ML19241A646
| ML19241A646 | |
| Person / Time | |
|---|---|
| Issue date: | 01/02/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19241A645 | List: |
| References | |
| RULE-PRM-20-7 SECY-78-613A, NUDOCS 7907090084 | |
| Download: ML19241A646 (28) | |
Text
Enclosure 3 NUCLEAR REGULATCRY CCMMISSION OCCKET NO. PRM-20 NATURAL RESCURCES GEFENSE COUNCIL, INC.
Notice of Denial of Petition for Rulemaking Please take notice that the Nuclear Regulatory Ccmission (NRC) has denied a petition for rulemaking submil.ced by letter dated August 6, 1976 by the Natural Resou-ces Defense Council, Inc. (NR06), 2345 Yale Street, Palo Alto, (111fornic, 94306. The petition requested that the NRC imediately adopt interim regulations setting standards for shallow land disposal of transuranic (TRU) and other low-level radioactive waste as well as prepare a broad programatic generic environmental imp
.t state-ment (GEIS) on low-level waste disposal.
A notice of filing of the petition, Docket No. PRM-20-7, was published in the Federal Recister on September 23, 1976 (41 FR 41759) and the public was invited to file cements on the petition within 60 days of publication of the notice.
(The cement period was later extended to 90 days.)
The fifteen responses frem industry and the States that were received by the NRC generally (with one exception) reccamended denial of the cetition.
- n addition, the original petitioner (NRDC) filed an " analysis" and comments on the other cements received by the Ccmission.
Upon analysis of the issues and points raised by the petition at the time the petition was reviewed, the NRC staff concluded that no ccmpelling potential health and safety ha::ard existed to warrant immediate 'IRC
-O
, 7907090 310 336
. reassumption of regulatory authority from Agreement States, or immediate implementation of interim regulations as proposed by the petitioner. A broad, flexible program for the orderly development of comprehensive regulations governing the management and disposal of low-level radioactive waste by shallow land burial or other alternative methods was announced in the Federal Reaister on December 7,1977 (42 FR 61904) and this program is cur ently in progress. The regulations and supporting environmental impact statements are scheduled to be issued within the next few years and will address disposal of all nuclides, including transuranic nuclides.
The Commission believes that a separate GEIS on low-level waste disposal is neither required by the National Environmental Policy Act of 1969 (NEPA) nor necessary for the development of the NRC program.
It is intended that the environmental impact statements and other technical documentation being developed to support the forthccming regulations will be of rufficient scope to make a separate GEIS unnecessary.
Petition Briefly, the regulations proposed by the petitioner would have recuired the following:
Lanc-Lived inasuranic-Contaminated Waste The transfer of regulatory authority over long-lived transuranic waste frcm Agreement States to NRC; An innediata end to dis;:csal by burial of long-lived transuranic waste with only retriev?ble storage ;:ermitted; 310 337
. Payme't of fees by persons who produce transuranic waste to finance adequately safe permanent disposal; Establishment of a reporting and insce: tion system operated by NRC (with on-site, unannounced inspection by NRC inspectors) to assure accurate classification of transuranic waste; Other Low-level Radioactive Waste The suspension of licensing of new or enlarged burial sites until NRC establishes site selection criteria, radioactive release standards sett:ng maximum permis-sible migration rates for radionuclides away from disposal sites, minimum standards for environmental monitoring programs, and standards for long-tenn care with mechanirms to finance sucn care;
-- Establishment of minimum fees to be paid (effective immediately) for each cubic foot of waste buried at existing sites to assure adequate funds for long-term care; Solidification of low-level Radioactive Waste Before Shiement The solidificatinn of all radioactive waste before shipment to reduce the notential for release to the environment either through accident or sabotage.
310 338 The petitioner also requested that the Ccmission imediately prepare a GEIS on the Comission's program for disposal of low-level radioactive waste.
The petition stated that a national progren for disposal of low-level war's by shallow land burial represents a major programatic decision that must be examined in an appropriately broad programatic GEIS and that separate statements on individual sites would have difficulty considering the generic questions involved since the present need is to establish criteria for adequate disposal practices, for acceptable sites, and for the type of material such sites can properly handle.
