; and

(d) Drinking water obtained from the groundwater.

Because equivalent doses received through any pathways of exposure

would involve equivalent risks to the person exposed, NRC concludes the

following with regard to the need to set a separate standard for

groundwater:

(a) There is no reason from the standpoint of protection of public

health and safety to have a separate, lower dose criterion for one of

the pathways (e.g., drinking water) as long as, when combined, the dose

from all the pathways doesn't exceed the total dose standard

established in the rule;

(b) A standard imposed on a single pathway, such as drinking water,

may have been appropriate in the past for site cleanups when a dose-

based standard for decommissioning did not exist. It may also be

appropriate for chemical contamination when no total limit on exposure

exists. However, NRC's final rule on decommissioning would issue an

overall TEDE criterion for all radionuclides combined and for all

pathways of exposure combined, including drinking water, thus removing

the need for a single-pathway standard for groundwater. This is a more

uniform method for protecting public health and safety than was

contained in NRC's proposed rule that set separate requirements using

the MCLs contained in 40 CFR part 141. This is because the MCL

requirements do not cover all radionuclides and do not provide a

consistent risk standard for different radionuclides as will be

provided by adoption of a single dose criterion in the final rule. In

addition, the MCLs are based on a modeling approach that has not been

updated to reflect current understandings of the uptake and doses

resulting from ingestion of radionuclides through drinking water.

The Commission agrees with the commenters that exposures from

drinking contaminated groundwater need to be controlled; with the EPA's

groundwater protection principles contained in the document

``Protecting the Nation's Groundwater: EPA Strategy for the 1990's,''

212-1024 (July 1991); and with the EPA position that the environmental

integrity of the nation's groundwater resources needs to be protected.

Nonetheless, it is the Commission's position that protection of public

health and safety is fully afforded by limiting exposure to persons

from all potential sources of radioactive material by means of a TEDE

at a decommissioned facility. There is, therefore, no compelling reason

to impose a separate limit on dose from the drinking water pathway, and

the rule has been modified to delete a separate groundwater standard.

To make clear NRC's concern over the importance of protecting this

resource as a source of potential public exposure, the rule has also

been modified to include a direct reference to the groundwater pathway

in the all-pathways unrestricted use dose criterion in Sec. 20.1402.

In actual situations, based on typical operational practices of

most nuclear facilities and on the behavior of radionuclides in the

environment for the very large majority of sites, concentrations of

radionuclides in the groundwater will be well below the dose criterion

of this final rule and would be either below or only marginally above

the MCLs codified in 40 CFR Part 141 as referenced in the proposed NRC

rule. For example, because the large majority of NRC licensees either

use sealed sources or have very short-lived radionuclides, it is highly

unlikely that contamination from these facilities would reach the

groundwater. Even for facilities like reactors or certain industrial

facilities, whose major contaminants are relatively short-lived

nuclides like Co-60 or Cs-137, the migration of these nuclides through

soil is so slow that it precludes groundwater contamination of any

significance. In addition, it is not anticipated that decommissioned

nuclear facilities will be located near enough to public water

treatment facilities so that treatment facilities would be affected by

the potential groundwater contamination from decommissioned facilities.

As further described in Section IV.A.2, the Commission is basing

its decision on analyses in the Final GEIS, that consider cost and

practicality factors, to provide additional information regarding

decisions on issues such as achieving ALARA levels below the dose

criterion of Sec. 20.1402 and allowing restricted use. These analyses

also consider how these issues relate to groundwater cleanup, including

how, and to what level, ALARA efforts should be made, and if, and in

what manner, restrictions on use should be considered. The analysis of

impacts to populations and the cost of remediating those impacts is

particularly important for groundwater because this resource can be

used in a variety of public uses away from the site being

decommissioned. The Final GEIS draws from NRC's experience and the

public comments regarding contaminated sites. In particular,

considerations with regard to groundwater remediation include potential

remediation methods such as removal of soil to preclude prospective

contamination, pump and treat processes for the cleanup of existing

groundwater contamination, and the supply of alternate sources of

drinking water, as well as a consideration of administrative costs

associated with predicting and measuring levels of contaminated

groundwater.

