ML19248D740
| ML19248D740 | |
| Person / Time | |
|---|---|
| Issue date: | 07/18/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19248D738 | List: |
| References | |
| NUDOCS 7908170308 | |
| Download: ML19248D740 (31) | |
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NUCLEAR REGULATORY COMMISSION DOCKET NO. PRM-20-7 NATURAL RESOURCES DEFENSE COUNCIL, INC.
Notice of Action on Petition for Rulemaking Please take notice that the Nuclear Regulatory Commission (NRC) has denied a portion of a petition for rulemaking submitted by letter dated August 6, 1976 by the Natural Resources Defense Council, Inc. (NROC),
2345 Yale Street, Palo Alto, California, 94306.
The petition requested that the NRC immediately adopt interim regulations setting standards for shallow land disposal of transuranic (TRU) and other low-level radioactive waste as well as prepare a broad programmatic generic environmental impact statement (GEIS) on low-level waste disposal.
A notice of filing of the petition, Docket No. PRM-20-7, was published in the Federal Register on September 23, 1976 (41 FR 41759) and the public was invited to file comments on the petition within 60 days of publication of notice.
(The comment period was later extended to 90 days.)
Fourteen of the fifteen responses from industry and the States that were received by the NRC recommended denial of the petition.
In addition, t riginal petitioner (NRDC) filed an " analysis" and comments on the other somments received by the Commission.
Analysis of the issues and points raised by the petition was performed by the NRC staff when the petition was initially reviewed.
At that time, the NRC staff concluded that no compelling potential health and safety hazard existed to warrant immediate NRC reassumption of regulatory authority from r '. T ^i
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2 Agreement States, or immediate implementatica of interim regulations as proposed by the petitioner.
(NRC staff rationale for their decision regard-ing the read for immediate action as proposed by the petitioner is contained in the material presented in NRC Staff Position on Petition, which follows in this Notice.) 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 initiated and subsequently announced in the Federal Register on December 7, 1977 (42 FR 61904).
This program is currently in progress.
The regulations and supporting environmental impact statements are scheduled to be issued for public comment in 1980 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 forthcoming regulations will be of sufficient scope to address the major issues that would be included in the petitioner's pro-posed programmatic GEIS.
The issues and points raised in the petition and in the petitioner's proposed GEIS outline are, however, being considered by NRC staff as input to their development of waste management regulations and supporting envirormental impact statements.
The petitioner has been a participant in the advisory panel for the development of NRC's proposed radioactive waste classification system.
In addition, the requirements stated in the recent NRC request for proposals 03 [
3 (RS-NMS-79-026) for. assistance in the developr.:ent of the environmental impact statement (EIS) to guide and support the proposed regulation on low-level waste disposa', 10 CFR Part 61, include many of the issues and points raised by this petition.
The remaining sections of this notice include a summary of the petition, a summary of the public comments on the petition, the NRC sta'f position on the petition, a background discussion of the NRC Waste Management Regulations development effort, and a summt'y of the NRC staff response to the NRDC
" Allegations of Fact."
Summary of Petition Eriefly, tae regulations proposed by the petiti ner would have required the following:
Long-Lived Transuranic-Contaminated Waste The transfer of regulatory authority over long-lived trans-uranic waste from Agreement Scates to NRC; (7)*
An immediate end to disposal by burial of long-lived trans-uranic waste with only retrievable storage permitted; (5)
Payment of fees by persons who produce transuranic waste to finance adequately safe permanent disposal; (6)
Establishment of a reporting and inspection system operated by NRC (with on-site, unannounced inspection by NRC inspectors) to assure accurate classification of transuranic waste; (3)
- Indicates the total number of public comments received on each of the NRDC recommendations listed.
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4 Other Low-level Radioactive Waste The suspension of licensing of new or enlarged burial sites until NRC establishes site selection criteria, radioactive release standards setting maximum permissible migration rates for radionuclides away from disposal sites, minimum standards for environmental monitoring programs, and standards for long-term care with mechanisms to finance such care; (10)
Establishment of minimum fees to be paid (effective imme-diately) for each cubic foot of waste buried at existing sites to assure adequate funds for long-term care; (4)
Solidification of low-Level Radioactive Waste Before Shipment The solidification of all radioactive waste before shipment to reduce the potential for release to the environment either through accident or sabotage. (7)
The petitioner also requested that the Commission immediately prepare a GEIS on the Commission's program for disposal of low-level radioactive waste.
