ML20024H416
| ML20024H416 | |
| Person / Time | |
|---|---|
| Issue date: | 05/10/1991 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Nelson E NEBRASKA, STATE OF |
| Shared Package | |
| ML20024H417 | List: |
| References | |
| NUDOCS 9106030321 | |
| Download: ML20024H416 (20) | |
Text
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f atoy#o UNITED STATES 7g W
g NUCLEAR REGULATORY COMMISSION 1
5
'j WASHINGTON, D. C. 205%
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May 10,1991 CHAIRMAN The Honorable E. Benjamin Nelson Governor, State of Nebraska Executive Suite-P.O. Box 94848 Lincoln, Nebraska 68509-4848
Dear Governor Nelson:
Thank you for your letter of March 26, 1991, I was pleased that.you found your meetings with us in March to be helpful.
My visit with you on May 1, 1991, was also productive, and my staff and I appreciated _your hospitality.
I am writing to you now to provide our specific answers to the questions you raised in your letter. - As you will recall, I mentioned during my visit with you in your-Lincoln office that the Commission was considering its response to your March ~ 26 letter and outlined the general substance of our answers to your questions.
- 1. Can Federal law be interpreted in such a way that it could cause Nebraska
.to-lose its ability to ban out-of-state (compact) waste?
No, absent modification of_ the existing law by Congress or a failure of the
. State of-Nebraska to comply with the items of ratification.
The right of Nebraska to ban out-of-compact waste (if the site is a compact site) is-established in the Central Interstate Compact. which.was ratified by the
- Congress in Title II of Public-Law 99-240, the Omnibus Low-level Radioactive Waste Interstate Compact Consent Act.
Both the Compact and the-ratifying
. legislation are clear and _ leave little room for interpretation. According to Public-Law 99-240, an Act _of Congress is needed to amend, alter, or repeal the-consent _ing legislation or to withdraw the consent of Congress to the Compact.
However, section 212(3).of the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act (42 U.S.C.'2021d note) provides that the consent of Congress to each of the' compacts'"is granted only for so long as the regional commission, committee, or board established in the compact complies with all of.the provisions of:such Act."
Such compact compliance may be subject to differing views and therefore potentially be a matter of " interpretation" of statutory requirements.
If it is ever determined that a compact does not comply with the provisions of the Act, Congress could withdraw its consent. -A
- consequence of withdrawal of consent _would be that the host state would lose its ability to ban out-of-state waste.
L
- 2. Can the' emergency access clause be interpreted such that if the Nebraska site was Loperating and other compacts weren't, Nebraska could be required to
-take the other compact wastes pursuant to emergency access provisions?
- Yes, but only under narrowly-confined conditions.
Section 6 of the Low Level Radioactive Waste-Policy Amendments Act of 1985 provides for emergency access to disposal facilities without distinguishing between existing waste disposal facilities and future facilities. _ The Nuclear Regulatory Commission codified 9106030321 910510
criteria and procedures for making emergency access decisions in 10 CFR Part 62.
The 10 CFR 62.2 definition of " regional di3posal f acility" clearly refers to both existing and future disposal facilities. Thus it is clear that an operating low level waste disposal facility in Nebraska, as well as any other non-federal or regional disposal facility, could be subject to the emergency access provisions if ever implemented by the Nuclear Regulatory Commission.
However, it should be noted that 10 CFR Part 62 sets a very high threshold for granting emergency access (6 62.25).
As described in the Statements of Consideration accompanying the rule, the NRC's approach in developing this regulation was to " establish requirements for granting emergency access that are stringent enough to discourage the unsited states and regions from viewing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to protect the public health and safety or the common defense and security."
I am enclosing a copy of that notice and the Part 62 requirements for your information.
Please contact me if you require further assistance in regulating low-level waste disposal in your state.
Sincerely,
\\L Kenneth M. Carr
Enclosure:
10 CFR Part 62 and Statements of Consideration l
l
UNITED STATES NUCLEAR REGULATORY COMMISSION RULES und REGUL ATIONS TITLE 10, CHAPTER 1. CODE OF FEDERAL REGULATIONS - ENERGY 62.1 62.2 PART CRITERIA AND PROCEDURES FOR EMERGENCY ACCESS TO NON FEDERAL AND REGIONAL LOW LEVELWASTE 62 DISPOSAL FACILITIES
$9bpart A-General Provtstons fLLW) dispoul facihty or to any non-radioactive waste who has been denied Federal disposal facihty within a State the use of those facihties, far-that is not a member of a Compact. and "F.xtension of emergency access"
. 62 1 Purpose and scope (2) The terms and conditions upon means an evteneien of the access trist which the Commasion will grant this had been previously granted by NRC to n canons 62 4 Interpretanons emrgency access-an operating non-Federal or regional 62 5 specific esempoons (b) The regulations in this part apply low level radioactive waste disposal a2.6 Informoon couecuon reqwrements to all persons as defined by this facihty or facihties for a per od not to OMil approval.
regulation. who have been derued exceed 180 days.
Subpart B-Fiequest fe a Commission accen m extsung regional or non-
-Low. level radioactive waste" (LLW) p,,,,n,,,,,
Federallow level radioactive waste means radioactive material that-dispo sal facilities and who submit a (1)la not high-level radioactive waste.
