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F Stakeholder Reactions to the USNRC Issues Paper This appendix describes alternative points of view expressed by a range of stakeholders responding to the U.S. Nuclear Regulatory Commission's (USNRC's) issues paper (64 Federal Register 35090-35100; June 30, 1999~. The appendix is illustrative: it does not cover all groups with an opinion, nor does it cover all possible opinions (for this one should consult NUREG/CR-6682; USNRC, 2000d). In general, the committee found that positions taken by stake- holder groups on the alternatives presented in the USNRC's issues paper were often similar to those expressed when the below regulatory concern (BRC) policy was discussed 10 years earlier. USNRC EFFORTS AT STAKEHOLDER INVOLVEMENT Background As the initial step in this process, the USNRC solicited comment on its June 30, 1999, issues paper (64 Federal Register 35090-35100; "Release of Solid Materials at Licensed Facilities: Issues Paper, Scoping Process for Environmen- tal Issues and Notice of Public Meetings"), noting that it was the initial step in an NOTE: Some of the displayed quotes in this appendix were recorded at the Rockville public meeting on May 9, 2000; others were from oral or written statements to the committee on March 26 and 27, 2001. 218

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APPENDIX F 219 "enhanced participatory process" in which the USNRC would seek public input into its decision-making process (USNRC, 2000a). The envisioned participatory process would consist of various forums, invited written comments on the paper, and a Web site that contained the issues paper and other materials and invited public comment. The cornerstone of the enhanced process was four public meet- ings to provide stakeholder groups and the public an opportunity to learn about the USNRC's issues paper effort and respond to it. The four sites for the meetings, held in 1999, included San Francisco, Cali- fornia (September 15-16~; Atlanta, Georgia (October 5-6~; Rockville, Maryland (November 1-2~; and Chicago, Illinois (December 7-8~. Despite numerous other attendees, public interest groups (such as environmental advocacy groups) did not attend the first two meetings. These groups provided a letter explaining why they would not attend. The last two meetings were attended by only a few of these interest group representatives; the others continued to boycott the public meet- ings. Although the USNRC had obtained more than 800 comment letters by December 2000, efforts by some groups to extend the comment period were denied by the USNRC (USNRC, 2000a). A public meeting in Rockville, Mary- land, on May 9,2000, was attended by a variety of public interest groups, includ- ing some that had boycotted earlier meetings with the USNRC (USNRC,2000c). The May 2000 Rockville meeting between the USNRC and stakeholder groups was designed to "provide an opportunity to deal with a range of different people who have - reflect the diversity of views on this issue" (USNRC, 2000c, p. 2~. Three panels were headed by the chairman of the USNRC and were conducted with some opportunity for presenters to enter a dialogue with commissioners. The summary of the public meetings and written comments (USNRC,2000d) and the proceedings from the Rockville stakeholder-Commission meeting (USNRC, 2000c) form two of four databases for this appendix. The other two include the summary of public comments at the four public meetings, NUREG/CR-6682 (USNRC, 2000d), just prior to the May 9, 2000, Rockville dialogue and various presentations made to this committee by different stakeholder groups including nuclear industry groups, agreement states, environmental interest groups, and others from the metals and concrete industries. The USNRC (2000a) staff report, SECY-00-0070, and the ICE Kaiser report (USNRC, 2000d) are the two major summaries of all 900 (written) comments as well as additional oral comments. Both efforts adequately provide the reader with the range of responses to the issues paper categories, but they do not offer a sense of the intensity of the views expressed. In addition, both SECY-00-0070 and the ICE Kaiser report tie comments and analyses back to the preexisting issues paper categories (process alternatives and technical approach categories). The diffi- culty of adequately summarizing and analyzing these comments (without some sort of weighting, content analysis, and/or statistical analysis) is clearly evident in the documents.