The petition was accompanied by an appendix cuggesting regulation language as well as a " Memorandum of Pcints" discussing the basis for the petition. A sumary of the Memorandum was included in the petition in the fom of ten allegations of fact (petitioner's wording).
The appendix also included suggestions for the scope and development of the proposed GEIS.
A copy of t5e petition (Cocket flo. PRM-20 7) with attachments is available for public inspecticn in the Ccmissien's Public Document Rocm (PDR) located at 1717 H Street, fl.W., Washington, D.C.
20555.
Copies of c' Tents on the petition are also available for inspection in the POR.
310 u9 Sumary of Public Coments Overall response to the petition was that it not be adopted as proposed.
Of t he 15 comenters (all industrial or sta.te groups), only one consistently supported the petitioner's recommendations, as stated.
In addition, the original petitioner (NRDC) filed coments and an
" analysis of coments" on the other comments received by the Comission.
Material in the analysis that was not directly linked to remarks by another comenter was treated by the NRC staff in the same manner as other coments on the petition.
Coments did not generally support the necessity of immediate adoption of interim regulations. With exception of the NRDC analysis of the ecm-ment;, little rationale was given to support interim re.1ulations.
Ten cementers stated that there was no demonstrated public health and safety risk witn present practices and thus there was no justification or legal basis for the interim regulatl Coments on the necessity of a GEIS were more balanced, with one comenter supporting and three opposing. The supportive comenter felt that a GEIS should be done because low-level waste has significant environmei.J1 i.rpacts and a comprehensive evaluation had not been done to c! ate. Those opposing stated that there was no need or basis for a GEIS or thought that such a statement should be part of the waste managemen 310 340 GEIS being prepared by the Energy Research and Development Administration (ERDA).
(On October 1,1977, ERDA was ccmbined with other government agencies to form the Department of Energy (DOE).
DOE is continuing development of this GEIS).
Two of the comenters commented favorably c NRDC's proposed regulations for establishment of an inspection, enforcement, and reporting system for the classification of TRU waste. One stateo that such a system is at least implicit in current regulations.
One negative comente" stated that the NRC already has the authority to inspect against State-licenseo operations.
The comenters were neutral or divided on NRDC's proposed regulations for an immediate end to non-retrievable TRU waste disposal, and for payment of fees by producers of waste for long-tenn care. Two of the commenters supported the proposed regulations, with one coranenter noting the toxicity and long half-lives of TRU.
One other ccamenter suggested chan an amendment to the one disposal license permitting burial of TRU waste would be more workable than a rulemaking action.
The two nega-tive comenter s believed that the toxicity and long half-lives of TRU nuclides required careful handling but there was no v gency to the matter.
They sta;ed that before regulations are prcmulgated, a study shculd be conducted to define TRU waste and the methods by which TRU waste wculd be disposed. The comenters generally agreed that the producers of watte snculd be responsible for the costs accrued, but that setting fees by regulaticn was unworkable.
310 341 The comenters were generally negative on NRDC's proposed regulations for transfer of TRU Licensing from the Agreement States to the NRC, for suspension of licensing of new or enlarged sites until certain site criteria were adopted, and for solidification of all low-level waste before shipment.
The corrrnenters felt that the uniformity allowed by Federal control was a good idea, but that there was no reason to disrupt the Agreement State program. The comenters also thought that suspension of licensing activities was unnecessary and might not be in the public interest.
Seven comenters responded to the proposal for solidification requirements, stating that shipment of present quantities of liquid low-level waste is not a major risk and is already regulated. They also stated that many factors should be considered before NRC requires solidification of all waste--i.e., concentrations, quanti ties, probabilities of release, consequence, packaging, costs and benefits.
Each of the ten allegations of fact r. ado by the petitioner in support of the petition generally received from one to four cements, not including the petitioner's analysis. The ccmmenters remarked that seven of the allegations of fact were inaccurate or distorted.
One 4 1egation received no coments.
Two of the allegations of fnt - (1) ERDA has probibited burial of government-TRU waste, and (2) the Atomic Ene gy Cenaission (AEC) prcposed but did not finalize regulations for ccanercial-TRU waste burial - were accepted as true.
All that ccmmented on these two allegations of fact (except the petitioner) felt that the actions discussed provided insufficient justification for the petition.