62 11 Olms and distnbunon of a determination request request to the Commission for a spent nuclear fuel, or byproduct matenal 62 12 Contents of a request for eme pency determmation pursuant to this part.
(as defined in section lle(2) of the access Genersiinformanon (c)The regulations in this part apply Atomic Energy Act of 1954. (42 U S C.
62.13 Contents of a request for emergency only to the LLW that the States have the 2014(e)(2)lh and (2) the NRC consistent access Aherneuves responsibihty to dispose of pursuant to with existing law and in accordance 62.14 Contents of a request for an extension section 3(1)(a)of the Act.
with paragraph (a). classifies as low-of emergency access level radioactive waste.
62 15 Addihonal informahon
{6L2 DefWtions.
c2.1e Withenwalof a deternunation As used in this part:
a low-level radioactive waste disposal b ination of repetihon.
"AC M8Dj the Low Level facihty that is comtnercially operated or 6217 62.18 Demal of request.
Rada actne aste Policy Amendments is operated by a State.
Act of Iv85 (Pub. L 9M40).
uvance of a CommW
" Person" means any individual, greement State" means a Stata h -
corporation, partnership, firm, association, trust. State, public or t
e2.21 Determmatwa for granung emergency (t)lias entered mio en agreement pnvate inshtution, group or agency who i
access.
g
" g with the Nuclear Regulatory f is an NRC or NRC Agreement State
$ $','m Commission under section 2?4 of the i
ion or grant rn y a licensed genecator oflow level y
i emergency access Atomic Energy Act o!!954 (C USC.
' radioactive waste willun the scope of 3 2021); and 3 6 611(c) of this part; any Governor (or j
62.24 Extension of emergency acceu.
62.25 Crttena for a Commission (2) Has authonty to regulate the for any " State" without a Governor. the determinaucit disposal of low-level radioactive waste chief executive officer of the " State") on 62.26 Cntena for designating a disposal under such agreement.
behalf of any NRC or NRC Agreement I*'*IY'
" Commission" means the Nuclear State hcensed generator or generators of Subpart D-Termmation oMmergency Regulatory Commission or its duly low-level radioactive waste within the Acc***
authorized representatives.
scope of I 62.1(c) of this part located in 62.31 Termmenon of emergenc access.
" Compact" mecns a Compact entered his or her " State": or their duly s
into by two or more States pursuant to authorized representative, legat p
k 04 sis the Low-Level Radioactive Waste Policy successor, or agent.
Stet
. as amende. 42 U S C. tilt 2201k secs. 201. 200. n amended.
Amendments Act of 1985.
Regional disposal facihty', means a 88 Stat.1242.1248.as amended (42 U.S.C.
" Compact Commission" means the non-Federallow-levs radioactive waste 584L 5849). secs 3. 4. 5. 6. 99 5:st.1643.1644.
regional commission. committee. or disposal facility in operation on lanuary t e45.1846.1647,184 a.1649.1a50.1851.1852.
board estabbshed in a Compact to 1.1985. or subsequently established and 1853.1s54.1855.1856.1s57. (42 U.S c. zo2tc.
administer such Compact. -
operated under a compact.
2021d. 20213. 2021f).
.. Disposal" means the permanent
" State" means any State of the Umted Subpart A--General Prov1alona is latJon.of low. level radioactive waste States. the District of Columbia, and the g
pursuant to the requirements Commonwealth of Puerto Rico.
g I 62.1 Purpose and scope, estabhshed by the Nuclear Regulatory
" Temporary emergency access" c
a) he regulations in this part Commission under applicable laws, or means access that is granted at NRC's
" es(tablish for specificlow level by an Agreement State if such isolation discretion under i 62.23 of this part upon E redjonctive waste.
occurs in thia Agreement Sta te.
determining that access is necessary to (1) Criteria and pecteduras for ncy access ** means access to eliminate an immediate and serious granting er%ency access under an operstmg non Federal or regional threat to the public health and safety or t
'see%n of the Low Level Radioactive 1 w level radioactive waste disposal the common defense and security. Such I
Waste Policy Amendments Act of1985 facihty or fadhties for a pmod not m access expires 45 days after the grantir g (42 U.S C. 2021) to any non-Federal or exceed 180 days. which is granted by and cannot be extended.
regionallow level rad 6oactive waste NRC to a generator of low level i
62-1 March 31,1989
PART 62 CRITERIA AND PROCEDURES FOR EMERGENCY ACCESS"-
1 42.3 Commun6cetions.
(b) Upon receipt of a request for a requested is low level radioactive waste Except where otherwise specified.
determination. the Secretary of the w thm I 62.1(c) of this part; each communication and report Commission wiu cause to be pubbshed (e) The low.W wusk geranon conceming the regulations in this part in the Federal Register a notice facihty(ies)pr ducing the waste for abould be addressed to the Director acknowledging receipt of the request which the request is being made; Office of Nuclear Materials Safety a'nd which wdl require that pubhc comment (f) A description of the activity that Safeguards. U.S. Nuclear Regulatory on the request be submitted within 10 generated the waste:
Commission. % achington. DC 20555. or days of the date of tha notice. A copy of (g) Name of the disposal facility or may be dehvered in person to the the request will be made available for facilities which had been receivmg the Commission's offices at 2120 L Street
{is tio o c p{ gin th waste stream of concern before the Doc ent Room, generator was denied access:
c tile ik,
ville* a land' Washmgton. DC. The Secretary of the (h) A description of the low level Commission will also transmit a copy of radioactive waste for which emergency I 62.4 Interpretations-the request to the U.S. Departmer.t of access is requested includme--
Except as st>ecifically *M ? red by kers), te d.a Cuvnnois of thWates of (t)The characteristics and h
the Commission in writing, no the Compact region where the wasta is composition of the waste, including, but interpretation of the msaning of the generated, to the Governors of the not bmited to-regulations in this par' Sy any officer or States with operating non Federallow.
