Comments and Questions on scope of Proposed Rulemaking 6 NYCRR Part 384

March 31, 2008

by James Rauch, Secretary
F.A.C.T.S. (For A Clean Tonawanda Site), Inc.

These comments follow the outline of the corresponding federal regulations 10CFR20E (effective July 21, 1997), also known as the "License Termination Rule"

1) Section 20.1401, General provisions:

At sites containing large inventories of very long-lived radioactive materials and where tens of thousands of people comprise the affected populations, the current federal regulations which limit the peak annual dose (for only 1,000 years after decommissioning) to 25 mrem (to the average member of the "critical group") are not sufficiently protective.

See comments 1, 2, and 3 of my September 22, 1996 Comments on "DEIS for Completion of the West Valley Demonstration Project and Closure or Long-Term Management of Facilities at the Western New York Nuclear Service Center" (http://nuclear.bfn.org/WVDEIScom.htm). For major impact sites such as West Valley, a provision requiring best estimates of cumulative population doses should be included in the regulations. In recognition of this need, the 1980 WVDPA called on NRC to determine cleanup criteria specific to the West Valley site. NRC has not done so. Failure of the NRC's generic federal regulations 10CFR20E to consider and to regulate doses to the entire affected population around such major impact sites (collective population doses) is a serious shortcoming of those regulations.

For major impact sites, the NYS regulations should incorporate additional provisions for the calculation of, and the imposition of limits on, collective population doses for the duration of the hazard, or for very long-lived wastes, at least the first 10,000 years of the total hazard period. Collective population dose limits should be set such that the resulting lifetime rates of excess fatal cancers plus non-fatal cancers do not exceed one in one hundred thousand. Total lifetime excess cancer rates of one in ten thousand are likely to be publicly seen as unprotective for sites involving long-lived wastes and large affected populations.

2) Section 20.1402, Radiological cleanup criteria:

The protocol for the determination of background exposure should be spelled out in the regulations.

For unrestricted use, the TEDE dose limit for the average member of the critical group should be set at 5 mrem/yr. This is in line with limits already set by some other states, e.g. New Jersey.

The application of ALARA should include a provision for the thorough assessment of all ecological impacts and their associated negative economic costs summed over the duration of the hazard period, or for at least 10,000 years.

3) Section 20.1403, Criteria for restricted release under institutional control:

The NYS regulations should require that the TEDE dose to the average member of the critical group will not exceed 10 mrem/yr should institutional control be lost; this must be demonstrated through a fully transparent, court reviewable, public process prior to placement of any contemplated controls.

Again, application of the ALARA principle should include a thorough assessment of ecological impacts and associated negative economic costs out to the end of the hazard period, or at least 10,000 years.

The financial assurance requirements necessary to provide control and maintenance of the site should be the same for all licensees whether governmental or private, should be set in a public review process, and should be in the form of a tangible trust fund managed and annually reported by the NYS Comptroller. In all cases, the effectiveness of site control/maintenance and the adequacy of the site's trust fund should be subject to public review hearings at least every 5 years.

NYS should not consider provisions similar to those in 10CFR20.1403(e). Many people, including this commenter, believe that insitutional control can not be reasonably expected to remain in effect for the extended hazard periods present at many nuclear waste sites. The federal reg 20.1403(e) implies different degrees of control, ie a second, more "durable" subdivision of institutional control. This is a lax approach to control that doesn't inspire confidence in the federal originator. If institutional control is to be codified by NYS as a management tool, any and all deployments of such control should be made as durable as possible and subject to the same rigorous conditions. In such cases, cleanup should be such that should loss of institutional control occur, the TEDE to the maximally exposed member to the critical group will not exceed 10 mrem/yr.

4) Section 20.1404, Alternate criteria

The provisions of this section are not sufficiently protective for major impact sites. The site-specific provisions described in comment (1) should be required for major impact sites; there should be no alternate criteria for such sites.

Questions:

1) Does NYS DEC intend its proposed separate 4 mrem/yr groundwater limit to apply to the West Valley site? Does it consider this limit, were it to apply to all downgradient surface water sources, to be protective for the entire affected regional population downstream from this site?

2) What is the deadline for completing the rulemaking in order to prevent loss of Agreement State status? Please provide a full citation to the pertinent federal regulation. [Note: in response to this question DEC provided a November 2005 NRC letter and a November 2006 NRC report.]

3) Why will this new rule not be directly applicable to CERCLA actions or remediations? Please provide specific federal citation(s). [Note: DEC responded to this question by providing a memo from DEC General Counsel J Eckls.]


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