The petition stated that a national program for disposal of low-level waste by shallow land burial represents a major programmatic decision that must be examined in an appropriately broad programmatic GEIS.
It also stated 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 that the disposal sites can properly handle.
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5 The petition was accompanied by an appendix suggesting regulation language as well as a " Memorandum of Points" discussing the basis for the petition.
A summary of the Memorandum was included in the petition in the form of ten " allegations of. act" (petitioner's wording).
The appendix r.lso included suggestions for the scope and development of the proposed GEIS.
A copy of the petition (Docket No. PRM-20-7) with attachments is avail-able for public inspection in the Commission's Public Document Room (PDR) located at 1717 H Street, N.W., Washington, D.C.
20555.
Copies of comments on the petition are also available for inspection in t'ie PDR.
Summary of Public Comments Overall response to the petition was that it not be adopted as proposed.
Of the 15 commenters (all industrial or state groups), only one consistently supported the petitioner's recommendations, as stated.
In addition, the original petitioner (NRDC) filed comments and an " analysis of comments" on the other comments received by the Commission.*
Proposed Interim Regulations:
The comments received did not generally support the necessity of immediate adoption of interim regulations.
(The total number of public comments received on each of the NRDC-recommended regulations are listed in the Summary of Petition above.) With exception of the NRDC analysis of the comments, little rationale was given to support l
interim re Jiations.
Ten commenters stated that there was no demonstrated public health and safety risk with present practit_. and thus there was no justification or legal basis for the interim regulations.
- Material in the analysis that was not directly linked to remarks by another commenter was treated by the NRC staff in the same manner as other comments on the petition.
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6 Two of the commenters responded favorably to NRDC's proposed regulations for an immediate end to non-retrievable TRU waste disposal, and for payment of fees by nroducers of waste for long-term care.
Two of the commenters supported the proposed regulations, with one commenter noting the toxicity and long half-lives of TRU.
One other commenter suggested that an amendment to the cne disposal license
- permitting burial of TRU waste would be more workable than a rulemaking action.
The two negative commenters bolieved that the toxicity and long half-lives of TRU nuclices required careful handling but there was no urgency to the matter.
They stated that before regulations are promulgated, a study should oe conducted to define TRU waste and the methods bv which TRU waste would be disposed.
The commenters generally agreed that the producers of waste should be responsible for the costs accrued, but that setting fees by regulation was unworkable.
The comrunters were generally negative on NPDC's proposed regulations fr 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 commenters felt that the uniformity allowed by Federal control was a good idea, but that t1ere was no reason to disrupt the Agreement State program.
The commenters also thought that suspension of licensing activities was unnecessary and might not be in the public interest.
Seven commenters 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
- The only commercial burial site currently disposing of small quantities of TRU waste by shallow land burial is the site operated by the Nuclear Engineer-ing Company, Inc. (NECO) and located in the center of the Hanford Reservation near Richland, Washington.
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7 also stated that many factors should be considered before NRC requires solidif-ication of all waste--i.e., concentrations, quantities, probabilities of release, consequence, packaging, costs and benefits.
NRDC " Allegations of Fact."
Each of the ten allegations of fact made by the petitioner in support of the petition generally received f rom one to four comments, not including the petitioner's analysis.
The commenters remarked that seven of the allegations of fact were inaccurate or distorted.
One alle-gation received.a comments.
Two of the allegations of fact - (1) ERDA has prohibited burial of government-TRU waste, and (2) the Atomic Energy Commission (AEC) proposed but did not finalize regulations for commec fal-TRU waste burial - were accepted as true.
All that commented on these two allegations of fact (except the petitioner) felt that the actions discussed provided in-sufficient justification for the pecition.
(See Appendix A for a summary of NRC st # f response to the " Allegations of Fact.")
Low-Level Waste Generic Environmental Impact Statement.
Comments on the necessity of - GEIS were divided, with one commenter supporting and three opposi The supportive commenter felt that a GEIS should t,e done because low-level waste has significant environmental impacts and a comprehensive evaluation had not been done to date.