310 342 Backcround - NRC Reculatory Development Effort Issues related to Federal versus State regulation of commercial radioactive waste burial grounds were addressed in an NRC Task Force Reput ("NRC Task Force Report on Review of the Federal / State Program for Regulation of Commercial Low-Level Radioactive Waste Burial Grounds,"
NUREG-0217, March 1977; NUREG-0217 Supplement 1, October 1977).
These issues were raised by the General Accounting Office (GAO), the Joint Cc=nittee on Atomic Energy (JCAE), and the House Ccmmittee on Government Operations. The NRDC petition was received after the fonnation of the Task Force and referenced the issues raised by the above organizations. The petition--along with the publications a".o recomendations of a wide range of Congressional, technical, industrial, public, and governmental groups--provided input to the Task Force study and was referene.ed in the Task Force Report.
After concluding that the States through their regulatory programs have adequately protected the public health and safety, the Task Force made a number of reccamendations regaJding Federal versus State regu'.a-tion and other related issues currently affecting comercial burial grcund regulation and operation.
These reccmmendations in ~
accelerated development of a specific regulatory program Tow-level waste disposal including regulations, standards, and critcr'3; 310 343
_g_
and studies to identify and evaluate the relative safety and impacts of alternative low-level waste disposal methods.
The staff subsequently published a program plan for low-level waste management entitled "NRC Low-Level Radioactive Waste Management Program" (NUREG-0?40, September 1977), including technical studies to prepare a regulatory base, development of regulations, criteria, and supportive EIS's, and development of criteria and procedures for anplicants prepare license applications and for NRC to nake uniform and timely licensing decisions. To formulate the program, the staff considered th.
Task Force recommendations; public comnents on the Task Force Report; data gleaned from review of technical documents and participation in conferences, meetings, and discussions attended by industrial, state, and public organizations; and considerations of the points and recommendations contained in the petition, petition coments, and other correspondence and documents.
Periodic updates of NUREG-0240 are planned and the first update is expected in early 1979. 'The progress made to date in NRC's program of technical study and regulation development will be sumari:ed in the update and further refinements to the program discussed.
As noted in NUREG-0240, NRC plans to propose a radioactive waste disposal classification regulation which will stipulate the kinds ano quantities of radioacti.e material that can be disposect of by various methods. NRC is now initiating a contractual effort to prepare cn environmental impact statement (EIS) to guide and supcort the 310 344 waste classification reculation.
An Advance Notice cf ?roposed Rulemaking is being published in the Federal Reoister to request advice, suggestions, and coments on the issues, scope, and content of the EIS used to guide the regulation.
As a starting point for tne waste classification regulation and guiding EIS, NRC contract:.J a waste disposal classificaticn system study which was initiated, in pa-t, to address the public cements received on a rule proposed by the AEC in 1974 to prohibit the burial of TRU-contaminated come cial waste.
In this proposed rule, commercial TRU waste in concentrations greater than 10 nanocuries per gram of material would have been ;onsigned to retrievable storage facilities operated by the Federal government pending the development of a facility for the ultimate disposition of the waste.
However, numerous proolems (e.g., poor justification for the 10 nanocurie per gram limit, no cost-benefit analysis, no acccmpanying regulatory guides ) were identified by perscns commenting on the proposed rule, ar.d the rule was never adopted by the AEC for ccmercial waste.
A ten nanocurie per gram TRU burial limit, however, was adopted b; AEC in 1970 for government-produced radioactive waste and this limit is still in effect at sites operated by the Decartment of Energy (COE).
An investigation is currently in progress by DOE to redefine the concentration levels at which government-produced TRU nuclices may be disposed cf by shallow land bu-ial.
It is expected that some 310 345 modification of the interim ten nanocurie per gram limit will result based on this investigation.
In the current waste classification study contracted by NRC, TRU waste is not classified as a secarate waste category.
Instead, concen-tritions of individual radionuclides, including TRU nuclides, are classified according to the disposal requirements of the rrtionuclide concentrations. Three categories of radioactive waste based on three generic modes of waste disposal have been identified:
1.
Class A Waste, which due to high or persistent and significant radiotoxicity, requires isolation in a repository or other disposal facility providing a high degree of containment; 2.