(i) Type of waste (e.g sohdified oil.
employee of the Commission other than level radioactive weste disposal scintillation fluid failed equipment).
a written inte.pretation by the General facihties, to the Compact Comcissions (ii) Principal chemical composition.
Counsel will be considered binding oc with operattng regionallow-leve.
(iii) Physical state (solid, bqtud, gas).
the ComInission, radioactive waste disposal facihtie, (iv) Type of sohdification media, and I 62.5 specttic esemptsons.
and to the Governors of the States in 3e (v) Concentrations and percentages of Compact Commissions with operating any hazardous or toxic chemicals.
The Commission may, upon disposal facibties.
application of any interested person or chelaung agents, or infectious or (c) Upon receipt of a request for a biological agents associated with the upon its own initiative grant an determination based on a serious and k 'ste:
exemption from the requirernents of the regulations in this part that it determines immediate threat to the common defense (2) The radaological charactenstics c!
is authorized by la w and will not and security, the Commission will notify the waste such as-endanger life or property or the common DOD and/or DOE and provide a copy of (1)The classification of the waste in defense and secunty and is othtrwise in the request as needed for their accordance with 81.55:
the pubhc interest.
considera tion.
(ii) A hst of the radionuchdes present
$ (d) Fees applicable to a request for a 8 or potentially present in the waste, their c: I 62.s information conection
- Commission determination under this 3 concentration or contamination levels.
' requirements:OUB Approval.
E part will be determined in accordance E and total quantity:
E (a) The Nuclear Regulatory 3 with the procedures set forth for special g (iii) Distnbution of the radionuchdes Commission has submitted the projects under category 12 of i 17031 of within the waste (surface or volume information collection requirements this chapter.
distribution),
contained in this part to the Office of (elin the event that the allocations or
- 05) Amount i trannanica Management and Budget (OMB) for limitations established in section 5(b) or I"""0C""[8?"*);
approval as required by the Paperwork 6(h) of the Act are met at all operating (3)The mmimum volume of the waste Reduction Act of 1930 (44 U.S.C. 3501 et non Federal or regional 11W disposal requ nas emergency access to ehmmate seg ). OMB has approved the facihties, the Couunission may suspend the threat to the public health and safety information collection requirements the processing or acceptance of requests or the cornmon defense and secunty:
contained in this part under control for emergency access determinations (4) The time duration for which number 3150-0143.
unul addit onal11W disposal capacity emergency access is requested inot to (b) The approved information is authorued by Congress.
exceed 180 days);
collection reqWrements contained in this (5) Type of disposal container or part appear in !l 6111,62.12,62.13.
I6232 Contants of a rmut fo' pack aging (55 gallon drum. box. bner.
62.14. and 82.15.
- '0*"'Y***"*
etcl.and A request for a Commission (6) Description of the volume Subpart B-Request for a Commlastort determination under this part must reduction and waste minimization Determination -
include the following information for techniques apphed to the waste which each generator to which the request assure that it is reduced to the maximum Is2at F11tng and distribution of a apphes:
determination requut.
extent practicable, and the actual (a)Name and address of the person reductwn in volume that occurred:
(a)The person submitting a request making the request; (i) easis for requestmg the for a Commission determination shad (b) Name and e ddress of the person (s) determination set out m this part, file a signed original and nine copies of or company (ses) generating the low-level mnludq-the request with the Commission at the radioactive waste for which the (1) The circumstances that led to the address specified in i 62.3 of this part.
determination is sought; denial of acces, to existing low level with a copy also provided to the (c) A statement indicating whether the radioactne waste disposal facihties.
appropriate Regional Administrator at generator la basing the request on the (2) A description of the situation that the address specified in Appendix D to grounds of a serious and immediate is responsible for cceatmg the senous Part 20 of this chapter.The request must threat to the pubbe hee!th and safety or and immediate threat to the pubhc be signed by the pecson requesting the the common defense and secunty:
heahh and safety or the common determination or the person's authonzed (d) Certification that the radioactive defense and security,indud.ng the date representative under oath or affirmation.
waste for which emergency access is when the need for emergency ecun us ider.nfet.