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220 APPENDIX F Approach The approach adopted in this report deviates from these two prior efforts in that it identifies stakeholder opinions without deliberate attempt to tie the opin- ions back to categories identified in the issues paper. As a result, some opinions correlate well with issues paper categories and some do not. The rationale for this approach is to avoid the misperception that all comments made correlate per- fectly with categories identified in the issues paper; clearly, some stakeholders' opinions contravene issues-paper-defined categories, while others embody cat- egories not originally envisioned by the issues paper (for a review of the stake- holder positions relative to issues paper categories, refer to Chapter 8, Table 8-1~. The approach utilized is a qualitative analysis of data obtained from presen- tations made directly to the study committee (see Appendix B for a complete list of presenters) and from the Rockville meeting. The perspectives that developed from the committee's analysis were then confirmed by reviewing both the ICE summary report and the USNRC staff report to the commissioners summarizing the input from all of the hearings. The committee's approach was to extract remarks and aggregate them into categories that demonstrate gradations of opinion. These gradations ranged from no clearance to support for a specific release standard. The gradations identified are the following: Cannot support release (clearance) for recycle or disposal; Cannot engage in a dialogue with the USNRC because the dialogue pro- cess is itself tainted; Recommend delaying a decision on whether to conduct a rulemaking until public comments can be integrated into the USNRC's decision framework; Recommend restricted release (conditional clearance); . Recommend continuing case-by-case, but with uniform national dose- based criteria; and Recommend setting a specific clearance standard, but with some excep- tions for special groups such as the metals recycling industry. Each of these gradations is discussed further below. In addition, options are discussed that fall outside those originally envisioned by the USNRC, which nonetheless need to be identified and considered. Stakeholder Positions Cannot Support Release for Recycle or Disposal Illustrative stakeholders in this category consisted of environmental public interest groups (Nuclear Information and Resource Service, Public Citizen, New

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APPENDIX F 221 England Coalition on Nuclear Pollution), which generally believe that the solid materials should be "regulated, monitored, and isolated from general commerce.''] These stakeholders tended to share the following perceptions: The U.S. Nuclear Regulatory Commission already has a position (i.e., a free release standard that it hopes to promulgate), and the public involve- ment process is just that a process, not a meaningful dialogue. Multiple and synergistic effects are possible from a release that is re- cycled into numerous sources for public use, and these effects have not been well characterized by the USNRC or any scientific body. The USNRC consistently uses so-called scientific evidence to justify the bases for its decisions, even though reasonable people might (and often do) disagree as to whether these bases can be substantiated. Releases of radioactive materials cannot be tracked or otherwise con- trolled, thereby raising doubts about the role they could play in the stream of commerce not only during their initial use but also during any subse- quent uses. The USNRC role in developing a standard is self-perpetuating in that the USNRC is attempting to justify its position by "punting"2 to an interna- tional standard that the USNRC itself had a role in creating. The fact that some radioactive materials already exist in the stream of commerce (whether natural or man-made) is not sufficient to justify addi- tional releases. The USNRC's true intent is economic, that is, to enable recycling of large amounts of contaminated material, which will benefit no one but the nuclear industry. The USNRC should seriously consider a "no-release" option; however, no group stated a specific, preferred process or technical alternative for how the materials should be treated, other than to request development of a scenario by which the materials would not be released. . . Two observations are offered based on these comments: . Stakeholder viewpoints reflect an overall lack of trust in the USNRC. Since most stakeholders assumed that the USNRC's true objective is to recycle the material, they were taken aback when asked whether remov- ing recycling from the equation would make a difference. Most indicated that it would, in fact, make a significant difference in the degree of their opposition to the proposed rulemaking. 1 Oral testimony of Dianne D'Arrigo, Nuclear Information and Resource Service, Rockville public meeting. May 9, 2000. 2Oral testimony of Wenonah Hauter, Public Citizen, Rockville public meeting. November, 1999.