Because of the range of possible parameters, scenarios, and site-

specific situations, Section IV.A.2 notes that the analyses in the

Final GEIS indicate that there is a wide range of cost-benefit results

and there is no unique algorithm that is a decisive ALARA result for

all facilities. This finding is especially true for groundwater

contamination where the behavior of radionuclides in soil and in the

aquifer is highly site-specific; much more so than in concrete. The

results of the overall considerations of Section IV.A.2 for all

pathways would be applicable to the groundwater component. As pointed

out in Section IV.A.2.3.2, it is intended that the regulatory guidance

to be developed to support the final rule will provide guidance on

these considerations. Although preparation of this guidance is in a

preliminary stage, it is anticipated that this guidance would likely

indicate that reducing doses to values less than the dose criterion of

0.25 mSv (25 mrem/y) is generally not likely to be cost-effective when

evaluated using NRC's regulatory analysis framework presented in NUREG/

BR-0058 and NUREG-1530, although there may be ALARA considerations for

sites with a relatively large population obtaining all their drinking

water from the site plume.

D.2.3 Summary of rule revisions on groundwater and plans for

implementation. Based on the above, the Commission concludes that

application of a separate groundwater protection limit, in addition to

the all pathways dose limit, is not necessary or justified and has

deleted this requirement from its final rule.

As noted above, regulatory guidance to be prepared in support of

the final rule will likely describe site-specific conditions under

which an ALARA analysis could identify the need to consider reducing

the dose below the unrestricted use dose criterion (e.g., large

existing population deriving its

[[Page 39076]]

drinking water from a downstream supply using a downstream plume).

E. Public Participation (Proposed Rule Secs. 20.1406 and 20.1407)

E.1 Proposed Rule Content

The proposed rule included a general requirement in Sec. 20.1406(a)

that upon receipt of a decommissioning plan or proposal for restricted

use from a licensee, the NRC must notify and solicit comments from

local and State governments and Indian nations in the vicinity of the

site and publish a notice in a forum that is readily accessible to

persons in the site vicinity to solicit comments from affected parties.

The proposed rule also contained additional requirements, in

Secs. 20.1406(b) and 20.1407, for decommissionings when the licensee

does not propose to achieve unrestricted release (i.e., instead

restrict site use after license termination). In those cases, the

licensee would be required to convene a site-specific advisory board

(SSAB) for the purpose of obtaining advice from affected parties on the

decommissioning. The Commission envisioned that the advice obtained

would address issues as to whether:

(a) There are ways to achieve unrestricted release that would not

be prohibitively expensive or cause net public or environmental harm;

(b) Institutional controls proposed by the licensee will provide

reasonable assurance that the TEDE does not exceed the dose criterion,

will be enforceable, and will not impose an undue burden on affected

parties; and

(c) There is sufficient financial assurance to maintain the

institutional controls.

Public comments received on the general requirements related to

notification and solicitation are discussed in Section IV.E.2. Comments

received on the additional requirements on public participation for

restricted use are discussed in Section IV.E.3.

E.2 General Requirements on Notification and Solicitation of Comments

(Proposed Rule Sec. 20.1406(a))

E.2.1 Comments. Several commenters supported the public

notification requirements in proposed Sec. 20.1406(a). Other commenters

stated that the proposed notification requirements exceeded

requirements of the Administrative Procedures Act (APA) and that NRC

has not demonstrated a health and safety need for these requirements.

Suggestions for public participation offered by some commenters

included that the public not only be informed but be able to

participate effectively in all decommissioning cases, not just those

related to SSABs. Other specific comments addressed the type and timing

of the notification, meetings to be held, who should bear the cost of

public participation, the availability of licensee documents, NRC's

role, and the need for exemptions.

E.2.2 Response. A variety of comments have been provided on this

issue during all phases of this rulemaking from the earliest workshops

through comments on the NRC staff draft rule (February 2, 1994; 59 FR

4868) and the proposed rule, and in a workshop on public participation

aspects of the rule held in December 1994. Comments provided in these

forums have been similar to those noted above. A common theme of the

December 1994 workshop was that there are many approaches for involving

the public in the decommissioning process. Participants generally

favored exploration of site-specific alternatives as opposed to

generally mandated processes, like SSABs. Many commenters suggested

that there was merit to having a public participation plan developed by

the licensee in cooperation with interested parties so the public's

participation could be tailored to the needs of the community and the

licensee.