March 31,1989 62-2
PART 62 CRITERIA AND PROCEDURES FOR EMERGENCY ACCESS-(3) A chronology and desmption of (M Reducmg the volume of the waste, unsuccessfully. acted during the period the actions taken by the person (7) Ceasing activities that generate of the initial grant to ehmma.e the need requesting errwtgency access to present low lesel radmattive was'e; and for emergency access. Documentatwn the need for tn sking such a reque6t, (6) Other alternatives identified under must include:
including consideration of all paragraph (b)of this section-(1) An identification of additmnal ehernatives set forth in i 6213 of this (b) The request must identify all of the alternatives that have been esaluated part. and uny supportmg documentation abernataengo emerFency access durmg the penod of the initial rant, and F
as appropriate.
considered, meludmg any that would (2) A discussion of any reevaluation (4) An explanation of the impacts of require State or Compact action, or any the waste on the pubhc heahh and others that are not specified in of previously considered ahernatives, safety or the common defense and paragraph (a) of this section. The including s enfication of contmued security if emergency access is riot request should also include a attempts to gain access to a disposal granted, and the basis for concludmg description of the process used to facihty by voluntary agreement.
that these impacts constitute a serious identify the abernatives. a desenption of g 62.16 Additionalinformattort pad med,en, 4.eu % de 41-the facto 1 that were enn idned in heahh an'd safety orlhicomnIon identifying and evaluating them, a mnussmn may requne defense and secunty. The impacts to the chronology of actions taken to identify addni nelini rmation frorn a person rna ng a requot I r a Commission puhhc health and safety or the common and implement alternatives dormg the defense and secunty should elso be process, and a discussion of any actions determmation under th a part i
addressed if the generator's services.
that were considered, but not c ncenung any p rtion of the request.
includmg research activities. were to be trnplemented.
(b) The Commission shall deny a curtailed. either for a hmited penod of (c) The evaluation of each alternative request for a Commission determination time or mdehmte!y; must consider:
under this part if the person making the (5) Other consequences if emergency D) Its potential for mitigatmg the request fails to respond to a request for access is not granted, serious and immediate threat to pubhc additional information under paragraph (D Sti ps taken by the persnn health and safety or the common (a) of this section withm ten (10) days requestmg emergency access to correct defense and security posed by lack of from the date of the request for the situation requirmg emergency access access to disposal.
additional mformation, or any other and the person's plans to ehmmate the (2) The adverse effects on pubhc time that the Cornmissmn may specify.
need for additional or fu'ure emergency health and safety and the common This denial will not prejudice the ris;ht of access requests; defense and security,if any, of the person making the request to file (k) Documentation certifying that implementing each alternative, includmg another request for a Commission access has been denied; the curtailment or cessation of an determmation under this part O) Documentation that the waste (or essential services affectmg the p hc which emergency access is requested
' health and safety or the cornmon
{ 62 16 withdrswat of a determansuon could not otherwise quahfy for disposal defense and security, reque st.
g
' pursuant to the Unusual Volumes g
(3) The techmcal and economic (a) A person may withdraw a request f
for a Commission determmation under
% easibahty of each alternative includmg 3 provision (Section 5(c)l5) of the Act) or m
the erson's financial capabihty to
- 5, this part without prejudice at any time is not simultaneously under considerstmn by the Department of imp ment the alternatives; prior to the issuance of an initial Energy (DOE) for access through the (4) Any ther pertinent societal costs determination under i 62.21 of this part.
Unusual Volumes allocation.
and benefits; (b) The Secretary of the Commission invacts to N endmnment; will cause to be pubbshed in the Faderal (m) Date by which access is required, (O Any lege impedants to Register a notice of the withdrawal of a ln) Any other information which the Commission should consider in makmg "N"'
c d ng w ether the I r t e ill
"" der th* P" its determmation' comply with applicable NRC and NRC I 62E prninouon of repoouon.
{ 62.13 Contents of a request fo Agreement States regulat'ory emergency access: Atternauves. '
requirements. and in any request under thiti part, the (a) A request for emergency access under this part must include information (7) The time required to desclop and pers n making the request may impicment each alternatise.
incorporate by reference information on attematives to emergency access.
The request shallinclude a discussion of (d) The request must melude the basis contamed in a prevtous apphcation, Statement. or report filed with the the consideration given to any for Commisuon provided that these alternatives, mcluding but not linuted (1) Rejectmg each alternative. and refer;.nces are updated, clear, and to, the followmg-(2) Concludmg that no alternative is specific (1) Storage of low level radioactive avadable.
waste at the site of eneration:
I s2.te Densai ot request.
F (2) Storage oflow level radioactive i 62.14 Contents of a request for en if a request for a determinution Is waste in a licensed storage facihty; extension of emergency access.
based on circumstances that are too (3) Obtaining access to a disposal A request for an extension of remote and speculative to allow an facihty by voluntary agreement, emergency access must include:
Informed determination. the (4) Purchasmg disposal capacity (a) Updates of the information Commission may deny the request available for assignment pursuant to the required in { { 6212 and 0213: and 5') Requesting disposal at a Federal (b) Documentation that the ganerator Subpa C ssuance of a Commession lomlevel radioacta e waste disposal f the low. level radicactive waste facihty iri the case of a Federal or granted emergency acct ss and the Stat" 1 62.21 Determination for granting defense rehited generator of Ll u m which the low-level radioactive waste
.m.,g ney,,c,...
was generated have dibgently, though 62 3 March 31,1989
PART 62 CRITERIA AND PROCEDURES FOR EMERGENCY ACCESS" radioact ve waste as to source. phyocal (a) in makmg the deternanatmn and radiological charactenstica, and the required by 102 21(a) of this part the re e p of a r que ra triss determmatmn under this part from any mmtmum v lume and duration (not to Commission win determine dether the generator of low-les el radioactn e exceed 160 day 6) necessary to alleviate circumstances desenbed m the reput waste, or any Gosernor on behalf of any immediate and senous threat to for emergency access create a senua generator or generators located in his or pubhc heMth and safety or the common and munedwie threat to the Wbbc her State, the Comnussion shall def ense and security. For the Governor health and safety or the common determtne whether-I the State in which the low les el waste defense and securit).