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222 APPENDIX F "Your job is to prevent exposures to the public and the environment not con- vince us that it's a trivial amount." Wenonah Hauter, Public Citizen "Informed and concerned citizens may choose to remove themselves from the vicinity of nuclear facilities. No such information and no such choice exists when contaminated materials are free-released for recycle." New England Coalition on Nuclear Power Cannot Engage in a Dialogue with the USNRC Because the Dialogue Process Is Itself Tainted Illustrative stakeholders in this category consisted of a public interest group, Public Citizen, and the Allied Industrial Chemical and Energy Workers Union. These stakeholders shared most or all of the concerns noted above and addition- ally rejected the process and technical framework set forth by the USNRC. These stakeholders tended to perceive the following: . . . The USNRC is asking the wrong question and may thus be avoiding discussion of all possible options and alternatives. To these stakeholders, the question is not, Should we conduct a rulemaking why or why not? Rather, it is, Can we have an honest dialogue that would enable consider- ation of all the options and alternatives even those options and alterna- tives that the USNRC dislikes? The USNRC and the National Academy of Sciences (NAS) through the National Research Council both mistakenly believe the primary issues to be technical issues involving formulation, in the abstract, of some no- tional dose that ensures public health and safety, whereas the real issue is that the USNRC has an "empirical record of institutional incompetence"3 that shows a startling incapacity to technically abide by public protection standards."4 The real task is for the NAS to undertake a thorough public review of whether the Department of Energy (DOE) and its contractors cannot rea- sonably be relied on by the public to abide by whatever radiation protec- tion standards might, in the abstract, appear reasonable. Although the USNRC does not regulate DOE facilities, any standard adopted by the USNRC would in fact be implemented by DOE, since DOE is perceived to be the prime promoter of the unrestricted release of contaminated metals.5 Ural remarks by Dan Guttman to the committee, March 27, 2001. 4written testimony of Dan Guttman, presented to the committee March 27, 2001, p. 3. Ibid, p. 17. This theme was also reflected in testimonies to the committee by other public interest groups.

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APPENDIX F Two observations emerge from these comments: 223 1. The groups in this category do not believe that it is possible to engage in a dialogue until other issues of whether or not the USNRC can reliably protect public health and safety are resolved. 2. Again, since most stakeholders assumed that the USNRC's true objective is to recycle the material, they were taken aback when asked whether removing recycling from the equation would make a difference. Most indicated that it would, in fact, make a significant difference in the degree of their opposition to the proposed rulemaking. "Why did the NAS an entity with essential responsibility for vouchsafing the integrity of scientific advice to the nation accept without any evident question a framework for its work which it knew, or should have known, effectively ex- cluded from inquiry most important facts bearing on the protection of the pub- lic?" Dan Guttman Recommend Delaying a Decision on Whether to Conduct a Rulemaking Until Public Comments Can Be Integrated into the USNRC's Decision Framework Illustrative stakeholders in this category include groups as diverse as the scrap recycling industry, the Natural Resources Defense Council (NRDC), the Association of Radioactive Metals Recyclers (ARMR), and the Association of State and Territorial Solid Waste Management Officials (ASTWMO). They be- lieve that the question of whether to conduct a rulemaking should be delayed in order to obtain substantive representation from all the affected stakeholders- that is, to incorporate the stakeholders' viewpoints into the decision framework. Stakeholders in this category generally tended to perceive the following: . . While it is possible to arrive at a defensible, scientific standard, the thought of radioactive materials entering the recycling stream elicits strong fears and concerns on the part of the public. The USNRC's investigation should focus not only on the technical issues but also on understanding and integrating public concerns into the overall process. As the NRDC suggested, the USNRC is unwilling or unable to explain the basis for its position, and fundamental questions should be answered as to (1) why contaminated solid materials had to be recycled in the first place and (2) how the USNRC would propose to regulate these materials in a way that protects public health and safety.

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224 APPENDIX F Specific suggestions were also made, as follows: . . . . ASTWMO6 suggested that the USNRC itself might not have explored all the consequences of a rulemaking such as the following: Would rulemaking consume fewer resources than continuing to use case-by-case? Would the increased credibility of the USNRC resulting from delaying the process be of more benefit than making a rule? How important is the rule to licensees? What are the economics of the problem? ARMR6 suggested that a demonstration plan acceptable to both industry and the public should be developed; this plan should be the collaborative work of key stakeholders to gain their acceptance for determining impacts (e.g., to an industry). ARMR6 suggested that the appropriate next step in the USNRC' s process would be to convene a balanced stakeholder committee that would report to the USNRC and would provide it with criteria for acceptable release, recycle, and reuse. These comments suggest that the stakeholders generally felt that no step in the USNRC's public outreach process had thus far been able to repre- sent and integrate stakeholder concerns into the decision framework. "It's not that the public doesn't understand it's just that they have a different perspective based on risk and government credibility. Jeff Deckler,Department of Human Health and Environment for the State of Colorado, representing ASTSWMO "If you were going into end uses that were very clear and controlled, and we had confidence in how the material was being surveyed and how measurements were being made, what you're proposing is something we might consider." Natural Resources Defense Council Recommend Restricted Release (Conditional Clearance) Illustrative stakeholders in this category included the metals and concrete industries. Both expressed serious concerns about the potential economic damage to their markets from free release. Both support a restricted use concept, in which 6The only group on record that took this position.