The Commission agrees that public participation can be an important

component for informing and involving the public. The Commission

recognizes the potential benefit for all decommissionings and site

releases of significant community concern to keep the public informed

and educated about the status of decommissioning at a particular site

and to elicit public concerns about the decommissioning process at that

site. Based on the comments received and on a consideration of current

Commission practices, the general provisions in Sec. 20.1405 that

provide for notification of the public and government entities and

solicitation of comment have not been modified although a specific

reference to notifying and soliciting comments from the EPA has been

added to Sec. 20.1405. The reason that the general provisions of

Sec. 20.1405(a) have not been modified in response to the public

comments received is because existing Commission policies and

practices, coupled with the provisions of this rule and a recent

rulemaking on power reactor decommissioning, appear reasonable by

providing for public participation in the decommissioning and site

release process. Specifically in the case of power reactors, as is

noted in the preamble to the separate final rule entitled

``Decommissioning of Nuclear Power Reactors'' that was published on

July 29, 1996 (61 FR 39278), the Commission has held public meetings

and informal hearings for plants undergoing decommissioning, even

though limited formal requirements exist for this type of involvement.

To codify those activities, that rule requires a public meeting to be

held at the time of submittal of a reactor licensee's Post-Shutdown

Decommissioning Activities Report (PSDAR) and requires that this

meeting be noticed in a local public forum and held in the vicinity of

the facility. The PSDAR must also be made available for public review

and comment. In addition, a licensee is required to hold a public

meeting on the License Termination Plan (LTP), that for power reactors

now replaces the decommissioning plan, in the vicinity of the facility

following notice of the meeting in a local public forum. The LTP is

also required to be made available for public comment with full hearing

rights under Subpart G or L of 10 CFR 2.1201, depending on the

disposition of the spent fuel.

Similarly, for materials facilities involving significant

decommissioning efforts, the Commission has implemented efforts to

inform and involve the public in the process. These efforts were

intended to provide early and meaningful opportunities for public

involvement in the decommissioning process. For example, the NRC staff

has initiated public information meetings at the Parks Township shallow

land disposal area and the Sequoyah Fuels Corporation facility and

conducted public information roundtables at various sites. Stakeholder

representatives are routinely invited to participate in roundtable

discussions and information exchanges on the status and issues

associated with the decommissioning project. These initiatives are

consistent with the NRC staff's public responsiveness plan in NUREG/BR-

0199. Where appropriate, the Commission plans to use these public

involvement mechanisms and other public information meetings and

involvement efforts, such as community information boards, at other

facilities in the future on a site-specific basis to address specific

needs that exist in affected communities.

Based on these considerations, current practices and procedures and

existing rule provisions are appropriate to provide for public

participation in the decommissioning and license termination process

and to provide sufficient flexibility to accommodate different

situations, and therefore the general requirements of Sec. 20.1405 on

[[Page 39077]]

notification and solicitation of comments have been retained. Sections

20.1405 (a) and (b) provide for the notification of specific government

entities and the public in the vicinity of the site when a licensee

submits a LTP or decommissioning plan for any of the license

termination approaches described in Section IV.A.2.3 or specifically

proposes to use restricted use (see Section IV.B) or alternate criteria

(see Section IV.C). The NRC will review public comments gathered by the

licensee prior to final NRC actions on the licensee's request for

license termination. A specific reference has been added in

Sec. 20.1405(a) to provide for specific notification and solicitation

of comment from EPA where the licensee proposes to use alternate

criteria. To the extent that EPA has an interest in commenting on

proposed decommissionings other than those under alternate criteria,

EPA comments would be considered under the general notice and comment

provisions of Sec. 20.1405.

Specific additional requirements for public participation in cases

where restricted use or alternate criteria are proposed by a licensee

are discussed further in Section IV.E.3.