was generated. the notincation must (b)in makmg the determ nation trut a (1) E.mergency access to a reg.unal Asposal facihty or a non. Federal indicate that no extension of emergency senous and ammediate threat custs to disposal facihty within a State that is access will be granted under i 62.24 of the pubhc health and safety. the this part absent dihgent State and Commissmn will consider.
not a member of a Compart for spenfic generator action dunng the pened of the notwithstandmg the evadabat) of an>
-..........N.. "y] f. ?.%
f,8 tud c ent tillernatne identified m i b21a of this 8C
.~
(b) The Secretary nf the Commasson part thre a t--
will cause to be pubbshed m the Federal (1) The nature and extent of the (i)To the pubhc health and safety or Register a notice of the issuance of the radiation hazard that would resuh fron (ii) The common defense and secunty; determination.
the denial of emergenc) access.
and (c) The Secretary of the Commission includ.ng considerction of-(2) The threat cannot be rnatigated by wiu make a copy of the fmal (i) The standards for radianon any alternative consistent with the deterinination avaHable for inspection m protection contamed in Part 20 of tha.
pubhc health and safety, mcludmg those the Commission's Public Document chapter; identified m I 6213.
Room. 2100 L Street NW.. Washmgton.
(u) Any standards gosernmg the (b)In makmg a detennmation under DC.
release oitadiuective materials to the this section. the Commission shall be 16223 Detemanation for granung general environment that are apphcable guided by the criteria set forth in i 62 25 tereporary emergency accou, t the facihty that generated the low of this part.
(a) The Commission may grant level waste, and (c) A determination under this section temporary emerEency access to an (tu) Any other Commission must be in wntmg and contain e full appropnate non Federal or regional requirements specihcaHy appkaue to explanation of the facts upon which the disposal facihty or facihties pronded the facihry or activity that is the subject determination is based and the reasons that the determmation required under i the emegency access requst. and for grantmg or denying the request. An 162 21(a)(1) of this part is made; (2)The extent to which essential g afbrmative determmaton must E
(b) The notiLcation procedures und r sernces affectmg the pubhc health and l 6242 of this part are complied with:
g safety (such as medical therapeutic, a designate an appropnate non-Federalor E o
a regional LLW disposal facdity or E and c diagnostic.or research actinties) will be
$ facihties for the disposal of wastes.
5 (c) The temporary emengency access g disrupted by the demal of emergency
- specifically descnbe the low level duration will not exceed forty-five (45) access.
radioactive waste as to source, physical days (c) For purposes of grantmg temporary and radiological charactenstics and the emergency access under 102 23 of this mmimum solume and duration (not to I 62.24 Wston or erregency access-part, the Commission will consider the exceed 180 days) necessary to ehmmate (a) After the receipt of a request from cntena contained in the Commission's the immediate threat to pubhc health any generator of low level waste. or any pobey Statement (45 FR 10950. February and safety or the common defense and Governor on behalf of any generator or 24.1977) for determining whether an secunty. It may also contain cond2tions generators in his or her State, for en event at a facihty or activity bcensed or upon which the detenmnation is extension of emergency access that was otherwise regulated by the Commission dependent.
initially granted under l 62.21. the is an abnormal occurrence within the i 62.22 Notice ofissuance of a Commission shall make an trutial purview of section 208 of the Energy determination.
determmation of whether-Reorganization Act of 19'4.
(a) Upon the issuance of a (1) Emergency access continues to be (d)In making the determmation that a Commission determmation the necessary because of an immediate and senous and immediate threat to the Secretary of the Commission will notify senous threat to the pubhc health and common defense and secunty custs the in writmg the following persons of the safety or the common defense and Commission wdl consider.
final determination: Ihe person makmg secunty:
notwithstandmg the asadabiM3 of or)
~
the request, the Governor of the State in (2)'!he threat cannot be mingated by alternatne identified m 10213 of this which the low level radioactive waste any alternetise that is consistent with Pdit-requmng emergency access we, pubhc health and safety; and (1) W.hether the actiuty generstmg the generated. the Governor of the State in (3) The generator of low lesel waste wastes is necessary to the protection of which the designated disposal facihty is and the State have dihgently though the common defense and secenty. and located, and if pertment, the appropnate unsuccessfully acted durms the penod (2) Whether the lack of access to a Compact Commission for such approval of the tmtial grant to eliminate the need disposal site would result m a as is specthed as necessary in section for emergency access.
simhcant disruption in that attn:ty 6(g) of the Act. For the Governor of the (b) After making a determmation that woulJ senously threaten the State in which the designated disposal pursuan to paragraph (al of this secticn.
common defense and secunty.
facihty is located and for the the requirements specihed m { { 02 21(c)
The Comnussion will consider the uew s appropriate Compact Commission. the and 62 22 of this part. must be follow ed
[d or e a tmen of er y E) notification must set furth the tensans i 162.2$ Crtteria for a Commtenton reprdmg the importance of the that emergency access was granted and o wmmate.