Class B Wa_sa, which is acceptable for disposal in near-surfaca disposal facilities, such as shallow lwd burial grounds, providing con-finement for a period of time with controlled, predictably low release rates; and 3.
Class C Waste, which has such low levels of radioactivity that it can be disposed of in facilities, such as sanitary landfill facilities, used for disposal of non-radioactive trash.
A classification methodology was developed which involves identify-ing a set of excosure events at medel waste disposal fas ilities, describing potential radionuclide transport to man, and calculating limiting concentrations or inv?rtories of radionuclices in waste that may be placed in the model discosal sites to ensure that specified 310 346 dose guidelines are not exceeded. A status report on the waste classification methodology and applications has been published
("A Systen for Classifying Radioactive Waste Disposal--What Waste Goes Where?", NUREG-0456: June 1978). A Federal Register notice (43 FR 36722-36725) was issued to announce the availability of the document and to request pLblic coments on the in-progress study.
Coments received by the NRC will be incorporated into the further develognent of the classification system, the canpletion of the study, and the develognent of the waste classification regulation.
An updated report on the classification system study is planned for publication in March 1979.
The licensing requirements for mnagement and disposal of the types of waste defined by the waste classification regulation i
as well as the technical requirements for various disposal methods will be ad fressed in two other rule making actions. A proposed regulation (plus a supporting EISl governing the management and disposal of high-level (Class A) waste is scheduled for publication in a draft form during 197s. Additionally, NRC is now initiating a contractual effort to prepare an EIS to guide and support the development of a oroposed regulation governing the management and disposal of low-levei
(, Class B and Class C) wastes. An Advance ~ederal Reaister Notice of Rulemaking is being issuad to request public ccmments on the contents and scope of the EIS and procosed low-level waste regulation.
wnich are both expected to be published for public comment in 1980.
310 347 The proposed low-level waste regulation will require confmnance with a set of minimal acceptable performance criteria while allowing flexibility ia. technical approaches. The body of the proposed regulation will provide the licensirg requirement for management and disposal of low-level waste, including provisions on prepcration of licensing applications, Commission actions on applications, license conditions, tests, inspections, license modifications, and enforcement.
Institutional arrangements for low-level waste disposal facilities, including land ownership, facilities operation, financial liability, monitoring, decem-missioning*, inspection, and long-term care
- of waste disposal facilities will be addressed.
Appendices to the regulation will specify the technical requirements for licensing of shallow land burial and alternatise disposal methods, and for unlicensed confinement by disposal to ordinary refuse channels or other options.
Specifications regarding waste form / container per -
formance, site selection and suitability, design and operation of sites, monitoring during and after site operations and dect:Taissioning*
will be included. An EIS will be prepared to support the reculation that will consider the en/ironmental imcacts of shallow land burial and alternative methods of low-level waste disposal.
NRC efforts to develoo institutional ar angements and technical standards for site decennissicaing and long-tern funding and care are further discussed in a following 3ection.O bt
. NRC Staff Position on Petition To recapitulate and consolidate, the NRDC petition essentially requests five kinds of actions from NRC: 1. Reassert regulatory authority for TRU waste fro.: Agreement States and limit TRU waste disposal to a retrievable form. 2. Invoke a moratorium on new or enlarged burial site licensing pending the establishment of certain requirements. 3. Establish a perpetual-care fund by regulation. 4. Restrict transportation of low-level waste in liquid form. 5. Prepare a generic environmental impact statement. The NRC staff position on these areas, in which the Comission concurs, is as follows: TRU Waste Discosal - Under Sectior. 274 c (4) of the Atomic Energy Act of 1954, as amended, NRC must determine existence of a hazard or potential hazard prior to the reasseration of regulatory authority from Agreement S ta tes. A scmewhat similar finding must be made for the innediate implementation of regulations governing low-level waste disposal or prohibiting TRU waste disposal by shallow land burial. The staff does not believe that current operation of burial grounds in Agreement States would justify the necessary finding that a hazard exists or potentially exists for exercise of this statutory authority. (Earlier NRC publications, such as Federal Recister Notice announcing the the NRC Task Force Report, .. m Task Force Repcrt (12 FR 13366, March 10,1977), and the Federal Recister }}O 3 Notice announcing the NRC Low-level Waste Management Program (42 FR 61904, 9ecember 7,1977), have contained similar statements.) NRC has already initiated a comprr hensive program for develocment of regulations governing the management and disposal of all types of radioactive waste, including TRU waste. Although it is conceivable that the NRC could init' +e an effort to develop temporary " interim" rules as suggested by the petitioner, NRC staff believes that, as a practical matter, well planned " interim" rules could not be prepared on a schedule.nuch different than