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 management GEIS being prepared by the Energy Research and Development Administration (ERDA).
(For the reader's information, on October 1,1977, ERDA was combined with other government agencies to form the Department of Energy (DOE).
In April 1979, DOE published a GEIS entitled
" Draft Environmental Impact Statement on Management of Commercially Generated U,, ] l
8 Radioactive Waste" (DOE /EIS-0046-D).
This GEIS focuses on alternative methods for permanent disposal of commercially generated high-level and TRU waste.
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 from 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 Commissi,7 concurs, is as follows:
TRU Waste Disposal - Under Section 274 c (4) of the Atomic Energy Act of 1954, as amended, NRC must determine existe,ce of a hazard or potential hazard prior to the reassertion of regulatory authority from Agreement States.
A somewhat similar finding must be made for the immediate implementation of regulations governing low-level waste disposal or prohibiting TRU waste dis-posal 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 the NRC Task Force Report, the Federal Register Notice announcing the Task Force Report (42 FR 13366, March 10, 19 7),
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9 and the Federal Register Notice announcing the NRC Low-Level Waste Management Program (42 FR 61904, De: ember 7,1917), have contained similar statements.)
NRC has already initiated a comprehensive program for development of regula-tions governing the management and disposal of all types of radioactive waste, including TRU waste.
Although it is conceivable that the NRC could initit. '
an effort '.o 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 much different than current, ongoing schedules 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-term period will elapse before executive and legislative decisions are made on the issues of management and disposal of radioactive waste 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 waste and is investigating the effects of continued short-term TRU burial as well as possible alternatives--such as retrievable storage--to TRU waste burial.
In any case, the staff believes that retrievable storage procedures similar to procedures used today by DOE for storage of TRU waste may be necessary for certain types of waste defined by the waste classification regulation when this regulation is adopted.
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 concentrations greater b-
10 than ten nanocuries per gram for burial in soil.
The disposal site is located on 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 commercial site, the disposal of special nuclear material (SNM), including plutonium, is regulated by NRC.
As Washington is an Ajreement State, the State of Washington regulates the disposal of source and cyproduct material (includ-ing TRU isotopes other than plutonium).
The limited burial to date of TRU-contaminated waste in the middle of the Hanford Reservation minimizes any potential future problems since geohydrological, meteorological, and ecological factors regarding the overall Hanford Reservation are well investigated and documented; and extensive monitoring programs are conducted by DOE in addition to those conducted by NECO.
No public health and safety problems have been identified with the operation of the commercial site.
Quantities of TRU materials delivered to the commercial disposal site are cur-rently small and, due to executive decisions deferring reprocessing of spent power reactor fuel, should remain small.
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.
The continued burial of plutonium-contaminated waste at the commercial disposal site is under independent review by the NRC licensing staff in con-sidering the renewal of NEC0's SNM disposal license at Hanford.
Washington is undergoing a similar review for wastes contaminated with other TRU iso-tapes.
A decision whether to allow or prohibit the burial of TRU waste at that site will be made in connection with these licensing reviews.
Discussions
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11 between DOE, the State of Washington, NECO, and NRC staff have been held regarding the possible discontinuance of TRU burial at the Hanford commercial site.
NRC staff understands that the Statt of Washington is considering action, under the State's authority as site landlord, to discontinue disposal of TRU waste.
Any action taken at the site regarding disposal of TRU waste will tw closely coordinated between NRC and State staff.
An alternative action (to burial) is acceptance for storage of commercial TRU waste ' y the Federal government (e.g., DOE), with a charge levied on the a
waste generator to cover costs of storage, retrieval, repackaging (if neces-sary), transport, and ultimt disposal.
In their report to the' President
(" Report to the President by the Interagency Review Group on Nuclear Waste Management," TID-29442, March 1979) recommending a national plan for radioac-tive waste disposal, the Interagency Review Group on Nuclear Waste Management (IRG) recommended that TRU waste should be isolated from the biosphere in a manner similar to that used for isolation of high level wasta.
The IRG also recommended that legislation be enactea to extend NRC licensing authority to cover DOE activities regarding new 00E facilities for disposal of TRU waste.
NRC is currently developing a waste classification regulation to deter-mine the types of low-level radioactive waste material that can be disposed of by various disposal methods.