specifically descnbe the low-level acnnues responsible for generatmg the March 31,1989 62-4
62.25(d)
PART 62 CRITERIA AND PROCEDURES FOR EMERGENCY ACCESS"-
t.LW to the common defense and apphed, i, making a determmation emergency access is no longer necessary whdher waste to be dehvered for t einmnate an immediate threat to security. when n aluating requests based all, or m part, on a senoua and disposal under this part has been pubhc health and safety or the common immediate threat to the common defense reduced in volume to the maximum defense and securay.
and secutsh nt practicMe using andWe (b)The Commisuon may termmate a (e)in mAmg the determmahon teMoEY' grant of emerEency access if an a upphcant has provided inaccurate required by I b2 21(a)(2) of this part, the i 62.26 Criteria for designat6ng a disposal ' informahon in its epphcation for Commisuon mil consider w hether the facility.
E emergency access or if the app 5 mt has person submitting tb request-(a) The Commission shall designate faded to comply with this part or any (1l Has identhed and evaluated any an appropriate nonfederal or regional condihons set by the Commission abernative that could mitigate the necd disposal facility if an affirmative pursuant to this part.
for emergency access; and determmation is made pursuant to (2} }lan considered all perunen) factors m its evaluation of alternalises i102 2t. 02 23. or 02.24 of this part.
(b) The Commission will enclude a torbidme state.of-tbe. art terbnology and m a rm % r~ m _ mm ir
~
impacts on pubhc health and safet'y.
3)Th'eloSYedr"eEa$$v$IaltN (f)in makmg the determmation of the generator do not meet the enteria required by i B2 21(all2) of this part, the estabhshed by the hcense agreement or Commisoon will consider the license agreement of the facihty; or implementatmn el an alte natne to be (2) The disposal f acihty is in excess of unreasunable if, its approved capacity; or (1)It adversely affects pubhc health (3) Grantmg emergency access would and safety. the environment, or the delay the closing of the disposal facihty common defense and secur ty; or pursuant to plans established before the
- D "''**T'"##
',"*',( o cur il r e sat of essential cc services, affectmg pubhc health and (4) The volume of wasta equinng safety or the common defense and emergency access exceeds 20 percent of secunty; or the total volume of Icw level radioactive (3) h is beyond the technical and waste accepted for disposal at the economic capabihties of the person facihty durmg the previous calendar requeshng emergency access or 3.,,,'If, after applying the exclusionary (4)Implementauon of the alternative (c) would con!het whh apphcable State or criteria in paragraph (b) of this section, E local or Federallaws and regulations; or E more than one disposal facility is y
(5)It cannot be implemented in a g identifi d as appropriate for e
g)T e o mission shall make an designation, the Commission wil. then c naider additional factors in afhrmative determination E"
unoer { 62.21(a) of this part only if all of
- [l di "8
the alternahves that were considered (1) Type of waste and its are found to be unreasonable.
characteristics.
(h) As part ofits mandated evaluation of the alternatives that were considered (2) previous disposal practices, (3)Trans ortation by the generator, the Commission shall (4) Radio gical effects, consider the charactenstics of the (5) Site capabihty for handling waste, wastes (mcludmg: physical propertica-(6) The volume of emergency access chemical properties, radioactivity, waste previously accepted by each site pathogenicity. inf ectiousness, and haih gor the particular y' ear and over'all,
- ^ -
~
toxicity, pyrophoncity, and explosive and potennall; condition of current (7) Any other considerations deemed container; potential for contaminating appropriate by the Commission.
the disposal site; the technologies or (d) The Commission, in making its combinauon of technolopes available designation. will also consider any for treatment of the waste (includmg information submitted by the operahng incinerators. ev aporators.crystalliters; nonfederal or regional LLW disposal fluidized bed dryers; thin-film sites, or any information submitted by evaporators; extruders. evaporators: and the pubhc in response to a Federal Compactors); the sunabihty of volume Register notice requesting comment, as reduction equipment to the provided in paragraph (b) of i 62.11 of circumstances (specific activity this part.
considerations, actual volume reduction factors. generation of secondary wastes.
Subpart 0-Termination of Emergency equipment contaminahon, effluent Accesa releases. worker exposure. and equipment availabihty); and the 1 62.31 Terminsuon of emergency access.
administrative controls which could be (a)The Commission may terminate a grant of emergency access when 62 5 March 31,1989
UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS ilitt 10. CHAPTE R 1 CODE Of f tDER AL RIOULAllONS - (NLROY
-r.
PART CRITERIA AND PROCEDURES FOR EMERGE'4CY ACCESS TO NON FEDERAL AND REGIONAL LOW LEVELWASTE 62 DISPOS AL FACILITIES STATEMENTS OF CONSIDERATION
> 54 Fri 5409 Putilished 2/3/89 I ffective 3/6/89 10 CTR Part 62 Crtteria and Procedures for Ernergency Access to Non Federal and Regional Lt>w Level Waste Disposal Faclisties AGENev: Nuclear Regulatory Commissmn.