E.2.3 Summary of rule revisions on general requirements on public

participation and notifications. No overall changes were made to the

provisions for public notification in the final rule, except to include

specific reference to notifying and soliciting comments from the EPA

where the licensee proposes to use alternate criteria for license

termination.

E.3 Additional Requirements on Public Participation (Including Those

for Restricted Use, for Alternate Criteria, and for Use of SSABs)

(Proposed Rule Sec. 20.1406(b))

E.3.1 Comments. Comments were specifically submitted on the

requirement in Sec. 20.1406(b) for the use of SSABs. These comments

were submitted both in response to the proposed rule, as well as in

connection with the NRC workshop on SSABs held on December 6-8, 1994

(see NUREG/CR-6307 for a summary of the workshop).

Some commenters supported the proposed requirement in

Sec. 20.1406(b) that would require licensees to convene a SSAB for

restricted release of a site. Other commenters objected to the use of a

SSAB in each case involving a restricted release of a site. These

commenters expressed concern that use of SSABs was inconsistent with

the timeliness rule or that exemptions or other relief from the

timeliness rule would be needed; that a need for SSABs has not been

demonstrated; and that SSABs are inconsistent with Federal Advisory

Committee Act, Administrative Procedures Act, and Atomic Energy Act

requirements. Commenters suggested alternatives to mandatory SSABs,

such as addressing the need for a board in a public participation plan

or providing more flexibility in deciding when to use SSABs. Some

commenters indicated that use of SSABs should be extended to the

unrestricted use of sites.

E.3.2 Response. One of the major issues raised by the comments and

in the workshop discussions on the SSAB was the advisability of

mandating a specific public involvement mechanism such as a SSAB as

opposed to establishing broad performance criteria that would allow the

licensee flexibility in selecting the appropriate public involvement

mechanism for a particular site. There was general agreement that

flexibility was always desirable, in establishing meaningful

performance criteria. However, it should be emphasized that some of

those who supported the use of performance criteria did so only in the

context of the expansion of the scope of licensee public involvement

requirements, including an SSAB, to cover facilities beyond the

restricted use category. An additional issue of concern to commenters

was whether it was more appropriate for the licensee to establish the

SSAB, as contemplated by the proposed rule, or whether the Commission

should establish the SSAB. The resolution of this issue depends not

only on the objectives that the Commission believes will be served by

an SSAB, but also on what the Commission's broader responsibilities are

in the public involvement area. This, in turn, relates to another issue

raised by the commenters: the scope and duration of a SSAB's

responsibilities.

In proposing a requirement for obtaining advice from affected

parties on restricted use, the Commission's objective is to involve

diverse community interests directly with the licensee in the

development of the LTP or decommissioning plan for a proposed

restricted use decommissioning. Community concerns, as well as

community-based knowledge on the appropriate selection of institutional

controls, risk issues, and economic development, can be potentially

useful in the development of the LTP or decommissioning plan. For

Commission and licensee resources to be used efficiently, the

Commission believes that this type of information should be considered

and incorporated as appropriate into the LTP or decommissioning plan

before the plan is submitted to the NRC for review. The licensee is the

appropriate entity to accomplish this.

In considering a requirement to convene a SSAB or similar group,

the Commission has considered alternatives regarding the most effective

way to ensure that the licensee considers the diversity of views in the

community. Small group discussions can be a more effective mechanism

than written comments or large public meetings for articulating the

exact nature of community concerns, determining how much agreement or

disagreement there is on a particular issue, and facilitating the

development of acceptable solutions to issues. Also, the type of close

interaction resulting from a small group discussion could serve the

licensee well in developing a credible relationship with the community

in which it is operating.

Use of public participation methods is consistent with a variety of

initiatives being undertaken both within NRC and at other Federal

agencies regarding stakeholder involvement in the decommissioning

process. Examples of community involvement at NRC-licensed sites being

decommissioned under the SDMP are described above in Section IV.E.2.2.

Similarly, several Federal agencies (including EPA, DOE, the Department

of Defense (DOD)) that make up the Federal Facilities Environmental

Restoration Dialogue Committee, in their evaluation of the cleanup of

Federal facilities, have prepared a set of ``Principles for

Environmental Cleanup of Federal Facilities,'' dated August 2, 1995.