(See Appendix A for more information.) This regulation is scheduled to be published for public comment in 1980.
As a resalt of the regulation, certain 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 accomplished in a similar
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12 manner as that used today for the storage of government produced TRU waste.
Licensing of New or Enlarged Burial Sites.
NRDC interprets the Atomic Energy Act as requiring a moratorium on NRC and Agreement State licensing of new burial sites and expansions of existing sites pending promulgation of Commission regulations governing shallow land burial.
This request is based on NRDC's findings that current NRC and State regulation is inadequate as demonstrated by waste migration and other incidents.
In addition, NRDC argues that the Commission must regulate by promulgating regulations.
Finally, NRDC relies on Section 274(c)(4) of the AEA to assert that the Commission must require Agreement States to apply NRC regulations.
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 Commission termination of an Agreement State Pro-gram pursuant to Section 274j of the AEA, or a Commission moratorium on its own licensing activities.
Furthermore, NRDC is incorrect in its legal argu-ment regarding the need for Commission regulations.
It is a well-established principle of administrative law that an agency has discretion to proceed by regulation or adjudication.
SEC v. Chenery Corp., 322 U.S. 194, 203 (1947).
This principle is especially applicable to the Commission because Congress has granted it unusually broad discretion to carry out the Atomic Energy Act.
Vermont Yankee Nuclear Power Corp. v. NRDC, 55 L.Ed.2d 450, 474 n.13 (1978);
Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
Therefore, t.e Commission is not required to impose a moratorium on the licensing of low-level waste disposal pending the promulgation of regulations.
Finally, section 274c (4)
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13 of the AEA does not support NRDC's assertion that the Commission must impose its regulations on Agreement States to satisfy the Commission's " duty" to make a continuing determination that State programs are not leading to hazardous disposal.
Seccion 274c (4) imposes no such duty of continuous Commission review.
That section allows continuance of NRC authority over the disposal of hazardous materials at the time the Commission enters into a State Agreement if the Commission by regulation or order determines that continued Federal control is necessary.
Furthermore, NRDC's " dual authority" theory is contrary to the recent decision in NRDC v. NRC. 8 ELR 20163, 201C4 (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.
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 continuing production of low-level waste at hospitals, universities, laboratories, reac-tors, etc., that requires disposal and tre only currently available dispccal method is shallow land burial.
Until the regulations governing shallow land burial and alternative disposal methods are established, applications for new or enlarged disposal sites will be handled on a case-by-case basis.
Any new licenses that are issued by NRC will be qualified by the provision that the licenses may be modified as new criteria and regulations are developed.
Be-cause of NRC's close liaison with the Agreement States, NRC staff expects that the States will initiate similar actions.
Every Agreement State's radiological health program is reviewed annually to ensure that it is adequate 7-r;h J O
14 for the protection of the public health and safety and that it is compatible with similar NRC programs.
Long-Term Care and Funding.
Issues related to long-term care and funding of commercial 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 of the existing NRC low-level waste management and regulatory development program.
In accordance with the program, NRC has initiated a number of studies to deve'.op funding standards, procedures, and predictive tools.
One particular series of studies has been contracted to determine criteria and standards regarding safety and costs related to decommissioning nuclear fuel cycle facilities.
To date, results of studies on a fuel reprocessing plant and a pressurized water reactor have been published.
These reports, along with other ongoing studies on a boiling 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, scheduled for completion this year, 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
15 long-term cc.re of burial grounds; 4.
evaluate potential record keeping needs; and 5.
evaluate the environmental monitoring needs.
NRC also plans to address through our regulations develapment effort alternative organizational roles involving low-level waste site regulation, site operation, site ownership, financial liability, decommissioning and inspection.
For use in the interim period prior to promulgation of the low level waste regulations, NRC's Division of Waste Management, Office of Nuclear Material Safety and O feguards, has prepared a technical position on require-ments on low level waste burial ground site closure and stabilization.
This technical position is being incorporated into the licenses for the three disposal facilities currently open.
A copy of this technical position is available for public inspection in the Commission's PDR.
One of the alternative methods to provide long-term funding is, as recommended 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-term care fund through fees based upon volume of materials buried poses difficult questions of law.