Action: Final rule.
svuuany:The Nuclear Regulatory Commismon (NKC)is issumg this rule to estabbsh cntena and procedures for fulfdhng its responsibihties associated with actmg on requests by.e n si i radioactive waste gcnerators. or State officials on behalf of those generators, for emergency access to operating, non-Federal or regionol, low-level radioactive waste disposal f acilities under section 6 of the Low,Lovel Radionctive Waste l'olicy Amendments Act of 1985 Grants of emergency access may be necessary if a generator of law.
level radioactive waste is dented access to oper8tmg low-level radiodclive weste disposal facihties and the lack of this access results in a senous and immediate threat to the pubhc health and safety or the (.ommon defense and
- secunty, EFrtctivt DATE: hhtch 6.19M Aoomass: Copies of comments received on the proposed rule and the regulutory analysis may be examined at the NRC l'ublic Document Room,21?n L Girect NW., W ashington. DC 20555.
FOM FURTHER IN8cmW ATION CONT ACT:
Jan.t 1;imbert. Division of F.ngineering Offke of Research.U S Nuclear Heguhitory Commisuon. Washmgton.
DC 20S55, telephone (301) 49Faap 62 SC-1 March 31,1989
1 PART 62 STATEMENTS OF CONSIDERATION suPPLt u t NT ARY INFORM ATIOM:
1 Introduchon and Dachg'ound accepted for disposal, and ultimately to information and certifications that NRC
- 11. Legislative Requerments deny the LLW penerators tn the
!!!, legislahve His'on dehnquent State or Compact region requires to make its determination
.C,'
further access to their facihtaen
" Temporary emergency access" to Section 6 cf the Act provides that the non Federal or regional LLW disposal facihties may be granted at the V1 The Final Rut, Vit H4honale for Cnieria Nuclear Regulatory Comrmssion (NRC)
Vill. Terrns and Condinons for Emergency can determme to grant a generator Commission's discrenon bMeuse of a Auen D>sposal
" emergency eccess" to non Federal or senous and immediate threat to the IX Ans4 sis of pubhc Cornments regionallow lesel rad;oactive wasie pubhc health and safety or the common defense and secun*y. pendmg a X Findma of No S n& cant Ennrontnental (LLW) disposal facihties if access to Commission determination as to Irr. pact Audatailit) those facihties has been denied and whether the threat could be miopted bs XI Paperwork Reduchun Act Statement access la necessary in order to chcunate suitable alternatives The grand of an immediate and termus threat to the t7ey Certihcanon pubhc health and safety or the common temporary emofpfe access espires 45 1 e o
e XIV Iwuo statement defense and security The Act ako des after it is granted XV. Let ol 5utnects requires that NRC determine whether The Act does not require NRC to i
I. Introduction and Bach pound the threat can be mit: gated by any deselop a rule to carry out its section 6 abernative consistent with the pubhc responsibilities However NRC is On December 15.1987. NRC pubbshed health and safety,includmg ceasms the issuing this rule to estabbsh the enteria in the Federal Register (52 FR 47567) a octavities that generate the waste NRC makmg the requiivd determmations for and procedures that will be used in pioposed new Part 62 to 10 CFR in order must be able, with the mformahon to implement its emerfency access prouded by the requestor, to make both emergency access. Although Congress responsibihties under section 6 of tho Low-Level Radioactive Waste Pohey determmations pnot to granung provided NKC the statutory emergenc) acces The purpose of this responsibihty for implementmg secuon 6 1
i Amendments Act of 1985 (Pub L.99-240, regulation is to set forth the cnteria and of the Act and gase the Commission authonty to decade whether access will
}anuary 15.1966). "the Act." The procedures that will be used by the be provided. emryency access proposed Part 62 set forth the criteria Commission to determme if emergency decisions are hkely to be controversia and procedures that the Commission intended to use to determine if access to a LLW facihty should be By settmg out the critene and granted.
emergency access to non Federal and procedures for making emergency l
regionallow level waste (LLWj d2sposal !! Legislative Requirements access decisions in a rule that reflects facihties should be granted. The pubhc in addition to direcung the NRC to puFic comment. NRC intends to add j
expired on February 12.1988. The NRC grant emergency access as discussed m predictabihty to the decisionmaking comment period for the proposed rule received twenty one (211 comment the Background secuon. the Act further process and to help ensure that the NRC j
letters from ten concerned citizens and directs NRC to designate the operstmg will be ab;e to make its decisions on 3
LLW disposal facihty or facihues where emergency access requests within the environmental Froups, six State the waste wil: be sent for disposalif time allowed by the Act.
governments, two LLW compact NRC determines that the circumstances Ill. Legislative Ifistory Commissions, two industnes and one nuclear information service warrant a pant of emergency access.
The legislative history of the Act NFC is required to noti'y the Cosernor The Act directs the States to develop (or chief executive officer)of the State emphasizes the Congressionalintent their own low. level radioactive wriste (LLW) disposa) facihties or to form m whic' the waste was genetMed that that emergency access be used only in sery hmited and rare circumstances and Compacts and cooperate in the ernergency access has been Frented, and that it was not mtended to be used to to net 2fy the State and Compact which development of regional LLW disposal will be receivmg the waste that circumvent other provisions of the Act.
facihties so that the new facihties will Congress beheved it was important for be available by January 1.1991 The Act emergency access to their LLW disposal the successfulimplementation of the Act f acihty is required. The Act hmas NRC estabbshes pronedures and milestones to 45 days from the time a request is that emergency access not be viewed by for the selection and development of the received to determme whether the unsited States as an alternatne to LLW disposal facihties The Act also the pursuit of the development of new emerFency access will be granted and to estabbshes a system of incentives for designate the receivmg facihty.