current, ongoing scheduies for regulations development. To do so would delay placing the broader, more comprehensive regulations currently under development into effect. It is for these latter regulations that there is a demonstrated need. Nonetheless, an interim short-tenn period will elapse before executive and legislative decisions are made on the issues of management and disposal of radioactive wasts and prior to the completion of the regulations currently under development by NRC. The NRC staff notes the concern of the petitioner, the public, and others regarding the safe disposal of TRU and other wastes and is currently investigating the incremental environmental effects of continued short-tenn TRU burial as well as possible alternatives--such as retrievable stcrage--to TRU waste burial. In any casa, the staff believes that retrievable storage procedures similar to procedures used today by COE for storage of TRU waste may be necessary for certain types of wasts defined by the waste classification regulation when this regulation is adcoted. 510 W Today, only the site operated by the Nuclear Engineering Company, Inc. (NECO) and located in the center of the Hanford Reservation near Richland, Washington, accepts TRU-contaminated materials in concentra-tions greater than ten nanocuries per gram for burial in soil. The disposal site is located oa land leased from the Federal Government to the State of Washington, who then subleases a portion of the leased land to the disposal site operator. At the ccmercial site, the disposal of special nuclear material (SNM), including piutonium, is regulated by NRC. As Washington is an Agreement State, the State of Washington regulates the disposal of source and byproduct material (including 'RU isotopes other than plutonium), e limited burial of TRU-contamina'.ed waste in the middle of the Hanfort Reservation minimizes any potenti11 future problems since ge1 hydrological, meteorological, and ecological factors regarding the Hanford Reservation are wil investigated and documented; and extensive monitoring programs are ucted by DOE in addition to those conducted by NECO. No public health und safety problems have been identified with the operation of the ccmmercial site. Quantities of TRU materials delivered to the comercial disposal site are cur 7tly small and, due to executive decisions deferring reprocessing of spent power reactor fuel, should remain small for the next several years. }10351 Additionally, total inventories of commercial TRU waste buried at the site as well as inventories that are expected to be delivered in the next few years are small compared to the inventories already existing on the surrounding Hanford Reservation. Burial of plutonium-contaminated waste at the ccmmercial disposal site is under independent review by the NRC licensing staff in considering the renewal of NECO's SNM disposal license at Hanford. A decision whether to allow or prohibit the burial of plutonium at that site will be made in connection with this licensing review. Discussions between DOE, the State of '4ashington, NECO, and NRC have been held regarding the feasiLility of instituting a retrievable storage policy for comercially-generated TRU waste and the potential technical, administra-tive, and legal problems that could arise from such a policy. An alternative action is acceptance for storage of comercial TRU waste by the Federal government (e.g., DOE), with a charge levied a the waste generator to cover costs of storage, retrieval, repackaging (if necessary), transport, and ultimate disposal. NRC staff also notes that Federal government responsibility for comercial TRU waste and the funding for such operations are currently under consideration by the Interagency Review Group for Radioactive 'das*e Management (IRG). 310 352 As noted earlier, the NRC is now developing a waste classification regulaticn to stipulate the concentrations of particular radionuclides that can be disposed of by various generic disposal methods, This regula-tion is scheduled to be published for public comment in 1979. As a result of the regulation,.;ertain types of waste will require retrievable storage pending transfer to a repository for final disposal. It is expected that retrievable storage of such waste would be acccmplisned in a similar manner as that used today for the storage of government-produced TRU waste. Licensinc of New or Enlarced Burial Sites. NRDC interprets the Atcmic Energy Act as requiring a moratorium on NRC and Agreement State licensing of new burial sites and expansions of existing sites pending promulgation of Comission regulations governing shallow land burial. This request is based on NRDC's findings that current NRC and State regulation is inade-quate as demonstrated by waste migration and other incidents. In addition, NRDC argues that the Ccmission must regulate by promulgating regulations. Finally, NRDC relies on Section 274(c)(4) of the AEA to assert that the Ccmission must require Agreement States to apply NRC rmulations. The incidents described by NRDC have been investigated by the NRC staff. In its opinion they do not constitute health or safety hazards to the public which warrant Comission termination of an Agreement State Pro-gram pursuant to Section 274j of the AEA, or a Ccmission moratorium on its own licensing activities. Furtheracre, NRCC is incorrect in its legal 310 Ne,
~ Tu - argument regarding the need for Comission regulations. It is a well-established principle of administrative law that an agency has discretion to proceed by regulation or adjudication. SEC v. Chenery Coro., 322 U.S. 194, 203 (1947). This principle is especially applicable to the Commission because Congress has granted it unusually broad discretion to carry nut the Atcmic Energy Act. Vermont rankee Nuclear Power Coro.