Although fees for use of property may be established between landlord and tenant, as is currently the case, to order a fee per unit volume of waste by Commission regulation and to establish an earmarked fund would require Congressional authorization.
A federally mandated fee per unit volume of waste that is not a product of the landlord / tenant contract, would be in essence a tax requiring y /.
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16 legislative enactment.
(See Federal Power Commission vs. New England 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 burial sites collect d;sposal fees from the site operator on a per cubic-foot basis and place the collected fees into a State fund established for loag-term care of the sites.
Three sites are presently closed and not collecting fees.
(A specific fund for long-term care of the Sheffield, Illinois site was established in 1977 in Illinois.
Illinois previously chose to assign the 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 long-term care funds or collection rates, evaluate proposed changes to long-term 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.
Transportation of Liquid Low-Level Waste.
In the request for regulations prohibiting transportation of all liquid waste, the petitioner observes that the liquid form increases the potential mobility of the waste material.
However, the existing regulations adopted by the NRC and the Department of Transportation (D0T)* specify the types and limiting concentrations of all
^In the United States, the 00T and the NRC share primary regulatory authority for transport and packaging for transport of radioactive material.
The 00T and the NRC partition their overlapping responsibilities by means of a Memorandum of Understanding, last issued in March 1973, between DOT and the Atomic Energy Commission (AEC), the predecessor of NRC.
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17 radioactive material, including liquids, acceptable for shipment as well as the packaging requirements.
As 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 contain-ment vessel.
The packaging must be adequate to prevent loss or dispersal of the contents of the inner container vessel if the package was subjected to a prescribed 30-foot drop test.
Either enough absorbent material must be pro-vided to absorb at least twice the volume of the liquid contents or a secondary containment vessel must be provided to retain the radioactive contcnts under normal conditions of transportin'g, 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 sp.cific 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 commercial 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 radio-active material (microcuries per liter) in an organic solution.
The vials are transported to disposal sites in drums containing enough absorbent
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18 material co absorb at least twice the volume of the liquid contents.
Addi-tional processing prior to disposal may be performed at the disposal sites.
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) was published in December 1977.
The statement covered the transportation of all types of radioactive material--from 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 on 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 immediate establishment of regulations prohibiting transportation of liquid waste.
Present practices of solidifying and disposing of radioactive waste are being Ndressed as part of the ongoing NRC low-level waste program.
Low-Level Waste GEIS.
The NRC staff believes that issuance of a sep-arate programmatic GEIS a3 proposed by the petitioner is in this case neither required by NEPA nor necessary to conduct NRC's existing program for study and development of regulations for low-level waste disposal.
The arguments relied upon by NRDC do not compel a GEIS.
The facts do not warrant it.
At this time, the Commission independently licenses only one such facility located b 4 u_
19 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, 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 Commission.
Natural Resources Defense Council v. Nuclear Regulatory Commission, supra.
Furthermore, NRDC's theory of continuing NRC authority over licensing actions by Agreement States leads to dual jurisdiction contrary to the clea" expression of Congressional intent in enacting section 274 of the Atomic Energy Act.
S. Rep. No. 870, 86th Cong., 1st Sess. 9 (1959).
Qual jurisdiction was also explictly rejected by the Ccurt in NRDC v. NRC, supra, which held that the Commission has no resid'ual authority over individual licensing actions taken by Agreement States.
Consequently, the only federal licensing actions by the Commission regarding shallow land burial of low-level waste are associated with the licensing of the Sheffield facility and the SNM licenses at Han' rd and Barnwell.
Any proposed licensing actions for these facilities will be assessed by NRC in accordance with 10 CFR Part 51, and if necessary, an EIS will be prepared.
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
^The disposal facilities located near Sheffield, Illinois; Beatty, Nevada; and Hanford, Washington were all originally licensed by AEC.
Since the time that these three facilities were originally licensed, both Nevada and Washington have become Agreement States.
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20 support the proposed low-level waste regulation will, in part, analyze shallow land burial in the context of alternative disposal methods for low-level waste.
Input to the analysis is being provided by a NRC-contracted study of alter-native disposal methods.
This study is identifying viable alternative disposal methods and submitting to further detailed study alternative methods determined on the basis of a preliminary screening effort.
