Report 2007-114 Recommendation 5 Responses

Report 2007-114: Low-Level Radioactive Waste: The State Has Limited Information That Hampers Its Ability to Assess the Need for a Disposal Facility and Must Improve Its Oversight to Better Protect the Public (Release Date: June 2008)

Recommendation #5 To: Public Health, Department of

To provide greater public transparency and accountability of its decommissioning practices, the department should begin complying with the Executive Order D-62-02 and develop dose-based decommissioning standards formally. If the department believes that doing so is not feasible, it should ask the governor to rescind this 2002 executive order.

Annual Follow-Up Agency Response From May 2016

After former Governor Davis issued his Executive Order (EO) directing California Department of Public Health (CDPH) to promulgate a "dose based" decommissioning standard, known as Radiological Criteria for License Termination (RCLT) by the U.S. Nuclear Regulatory Commission (NRC), CDPH determined costs of developing and promulgating such a standard/ criteria, was prohibitive and beyond the ability of the program to afford. CDPH continues to use the current, legal regulatory license termination process described in California Code of Regulations, Title 17, Section 30256, which consistently provided a more protective public health clean-up outcome than NRC's decommissioning standard of 25 millirem/year (mrem/yr). The decommissioning process in place is protective of public health and environment as evidenced by 1,272 license terminations tracked and documented since 2003 found only 4 exceeding a projected dose of 1 mrem/yr, and no site exceeded 3 mrem as compared to NRC's 25 mrem dose standard. This data demonstrates CDPH's decision not to adopt a specific dose-based release standard, but maintain its current case by case evaluation method led to residual dose results that are substantially lower than those that might be permitted under NRC's dose-based standard. By not developing a dose-based standard, protection of the public health's safety and environment has been strengthened. NRC accepted CDPH's process, as determined during the recent NRC audit, where the RHB was compatible and compliant with NRC RCLT requirements. CDPH believes requesting a rescission of the EO is problematic; the EO requires the State Water Resources Control Board and the Regional Water Quality Control Boards to enforce a moratorium barring the disposal of "decommissioned material" into unclassified waste management units or municipal landfills. By requesting the Governor to rescind this order, this enhanced environmental safety oversight would be eliminated.

California State Auditor's Assessment of Annual Follow-Up Status: Resolved

In January 2016 the U.S. Nuclear Regulatory Commission (NRC) completed its review of California's low-level radioactive waste program. The NRC review found that California's policies and regulations were generally compatible with federal requirements, notwithstanding the lack of regulations concerning "dose based" decommissioning standards. With the NRC's acceptance of California's current practices and its overall conclusion that the public's health and safety is adequately protected, we conclude that the original audit finding that prompted this recommendation has been resolved.

Annual Follow-Up Agency Response From August 2015

In 2003, CDPH explored the costs of developing and promulgating a CEQA dose-based decommissioning standard. The estimated cost at that time was between $3 and $4.9 million, with additional annual costs likely. Because public and environmental health and safety are rigorously protected by the current decommissioning process, CDPH believes pursuing a CEQA-based decommissioning standard is unwarranted. Also, developing a dose-based decommissioning standard following the California Environmental Quality Act (CEQA) process will not enhance or improve current decommissioning standards upheld by the court in the Committee to Bridge the Gap lawsuit. A new, dose-based standard would likely result in protracted litigation and raise uncertainty about the effectiveness of the standards currently in place to protect public health. Following the Court's decision in Committee to Bridge the Gap, CDPH applied a decommissioning process standard under existing law that has consistently provided a more protective public health clean up outcome than the U.S. Nuclear Regulatory Commission (NRC) decommissioning standard of 25 millirem (mrem)/year. California has consistently achieved a decommissioning level of under 10 mrem/year, with a large majority of the cleanup levels in the non-detectable range. The current process is protective of public and environmental health and has not faced legal challenges.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