- v. NxuC, 95 L.Ed.2d ?50, 474 n.13 (1978); Siecel v. AEC, 400 F.2d 778, 783 (D.C. Cir.1968). Therefore, the Comission is not required to impose a moratorium on the licensing of low-level waste disposal pending the promulgation of regulations.
Finally, section 274c (4) of the AEA does not su? port NRDC's assertion that the Commission must impose its regulations on Agreement States to satisfy the Comission's " duty" to make a continuing determSation that State programs are not leading to hazardous disposal. Section 274c (4) imposes no such duty of continuous Ccmmission review. That section allows continuance of NRC authority over the disposal of hazardous materia'.s at the time the Ccmission enters into a State Agreement if the Ccmmission by regulation or order determines that continued Federal control is necessary. Furtnermore, NROC's " dual authority" theory is centrary to the recent decision in NRDC v. NRC, 8 ELR 20163, 20164 (D.C. Cir. Jan. 6, 1978), in which the Court held the Commission retains no residual authority over individual licensing actions taken by Agreement States. Consequently, the Ccmission is not required to impose on the Agreement States regulations wnich it is not required to prcmulgate. 310 354 The staff believes that licensing new or enlarged burial grounds on the basis of need is an option which, for continued assurance of protection of the public health and safety, should not be foreclosed. There is a continuirg production of low-level waste at hospitals, universities, laborateries, reactors, etc., that requires disposal and the only currently available disposal method is shallow land turial. Until the regulations governing shallow land burial and alternative disposal emthods are estab-lished, applications for new or enlarged disposal sites will be handled on a case-by-case basis. Any new licenses that are issued will be qualified by the provision that the licenses may be modified as new criteria and regulatio'is are developed. Lonc-Tenn Care and Fundino. Issues related to long-term care and funding of comercial waste disposal sites are being addressed by NRC. The staff believes that such issues, some of which were discussed by the petitioner, can be best resolved within the framework or the existing NRC low-level waste management and regulatory development program. In accordance with the program, NRC has initiated a number of studies to develop funding standards, procedures, and predictive tools. One particular series of studies has been contracted to determine critaria and standards regarding safety and costs related to dec:mmissioning nuclear fuel cycle facilities. To date, results of studies on a fuel reprocessirg plant ar.d a pressuri::ed water reactor have been published. 310 355 These reports, along with otht? ongoing studies on a coiling water reactor and facilities associated with the front end of the nuclear fuel cycle, will provide useful data to the regulatory development effort. Of more specific significance to the effort is a study underway to evaluate the safety and costs related to decommissioning a low-level waste burial site. This study has a five-fold technical emphasis: 1. provide technical bases for the establishment of operating criteria for existing burial grounds; 2. identify long-term care requirements for burial grounds; 3. estimate future financial needs for the decommissioning of burial grounds and evaluate bases for the establishment of financial structures for long-tenn care of burial grounds; 4. evaluate potential record keeping needs; and 5 evaluate the envi:onmental monitoring needs. Another study is now being contracted to investigate the alternative institutional arrangements necessary to ensure adequate long-tern care and funding, Aisc to be addressed in this study are alternative organi;a-tion 41 roles involving low-level waste site regulation, site coeration, site cwnership, financial liability, decomissioning and insoection. 310 356
V One of the alternative methods to provide long-term funding is, as recomended by the petitioner, the establishment of a special fund based upon a cubic foot charge by NRC regulation. (The NRC Task Force recommended a Federally-administered long-term care fund in NUREG-0217.) However, the establishment by NRC of a long-tenn care fund through fees based upon volume of materials buried poses difficult questiont ' law. Although fees for use of prcperty may be established between landlord and tenant, as is currently the case, to order a fee per unit volume of waste by Ccmmission regulation and to establish an earmarked fund would require Congressional autr.orization. A federally mandated fee per unit volume of waste that is not a product of the l'andlord/ tenant contract, would be in essence