Preliminary results of the study to date have been published in a status report entitled, " Screening of Alternative Methods for the Disposal of Low-Level Radioactive Waste" (NUREG/CR-0308), October 1978.
The alternatives study may yield several acceptable 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 criteria 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 develop technical criteria and requirements for shallow land burial and for identified viable alternatives.
NRC staff is considering the issues raised in the petition and in the petitioner's proposed GEIS outline in their development of the proposed low-level vaste disposal regulation and guiding EIS.
The request for pro-posal (RS-NMS-79-026) for this EIS includes many of these issues.
In addition to this input, NRC staff is considering public input from an Advance Notice of Proposed Rulemaking which was published in the Federal Register (43 FR 49811) on October 25, 1978, to invite public comments and suggestions on the scope, content, and issues to be addressed in the EIS.
The petition 1;
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21 and GEIS outline are also being considered as input to NRC's development of the waste classification regulation and guiding EIS.
An Advance Federal Register Notice of Proposed Rulemaking on the waste classification EIS is expected to be published shortly.
Further information regarding NRC's program to develcp low-level waste regulations is contained in Appendix A.
Y Dated at Washington, D.C. this day of
, 1979.
FOR{HEU.5.NUCLC R REGULATDRY COMMIS Os h w,/
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bam6el J. Chilk/
T Secretary of'th6 Commission d
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APPENDIX A Backaround - NRC Regulatory Development Effort NRC Task Force.
Issues related to Federal versus State regulation of commercial radioactive waste burial grounds were addressed in an NRC Task Force Report ("NRC Task Force Report on Review of the Federal / State Program for Regulation of Commercial Low-Level Radioactive Waste Burial Grcunds,"
NUREG-0217, March 1977; NUREG-0217 Supplement 1, October 1977).
These issues were raised by the General Accounting Office (GAO), the Joint Committee on Atomic Energy (JCAE), and the House Committee on Government Operations.
The NRDC petition was received after the formation of the Task Force and ref-e, enced the issues raised by the above organizations.
The petition--along with the publications and recommendations of a wide range of Congressional, technical, industrial, public, and governmental aroups--provided input to the Task Force study and was referenced 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 recommendations regarding Federal versus State regulation and other related issues currentiy affecting comuercial burial ground regulation and operation.
These recommendaticns included accelerated development of a specific regulatory program for low-level waste disposal including regulations, standards, and criteria; 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"
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2 (RUREG-0240, September 1977), including technical studies to prepare a regulatory base, development of regulations, criteria, and suoportive EIS's, and development of criteria and procedures for applicants to prepare license applications and for NRC to make uniform and timely licensing decisions.
To formulate the program, the staff considered the Task Force recommendations; public comments o i the Task Force Rrport; data gleaned from review of tech-nical documents and participation in conferences, meetings, and discussions attended by inuustrial, si. ate, and public organizations; and considerations of the poirh5 and recommendations contained in the petition, comments on the petition, and other correspondence and documents.
Periodic updates of NUREG-0240 are planned and the first update is expected in 1979.
The progress made to date in NRC's program of technical study and regulation development will be summarized in the update and further refinements to the program dis-cussed.
Radioactive Waste Classification Reoulation.
As noted in NUREG-0240, NRC plans to propose a radioactive waste classification regulation which will stipulate the kinds and quantities of radioactive material that can be disposed of by various methods.
The regulation will also outline general licensee requirements (e.g., ccnfima+.ory measurements, record-keeping, in-spectiors) that will ensure proper classification of wastes.
NRC is initiating a contractual effort to pr-epare an environmental impact statement (EIS) to guide and support the waste classification regulation.
An Advance Notice of Proposed Rulemaking will soon be published in the Federal Reoister to request advice, suggestions, anci comments on the issues, scope, and content of the EIS used to guide the regulation.
The proposed regulation, draft EIS, and draft
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3 regulatory guide which will orovide assistance to licensees in complying with the regulation are currently scheduled for publication in 1980.
As a starting point for the waste classification regulation and guiding EIS, NRC contracted a waste disposal classification system study which was initiated, in par t, to address the public comments received on a rule proposed by the AEC in 1974 to prohibit the burial of TRU-contaminated commercial waste.