Annual Follow-Up Agency Response From August 2015

CDPH determined that the costs of developing & promulgating "dose based" decommissioning standard using the CEQA process would be cost prohibitive. Also, any adoption of a new, dose-based standard would likely result in protracted litigation at substantial additional expense. The decommissioning process currently used is fully protective of public health & the environment. In evaluating its options, CDPH decided to continue to use the current, legal regulatory license termination process. This process is described in (CCR) title 17 section 30256 mandates use of a case by case approach to decommissioning & license termination which, when implemented, consistently provides a more protective clean up outcome than the U.S. Nuclear Regulatory Commission's decommissioning standard of 25 millirem (mrem)/yr. Section 30256 sets out the requirements that radioactive materials licensees must meet prior to terminating their license. The Dept. has used CCR section 30256 as the basis for termination of radioactive materials licenses for the past 13 yrs, CDPH has achieved protectiveness by mandating licensee compliance. Of the 1201 terminations since 2003, only 4 exceeded a projected dose of 1 mrem/yr &no site exceeded 3 mrem/yr. This data proves that CDPH decision not to adopt a specific dose-based release standard has led to residual dose results that are substantially lower than those that might be permitted under a dose-based standard. CDPH believes that pursuing a new "dose-based" decommissioning standard is unwarranted & unnecessary. CDPH believes requesting rescission of Gov. Davis' (EO) would be problematic, in that the EO includes a requirement that State Water Resources Control Board & Regional Water Quality Control Boards should bar the disposal of "decommissioned material" into unclassified waste management units or municipal landfills. EO instead mandates that the WRCB & RWQCB restrict disposal of "decommissioned material" to Class I & II hazardous waste landfills.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

Annual Follow-Up Agency Response From October 2013

Developing a dose-based decommissioning standard following the California Environmental Quality Act (CEQA) process will not enhance or improve current decommissioning standards upheld by the court in the Committee to Bridge the Gap lawsuit. A new, dose-based standard would likely result in protracted litigation and raise uncertainty about the effectiveness of the standards currently in place to protect public health. Following the Court's decision in Committee to Bridge the Gap, CDPH applied a decommissioning process standard under existing law that has consistently provided a more protective public health clean up outcome measure than the U.S. Nuclear Regulatory Commission (NRC) decommissioning standard of 25 millirem (mrem)/year. No cleanup levels following the CDPH process approach federal decommissioning standard. California has consistently achieved a decommissioning level of under 10 mrem/year, with a large majority of the analyses in the non-detectable range. The current process is protective of public health and has not faced legal challenges.

In 2003, CDPH explored the costs of developing and promulgating a CEQA dose-based decommissioning standard. The estimated cost at that time was $5 million, with additional annual costs likely. Because public and environmental health and safety are rigorously protected by the current decommissioning process, CDPH believes pursuing a CEQA-based decommissioning standard is unwarranted.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

Annual Follow-Up Agency Response From November 2010

The California Department of Public Health (CDPH) has determined that it will not seek rescission of Executive Order D 62 02. The implementation of the Bureau of State Audits recommendation to develop a dose based decommissioning standard following the California Environmental Quality Act (CEQA) process and the rescinding of Executive Order (EO) D 62 02 will not further enhance or improve current decommissioning standards upheld by the court in the Committee to Bridge the Gap lawsuit. The development of a new dose based standard will likely result in protracted litigation and raise uncertainty as to the effectiveness of the standards currently in place to protect public health. It should be emphasized that following the Court's decision in Committee to Bridge the Gap, CDPH applied a decommissioning process standard under existing law that has consistently provided a more protective public health clean up outcome measure than the U.S. Nuclear Regulatory Commission (NRC) decommissioning standard of 25 millirem (mrem)/year. None of the clean up levels following the process required by CDPH approach the 25 mrem/year NRC federal decommissioning standard. California has been able to consistently achieve a decommissioning level of radioactive material under 10 mrem/year, with a large majority of the analyses in the nondetectable range. The current process has been proven to be protective of public health and has remained free from legal challenges as to the public health protective outcome of the current standard.

In June 2003, the Department explored the costs of promulgating a dose based decommissioning standard. CDPH explored this option through an interagency agreement with the Department of General Services (DGS) to develop a CEQA compliant decommissioning standard. This feasibility assessment continued through September 2004. Through this collaboration, the Department concluded by February 2005, that it would not move forward with this effort. This decision was informed by:

• The costs that DGS estimated for developing and promulgating the dose based standard was approximately $5 million, with the likelihood of additional annual costs. Program funding has remained insufficient to fully support the regulatory development while maintaining CDPH inspection and response operations; and

• CDPH's assessment that public and environmental health and safety are rigorously protected through the current decommissioning process and have been shown to be health protective and legally compliant, making pursuit of a CEQA based decommissioning standard unwarranted.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

All Recommendations in 2007-114

Agency responses received after June 2013 are posted verbatim.