a tax requiring legislative anactment. (See Federal Power Ccarnission vs. New Enaland Power Co., 415 U.S. 345 [1974]; National Cable Television Association, Inc. vs. United States, 415 U.S. 336 [1974]). The establishment of a special fund based upon such a tax would also require special legislation. Based on landlord / tenant (State / site operator) contracts authorized by State law, all six States containing commercial turial sites collect disposal fees from the site operator on a per-cubic-foot basis and place the collected fees into a State fund established for long-term care of the sites. (A specific fund for long-term care was only established with-in the last year in Illinois. Illinois previously chose to assign the M0 %7 collected fees into the State general fund.) However, as noted in NUREG-0217, no national standards are available by which States can evaluate the adequacy of existing iong-term care funds or collection rates, evaluate proposed changes to long-tenn care charges, or evaluate amounts that might be needed for corrective actions if major problems develop in site operations. Development of such standards is being addressed in the studies previously discussed as well as other staff efforts. Transcortation of Liouid Low-level Wa$te. In the request for regulations prohibit, y cransportation of all liquid waste, the petitioner observes that the liquid fonn increases the potential mobility of the waste material. However, the existing regulations adopted by the NRC and the Department of Transportation (DOT)* specify the types and limiting concen-trations of all radioactive material, including liquids, acceptable for shipment as well as the packaging requirements. Ar would be expected, materials of greater hazard or mobility are regulated more stringently than materials of lesser hazard or mobility. For example, liquid radioactive material in Type A quantities must be packaged in or within a leak-resistant and corrosion-resistant inner ratainment vessel. The packaging must be adequate to prevent loss or dispersal of the centents of the inner container vessel if the package
- In the United States, the COT and the NRC share primary regulatory authority for transport and cackaging for transpcrt of radioac*.ive material. The COT and the NRC partition their overlapoing responsibili-ties by means of a Memorandum of "nderstanding, last issued in March 1973.
310 358
_ was subjected to a prescribed 30-foot drop test. Either enough absorbent material must be provided to absorb at least twice the volume of the liquid contents or a secondary containment vessel must be provided to retain the radioactive contents under normal conditions of transporting, assuming the failure of the inner primary containment vessel. Quantities of radioactive material greater than Type A limits can be transported only in Type B packaging, which is designed to more stringent standards such as survivability under certain hypothetical accident conditions. Other, less stringent standards apply to material, such as low specific activity material, containing low concentrations of radioactivity. The few cases of shipment of low-level liquid waste do not represent a hazard to the public health and safety. Policies in effect at the comercial disposal sites require that only solid waste material may be buried. Liquids, except for liquid scintillation vials, must be solidified before burial. Liquid scintillation vials are typically small glass vials (about an inch in diameter by a few inches high) containing small quantities of radioactive material (microcuries per liter) in an organic solution. The vials are transported to disposal sites in dr'ns containing er.augn absorbent material to absorb at least 5 ice the volume of the liquid contents. Additicnal processing prior to disocsai may be perforned at the disacsal sites. 310 359 As part of a general review of the existing regulations and procedures for the packaging and transportation of radioactive materials, the NRC initiated in June 1975 the development of an " Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes." The final statement (NUREG-0170) w. .blished in December 1977. The statement covered the transportation of all types of radioactive material--frem spent fuel to low specific activity material--and indicated that transportation of radioactive material is being conducted under the present regulatory system in an adequately safe manner. Based en this statement and the staff's continuing review of potential problems associated with transport of radioactive material, the staff concludes that no health and safety problem currently exists to warrant the imediate establishment of regulations prohibiting transporation of liquid waste. Present practices for