In this proposed rule, commercial TRU waste in concentrations greater than 10 nanocuries per gram of material would have been consigned to retrievable storage facilities operated by the Federal government pending the development of a facility for the ultimate disposition of the waste.
However, numerous problems (e.g., poor justification for the 10 nanocurie per gram limit, no cost-benefit analysis, no accompanying regulatory. guides) were identified by persons commenting on the proposed rule, and the rule was never adopted by the AEC for ccmmercial waste.
A ten nanocurie per gram TRU burial limit, however, was adopted by AEC ~
in 1970 for government-produced radioactive waste and this limit is still in effect at sites operated by the Department of Energy (DOE).
An investigation is underway in DOE to redefine the concentration levels at which government-produced TRU nuclides may be disposed of by shallow land burial.
Some modification of the interim ten nanocurie per gram limit may result based on this investigation.
In the current waste classification study contracted by hRC, TRU waste is not classified as a seoarate waste category.
Instead, concentrations of individual radionuclides, including TRU nuclides, are classified according to the disposal requirements of the radionuclide concentrations.
In the ds g
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4 study, it was detennined that all radioactive waste disposal methods can be placed into one of three generic categories.*
1.
Isolation in a repository or disposal by ether means providing a high degree of isolation; 2.
Confinement for a period of time with controlled, predictabiy low release rates; and 3.
Discharge directly into the biosphere in a aanner similar to that utilized for municipal non-radioactive trash.
The waste disposal categories are not limited to specific disposal methods.
However, each category implies general time periods for confinement--e.g.,
thousands of years for category 1, hundreds of years for category 2, and essentially immediate release for category 3.
A classification methodology was developed which invoives identifying a set of exposure events at model waste disposal facilities, describing potential radionuclide transport to man, and calculating limiting concentrations or inventories of radionuclides in waste that may be placed in the model disposal sites to ensure tha+ specified dose guidelines are not exceeded. A status report on the waste cle 'sification methodology and applications has been Hblished ("A System for Classifying Radioactive Waste Disposal--What Waste Goes Where?", NUREG-0456, June 1978).
A Federal Reaister notice (43 FR 36722-36725) was issued to announce the availability of the document and to request public comments or. the in-progress study.
Comments received by the
- Further refinements to this basic concept regarding radioactive wastes and disposal methods are being addressed in the study.
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5 NRC will be in< 9rporated into the further development of the classification system, the completion of the study, and the development of the waste classiff-cat.on regulation.
An updated report on the classification system study is planned for publication in 1979.
Rule Makina Actions.
The licensing requirements for management and disposal of the types of waste defined by the waste classification regulation as well as the technical requirements for various disposal methoo; will be addressed in two other rule making actions.
A proposed regulation (10 CFR Part 60:
" Disposal of High-Level Waste in Geologic Repositories") plus a supporting EIS governing the management and disposal of hig' level waste are scheduled for publication in a draft form during 1,979.
Additionally, NRC is now initiating a contractual effort to prepare an EIS to guide and support the development of a proposed regulation 10 CFR Part 61, entitled " Management and Disposal of Low-Level Radioactive Waste." An Advance Federal Reoister Notice of Rulemaking (43 FR 49811) was issued on October 25, 1978 to reamst public comments on the contents and scope of the EIS and proposed low-level waste disposal regulation, which are both scheduled to be published for public comment in 1980.
The proposed low-level waste regulation will require conformance with a set of minimal acceptable perfonnance criteria while allowing flexibility in technical approaches.
The body of the proposed regulation will provide the licensing requirement for management and disposal of low-level waste, includ-ing provisions on preparation of licensing applications, Commission actions on applications, license ccnditions, tests, inspections, license modifications, and enforcement.
Institutional arrangements for low-level waste disposal
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6 facilities, including land ownership, facilities operation, financial liability, monitoring, decommissioning, inspection, and long-tem care of waste disposal facilities will be addressed.
Appendices to the low-level waste disposal regulation will specify the technical requirements for licensing of shallow land burial and alternative disposal methods, and for disposal of wastes containing very 1cw levels of radioactive material.
Specifications regarding waste form / container per-fomance, site selection and suitability, design and operation of sites, monitoring dtring and after site operations, and decommissioning will be included.