Principle No. 14 notes the need for agencies to provide for involvement

of public stakeholders from affected communities in facility cleanup

decisionmaking. It also notes that rather than being an impediment,

meaningful stakeholder involvement has, in many instances, resulted in

significant cleanup cost reductions.

The Commission envisions that a process for obtaining advice from

affected interests would provide the opportunity for public involvement

in the important issues related to restricted use of a site similar to

those described in Section IV.E.2.2. In particular, one of the

important issues would likely be the unavailability of the site for

full unrestricted public use. In its deliberations on the rule, the

Commission has envisioned that the following should occur:

(1) The licensee would present information to, and seek advice

from, affected parties on the provisions for

[[Page 39078]]

limiting the dose to meet the criteria in the rule (e.g., limiting use

to commercial/industrial use with elimination of the resident pathway),

how the restrictions would be enforced (e.g., use of deed restrictions,

engineered barriers, State or Federal control or ownership), the effect

on the community, and the adequacy of the level of financial assurance

(e.g., sufficient funds for maintenance of the deed or of fencing). In

seeking such advice, a broad cross section of the affected parties in

the community would be involved and there would be opportunity for a

comprehensive discussion of the issues by those parties. The

information presented would be similar to that which the rule would

require the licensee to prepare and submit to NRC to demonstrate the

appropriateness and safety aspects of the restrictions on site use.

As an example, in the specific case where the nuclides involved are

relatively short-lived (e.g., Co-60 and Cs-137), as discussed in

Section IV.B.3, calculations could demonstrate that it is preferable to

restrict use of the site for a finite time period to allow for

radioactive decay than it is to ship large quantities of soil. These

calculations would also show the length of time that the restrictions

would need to remain in force to allow for radioactive decay to reduce

residual levels below the unrestricted dose criterion. In addition,

these calculations could show that restricting the site to industrial

use through deed restrictions during this time period would eliminate

or decrease certain pathways and limit the dose to less than the 0.25

mSv/y (25 mrem/y) dose criteria in the rule. Finally, such an analysis

could indicate that continued use of the site for an industrial purpose

similar to its currently existing use should not adversely impact the

community. Consideration of community advice on appropriate

institutional controls for controlling access to the site during this

decay period would provide the licensee with useful information in

developing the necessary institutional controls. As part of the process

of public participation, the licensee would make public a summary of

the advice received and the results of the discussions on that advice.

For more complex cases where large volumes of uranium/thorium

contamination would remain under a form of restricted use, the long-

lived nature of these nuclides would result in the restrictions having

to remain in force in the community for a long period of time. The

information presented by the licensee would be similar to that for

shorter-lived nuclides, including the rationale for how use of

restrictions can eliminate exposure pathways (e.g., for uranium,

elimination of the resident farmer pathway greatly reduces the dose

because most of the dose received from uranium is through the

agricultural pathway); the nature of the institutional controls

expected to restrict use over extended time periods (e.g., deed

restrictions, engineered barriers such as fencing, restricted cells,

etc., and/or government control of the restricted area); and other

special provisions such as periodic rechecks of the restricted area and

the continued effectiveness of institutional controls (see Section

IV.B.3). As discussed previously in Section IV.E.2.2, because community

involvement already exists either formally or informally at a number of

complex sites, this provision would not change the situation at these

sites significantly.

(2) Following solicitation of advice from affected parties, the

licensee will include the recommendations from these parties in the LTP

or decommissioning plan and indicate how those recommendations were

addressed along with the technical basis for addressing them. The

technical basis for dealing with the recommendations would presumably

derive from the presentation made to the affected parties described

above and is the type of analysis that would be necessary to

demonstrate to the NRC the acceptability of restricted use provisions.