disposal of radioactive waste, including on-site solidification of low-level liquid waste and disposal of special types of low-level was:e such as scintillation vials, are being assessed as part of the ongoing NRC Icw-level waste program. Lcw-level Waste GEIS. The NRC staff believes that issuance of a separate programatic GEIS is in unis case neither required by NEpA nor necessary to conduct NRC's existing program for study and develocment 310 360 of regulations for low-level waste disposal. The arguments relied upon by NRDC do not compel a GEIS. The facts do not warrant it. The Comission independe. tly licenses only one sucn facility located near Sheffield, Illinois. Five Agreement States license five other low-level waste disposal sites pursuant to their own authorities. (At two of these five sites, Hanford, Washington and Barnwell, South Carolina, NRC issues a Special Nuclear Material [SNM] license.) Contrary to NRDC's assertion, these State actions are taken pursuant to their own authorities and not under authority delegated by the Comission. Natural Resources Defense Council v. Nuclear Regulatory Comission, supra. Furthe more, NRDC's theory of continuing NRC authority over licensing actions by Agreement States leads to dual jurisdiction contrary to the clear expression of Congressional intent in enacting section 274 of the Atomic Energy Ac+,. S. Rep. No. 810, 86th Cong.,1st Sess. 9 (1959). Cual jurisdiction was also explictly rejected by the Cou"t in NRDu v. NRC, suora, which held that the Comission has no residual authority over individual licensing actions taken by Agreement States. Consequently, the only federal licensing actions by the Comission regarding shallow land burial of low-level wastes are associated with the licensing of the Sheffield facility and the SNM licenses at Hanford and Barnwell. The-' ' ee licensing actions do not, in and of themselves, warrant a CEII. The Comissicn is currently preparing an EIS to evaluate a proposed exoansion of the Sheffield site which is currently inactive because it is filled. Such a site specific analysis is sufficient for ccmoliance with 310 3M NEPA because the impact statement will cover the full scope of the proposal's environmental impacts. Further, this facility is completely independent of any other federal-or State-licensed facility and clearly has independent utility. Trout Unlimited v. Mort s, 509 F.2d 1276, 1285 (9th Cir. 1974). Furthermore, the Comission's technical staff has determined that the geographical distribution of DOE arw State-lir msed low-level waste facilities excludes the possibility of cumulative or synergistic environmental impacts. Consequently, the impact statement will fully satisfy NEPA by evaluating the proposed license renewal application for the Sheffield site. Kleoce v. Sierra Club, 427 U.S. 390, 412-415 (1976). The technical studies being conducted and environmental impact statements that will be prepared and published to guide and support NRC's regulatory development effort will form a sufficiently large informational and decisional base to obviate any need for a separate GEIS. The EIS used to guide and support the proposed low-level waste recalation will, in part, analyze shallow land burial in the context cc al Nrnative disposal methods for low-level wasta. Input to the analysis is being provided by a NRC-contracted study of alternative disposal methods. This study is identifying viable alternative disposal methods and submitting to further detailed study alternative methcds determined on the basis of a preliminary screening effort. Preliminary results of the study to date has been published in a status report entitled, "Screeninc of Altarnative Methods for the Disposal of Lcw-level Radioactive Waste" (NUREG/CR-0308), October 1978. M 0 W>
. The alternatives study may yield several acceotable alternative methods for low-level waste disposal. As part of the NEPA process, shallow land burial must be considered within the context of other alternatives and their technical uncertainties. However, technical crii.eria and requirements for disposal by shallow land burial are needed to meet regulatory requirements for existing and any new shallow land burial sites. As guided by the EIS, NRC plans to initially develop technical criteria and recuirements for shallow land burial. Development of criteria for identified viable alternatives are programed to follow shartly. An Advance Notice of Proposed Rulemaking was published in the Federal Reoister on October 25, 1978, to invite cublic cements and sugcestions on the sco::e. content, and issues to be addressed in the EIS. Dated at Washington, D.C. this day of , 1978 For the Nuclear Regulatory Ccmission. Samuel J. Chilk Secretary of the Comission 310 363}}