An EIS will be prepared to support the regulation that will con-sider the envircraental impacts of shallow land burial and alternative methods of low-level waste disposal.
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Summary of NRC Staff Response to NRDC Ten "Allecations of Fact" The following 10 " allegations of fact" were made by the petitioners in support of the petition for rulemaking:
1.
Two of the existing commercially-operated low level waste disposal sites have experienced migration of radionuclides away from burial trenches, less than 15 years after wastes were buried.
2.
Evidence from one commercial disposal site suggests that plutonium has migrated from the burial site to surrounding areas.
3.
The six existing burial sites were selected without adequate study of the geological, hydrological, topographical, and meteorological conditions of the areas in which the sites were located.
4.
Environmental monitoring programs at several existing waste disposal sites are seriously inadequate.
5.
Improper practices at existing burial sites have been corrected only extremely slowly and sometimes_ not at all.
6.
A radioactive liquids storage tank at one disposal site has already been the subject of sabotage or vandalism.
7.
Plans and funding arrangements for long-term surveillance of the disposal sites are grossly inadequate at several of the existing commercial burial grounds.
8.
No site selection criteria or other standards governing the opera-tion of low level waste burial grounds currently exist.
9.
The U. S. Energy Research and Development Administration (ERDA)*
- Now U.S. Department of Energy (DGE).
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2 which operates burial grounds for the low level radioactive waste gencrated by the Federal government has prohibited the burial of waste contaminated by transuranic elements.
ERDA currently requires storage of such waste so that it can be retrieved within 20 years.
10.
The Atomic Energy Commission proposed regulations prohibiting the buri'l of transuranic-contaminated waste at commercial burial grounds in September 1974, but never made these regulations final.
The detailed NRC staff response to each of these 10 allegations is available for public inspection in the Commission's Public Document Room (1717 H Street N.W., Washington, D.C. 20555).
The staff response notes that six of the 10 " allegations of fact", (Numbers 1, 3, 4, 5, 7 and 8) made by the petitioner specifically reference a report to Congress by the Comptroller General of the United States (" Improvements Needed in the Land Disposal of Radioactive Wastes--A Problem of Centuries," General Accounting Office (GA0),
January 12, 1976).
NRC staff responded to the findings and recommendations of this GA0 report by letter to the Comptroller General dated April 2,1976.
Many of the issues raised in the petition, allegations, and GA0 report were also covered in some detail in the NRC Task Force Report NUREG-0217, and were used as input for development of the NRC low level radioactive waste management program which was published as NUREG-0240.
The staff response notes that although there have been occurrences where sites have contributed radioactivity to the local environment, at no sites have these occurrences constituted a threat to the public health and sa fe ty.
The occurrences, however, have indicated a need for more specific a
3 criteria and standards for management and disposal of low level waste. A number of studies are ongoing by NRC, USGS, EPA, 00E, and State agencies to more completely assess the geohydrological characteristics of the burial sites.
These studies as well as a number of other studies are being factored into NRC development of a comprehensive regulation,10 CFR Part 61, governing the management and disposal of low level waste.
Included in this regulation will be specific requirements on waste fonn; disposal facility siting, design and operation; monitoring; and site closure, funding and long term care.
NRC's Division of Waste Management, Office of Nuclear Material Safety and Safeguards, has prepared a technical position on requirements for site closure and stabili-za tion.
This technical position is being incorporated into the licenses for the three disposal facilities currently open.
Additional technical positions are planned covering other aspects of low level waste disposal operations.
The response also acknowledges that (1) ERDA (now DOE) has an ongoing policy whereby TRU wastes are retrievably stored, and (2) the AEC in 1974 proposed a rule prohibiting burial of commercially-generated TRU waste but never made this rule final.
As discussed in the response, NRC plans to replace this proposed 1974 TRU rule with a proposed waste classification regulation used to determine the types of wastes--including but not limited to TRU wastes--that can be disposed of by different methods.
Today, the only commercial disposal site still accepting small quantities of TRU waste for shallow land burial is the site located in the center of the Hanford Reservation near Richland, Washington.
No public health ano safety problems have been identified with the operation of the commercial site.
Disposal of plutonium waste is under independent review by the NRC staff as
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4 part of their review of a renewal application for disposal of Sid waste at the site.
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