Based on the above, it appears reasonable to retain the requirement

for sites to seek advice from individuals and institutions in the

community who may be affected by the decommissioning where restricted

use is proposed. In retaining this requirement, the Commission has

decided to modify the rule to include general provisions that require

that such advice be sought on the fundamental performance objective of

institutional controls, namely that they function to provide reasonable

assurance that the TEDE does not exceed the dose criteria of the rule,

that they are enforceable, and that they will not impose undue burdens

on the local community. This general provision replaces the specific

reference contained in the proposed rule (Sec. 20.1406(b)) that advice

must be obtained by convening a SSAB. The rationale for this

modification derives from the discussion above on site flexibility,

protecting public health and safety, and ensuring community

involvement. Specifically, it is anticipated that these requirements

will contain the beneficial provisions of ensuring timely and

meaningful opportunity for advice from affected parties to be

considered and will allow licensees additional flexibility in

determining the best methods for obtaining that advice based on site-

specific considerations. For example, there may be situations where the

creation of a SSAB may not be appropriate as in cases where an existing

organization is already in place to assume this role, or where it is

clear that the community is willing to rely on local government

institutions to interact with the licensee. Appropriate mechanisms for

seeking advice from affected parties could include a public meeting or

series of meetings, a specific process for obtaining written or

computerized public comment by internet or web-site means, or by

convening small groups such as a SSAB. Any of these processes would

result in an opportunity for a comprehensive, collective discussion of

the issues by the affected parties. All of these approaches have been

used in prior decommissionings.

To ensure that there will continue to be significant opportunity

for public involvement in the decommissioning process, the modified

final rule has retained the principal objectives of an SSAB from

Sec. 20.1407 of the proposed rule, namely that a licensee seeking

community advice on the proposed restricted use will provide for: (1)

Participation by representatives of a broad cross section of community

interests who may be affected by the decommissioning; (2) an

opportunity for a comprehensive, collective discussion on the issues by

the participants represented; and (3) a publicly available summary of

the results of all such discussions, including a description of the

individual viewpoints of the participants on the issues and the extent

of agreement and disagreement among the participants on the issues.

Advice sought from affected parties in the manner noted above would

be considered in development of the LTP or decommissioning plan, and

the NRC will review public comments gathered by the licensee prior to

final NRC action on the licensee's request for license termination.

As discussed in Section IV.C, the Commission included requirements

for consideration of alternate criteria for certain difficult sites

because inclusion of such requirements is preferable to having these

facilities apply for exemptions. To ensure that there is full public

participation in any decision regarding such sites, licensees will be

required to seek advice regarding this approach from affected parties

in the same manner as described above for restricted use and described

in detail in

[[Page 39079]]

Section IV.C.3. In addition, use of alternate criteria will only be

considered by the Commission after review of the NRC staff's

recommendations that fully address any comments provided by the public

and EPA regarding the decommissioning or license termination plan.

E.3.3 Summary of rule revisions on SSABs. Specific text referring

to SSABs has been replaced with a requirement that licensees seek

community involvement and advice on any plans for restricted use or

alternate criteria for decommissioning through a variety of methods.

This requirement includes provisions for specifically how that advice

is to be sought and documented in the LTP or decommissioning plan.

Regulatory guidance is planned which will include criteria for

establishing and using the processes for seeking such advice, including

establishing SSABs, and for delineating those situations in which an

SSAB may not be appropriate. The guidance will discuss that the

expected starting point in providing an opportunity for public

involvement is the establishment of an SSAB; however, the provisions of

the rule provide licensees the flexibility to use other approaches

where appropriate.

E.4 Specific Questions on Functioning of SSABs

E.4.1 Comments. A number of comments were received on the

functioning of SSABs including their responsibilities, membership,

independence and support, meetings, and results.

(1) Some commenters recommended that SSABs should be given

responsibilities beyond those specified in proposed Sec. 20.1407(a).

Other commenters stated that the rule should restrict SSAB activities

to a specific mission which is advisory only and nontechnical.

(2) With regard to membership in SSABs, a number of comments

recommended specifically how the SSAB and its membership should be

constituted. Some commenters stated that many of the proposed SSAB

issues that are listed appear to require specialized expertise that

members of the general public might not have. Some commenters

questioned whether NRC and other Government agencies should be

prohibited from participating in SSABs because of conflict of interest

questions. Other commenters stated that the NRC should be officially

represented on the SSAB.

(3) With regard to independence of and support for SSABs, some

comments received stated th

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