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APPENDIX F 225 solid waste re-use would be limited to selected purposes and subject to a high degree of control. The concrete industry (National Ready Mixed Concrete Association) gener- ally perceives the following: Unrestricted release would force both the ready-mixed concrete producer and the consumer to assume liability or cost for potentially contaminated materials. Unrestricted use of contaminated materials could put an extreme burden on unqualified handlers of radioactive materials, such as ready-mixed concrete producers. It would be difficult to conceive of unrestricted use of contaminated con- crete, since recycled concrete whether contaminated or not does not have the best record in the construction industry. Unrestricted widespread use of any of the solid materials from licensed facilities is unacceptable. Restricted use should be defined to include only single point users where contact for exposure of the general population is minimal; examples could include non-water supply concrete dams for flood control, deep concrete foundations, or concrete containment facilities used as licensed storage facilities. Restricted use should entail licensing these facilities as low-level waste facilities. . Illustrative stakeholders in the metals industry included the Steel Manufac- turers Association, the American Iron and Steel Institute, and the Metals Industry Recycling Coalition. They generally perceived the following: . . Radioactively contaminated scrap has no value and could in fact contrib- ute to economic losses for scrap recyclers, since free release could dam- age the market for steel products by eroding public confidence in the safety of steel products. Free release could also add substantially to costs by forcing steel mills to go to extremes to protect against volumetrically contaminated materials that could cause a radioactive melt; recycling is viewed by the industry as a way for DOE to shift responsibility to the mills; and if sensor alarms go off too frequently, they may be ignored by employees even if the alarm is truly warranted. No unrestricted release of any contaminated radioactive steel or other metals should be permitted from USNRC-licensed facilities, even if the steel meets dose-based release levels that the committee might recom- mend and the USNRC adopt.

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226 APPENDIX F Material should be reused by DOE, stored or disposed on-site at the licensed facility, or disposed of off-site. Products from a licensed facility that are to be used for their original purpose off-site could be released without special restrictions if they meet a dose-based standard; those not used for their original purpose could be released to landfills or for dedicated nuclear-related uses such as at USNRC-licensed or DOE facilities. The following observations were made by spokespeople for the metals and concrete industries: both industries made a useful distinction between recycling and disposal, and it is recycling that poses the perceived economic threat to them. "The last thing the [metals] industry needs is to have a release standard that allows thousands or potentially millions of tons of steel that will meet the release standard but exceed our detectors coming into the mills. It will essentially shut down our ability to control for orphan sources." John Wittenborn, Metals Industry Recycling Coalition "Faced with the challenges of closing licensed facilities and handling contami- nated concrete, it is logical to conclude that a rule regarding release of contami- nated materials from licensed sites should be made. It is not, however, an ad- equate conclusion in our opinion that these materials should be placed in unrestricted use or even restricted use without further definition. Concrete, as several other construction materials, is ubiquitous to our society. The concept of concrete framed buildings across the United States being made with radioactive materials housing millions of people exposing them to potential radioactive ma- terial greater than background exposure is contrary to the charter of the NRC." Robert A. Garbini, National Ready Mixed Concrete Association Recommend Continuing Case by Case, but with Uniform National Dose-Based Criteria Several individual states and the Organization of Agreement States (OAS) gave the committee information regarding their views and activities related to clearance of slightly radioactive solid material (SRSM). The OAS recommended the development of standards that would apply nationally and felt that the stan- dards should address "free release" of material for unrestricted use. It commented that the approach should be "similar to the USNRC' s tiered approach for license termination." It was suggested that consideration be extended to radioactive ma- terials generated from technologically enhanced naturally occurring radioactive

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APPENDIX F 227 material (TENORM) and naturally occurring and accelerator-produced radioac- tive material (NARM) sources. In general, states have been applying case-by-case decisions to radioactive materials that are considered for alternative disposal, reuse, recycle, or clearance from the regulatory process. They have done so under their agreement states' authority and existing regulations. It seemed clear to the committee that while this process has been ongoing, a more formal and uniform process would be desirable. Illustrative stakeholders in this group were the Conference of Radiation Control Program Directors (CRCPD) and the Organization of Agreement States,7 which suggested continuing the case-by-case approach but using uniform, na- tional dose-based criteria. The CRCPD and OAS see the main limiting factor under the current case-by-case approach as licensees' using different survey equipment with different detection limits, leading to inconsistencies in the overall approach. The CRCPD and OAS position suggested that states want a more consistent application of criteria, as well as uniform criteria. They proposed that because a value of 1 mrem/yr is not only a trivial dose but also the basis for the American National Standards Institute (ANSI) standard, it readily suggests itself as an easy common denominator. Recommend Setting a Specific Clearance Standard, but with Some Exceptions for Special Groups Such as the Metals Recycling Industry Illustrative stakeholders in this category included the Health Physics Soci- ety, the Nuclear Energy Institute, the American Nuclear Society' s Special Com- mittee on Site Restoration and Cleanup Standards, and the CRCPD E-23 Com- mittee on Resource Recovery and Radioactivity. These stakeholders generally shared in the following perceptions: Lack of a consistent acceptance criteria provides inconsistent public pro- tection, undermines public confidence, wastes resources, and perpetuates liability. In the absence of a clearance standard, there may be some wastage of potentially recyclable materials. Regulatory Guide 1.86 (AEC, 1974) contains surface contamination guidelines only (no volumetric criteria) and is not dose based. Current regulations are inconsistently applied. Current regulations do not cover recycling. 7Testimony of Steve Collins, Illinois Department of Nuclear Safety, representing both organiza- tions, at USNRC, May 9, 2000.

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228 APPENDIX F Current regulations are inconsistent with the standards adopted by the international community. A national clearance standard should be developed through rulemaking and should embrace ANSI N13.12 because it is a consensus standard, uses the same dose criteria as the International Atomic Energy Agency, uses practical screening values, can be verified with available instru- ments, and would establish a "floor." To these ends, the standard should be expedited for direct reuse and direct disposal. The steel recycling industry deserves special consideration because or- phaned sources are a risk to public health, steel workers, and the steel industry.8 There is a need to distinguish "disposal" from "recycle." . The following observation is based on the points above; even those stake- holders who essentially support the development of a specific clearance standard would argue for special consideration to be given to the metals industry. "We continue to advocate for the eventual promulgation of clear, consistent and enforceable regulations based upon a one millirem annual dose criterion and nuclide specific concentration guidelines." Kathleen McAllister, Committee on Resource Recovery and Radioactivity Options Beyond Those Originally Envisioned by the USNRC Have to Be Identified and Considered in Any Further Stakeholder Involvement Process. As can be seen from the matrix in Table 8-1, all stakeholder opinions do not neatly line up with process and technical alternatives initially envisioned by the USNRC in its issues paper, notably the section of the matrix that refers to "other" alternatives. This category includes the following: Groups who felt strongly that there should be no release but were not prepared to formulate specific no-release scenarios; Groups who essentially supported a rulemaking but who felt that the rulemaking should be delayed until all public comments have been inte- grated into the USNRC' s decision framework; and 8The special exception for metals recyclers (and others such as the concrete industry) was not uniformly shared. Written testimony of Kathleen McAllister, chair, CRCPD E-23 Committee on Resource Recovery and Radioctivity, to the committee on March 27, 2001: "Despite inconveniences caused to them.... tilt is reasonable to assume that landfills and scrap recycling yards, as well as municipal public sewer facilities, and possibly concrete facilities will take it upon themselves to install radiation monitoring equipment ...." p. 3.

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APPENDIX F . 229 Groups who were unwilling to engage in discussion of "new" issues surrounding the release of solid materials until the "old" issues involving lack of public trust and confidence in the USNRC' s ability to protect the public can be resolved. The USNRC had expected to receive comments on the issues paper that would offer new options and alternatives. In this light, the discussion of stake- holder views above and the matrix of options in Chapter 8 may be of some value in framing other options and alternatives.