LLW disposal capacity. The legislatn e for f aihng to meet them, which is The Act provides thet NRC can grant history indicates that Conpess beheved meeting the milestones, and penalties that with the vanous management intended to ensure steady progress emergency access for a penod not to toward new facihty development.
exceed 180 days per request. To ensare options avadable to LLW genetmors, The major Incentive offered by the that emergency access is not abused the includmg. for example, etcrage or ceasing to generste the weste, that Act is that the States and regional Act allows that only one extension of instances where there was no Cornpacts that meet the milestones will emergency access. not to exceed 180 be allowed to continue to use the days. is to be granted per request. An alternative to emergency access would be unbkely. Congress expected that existmg disposal facihties until their extenston can be approved only if the responsible action from the generators own facihties are available. which is to LLW generator who was ongmally be no later than Januar> 1.1993 If Franted emergency access and the State and the States / Compacts should resolve unsited States or Compact regions fail to in which the LLW was generated have most access problerns thus precludmg meet key milestones in the Act. the d:ligently. though unsuccessfully, acted the necessity forinvolvmg the Federal sector in panting emergency access States or Compact Commissions with dunng the period of the in ual pont to Section 6 was included to provide a ehmirate the need for einerFency mechanism for Federal involvement as a operatmg nonfederal or regional LLW access daposal facihties are authun2ed to vehicir. of last resort.
The Act also provides that requests In developing the emergency accen demand addinonal fees for weistes for emergency access eball contain all r'ile. NRC tned to be consistent both March 31,1989 62-SC-2
PART 62 STATEMENTS OF CONSIDERATION with the actual text of section 6 of the be generally conuary to the legalative disposal facdmes. NRC would not Act and with the intent expressed by framenerk estubbsted m the Act As espect to retene a blanket request for i
Congress regarding decisions made naphmed m the Hou:,e Coninuitee on eme.gency etten for all of the LLW l
pursuant to section 6. The rule sets stritt Interior and insular Affaire Report on generated m that State. or for all of the requirements for granting emergency the Act, ratification of a Compact should LLW generated by a particular imd of access and should serve to encourage be conditioned on the Compacts actmg generator smce the need for emetp nty i
potential requesters to seek other treans in accord with the provisions of the Act.
access would be differrnt m each case
{
for resolvmg the problems created by if the Compact refuses to proude. under NRC has also assumed that repeos denial of access to 11W dnposal os own authonties.ernergenc) access f or emergenc) acccu wdi riot be made l
facihties The rule ataces the burden on undi r scetion ft Congresuonal for wastes that would otherwise qualk l
the party requestng emergency access ratificatmn of that Compact would be for W. H ty the Dw rtment of a
to demonstrate that the criteria m the null and md H R !1P. 6 m inih Energy (DOE) under the unusual
(
m!c hsst ben (net and emergency Cor:g.1st Sess., pt.1 ut 2997 (1985)-
mlumys prmsion of ibe Ati(bcMn access is needed. Apphcants for IV. NRC Approach SMSI) This rneans that NRC does not i
emergency access will have 'o provide inund to consider requesis for clear and convincing evidence that they In descloping this rule, the NRC's emergency accco for wastes gener ted a
have exhausted all other options for approach was to.
by comme +aal nudear power utanons l
managmg their waste Uy estabbshing 1 Ensure that all of the prmapal e a re it of unusual or unenpected l
strict reqmrements for approsmg prosisions of section 6 of the Act ar*
requetts for emergency access. NRC addressed m the regulation og erstmg. mamtenance repair, or safety attmtws Section Mcit51 cf the Act intends to remforce the idea that 2 Identdy the miormation and problems with LLW disposal are to be cert'fications that wdl have to be s enfically seis aside annono cu ft of g
g g
l worked out to the extent practical submitted wnh any request for g, g g
gg g g g among the States, and that ernerEency emergency access m order for NRC t l
access to custing LLW facihties will not make the necessary determmations.
used for those wastes. With ttus space l
automatuny be milable as an 3 Ensure that the entena and sened for wasies quahfpng for the
.. nusual volumes allocation? NRC u
l alternative to developing that capauty.
procedures that are estabhshed m to i
NRC beheses this mierpretation is CFR Part 62 can be implemented withm beheses emergency access should be W
Wh um i
consistent with a plam readmg of the 45 dap after NRC recenes a request as Act and the supportmg legislative spec fied in the Act.
cu it allocation is exceeded l
history.
4 Estabbsh cntena and procedures NRC considered basmg its decisions Section e{g)of the Act requires the for designatmg a site to receive the for grantmg emergency acceu solely on NRC to notify the Compact Commission waste that are fair and equitable and quantitatn e cntena. but deded against i
for the region m which the disposal that are consistent with the other that approach. % hue NRC has identihed facihty is located of any NRC grant of provisions of the Act. including the some of the westes and the <cenanos access "for such approval as may be hmits on the amount of waste that can which would create e need for requited under the terrns of its be disposed of at each operatmg facihty. emergency access. it is unlarly that all compact " The Compact Commission
- 5. Estabbsh requirements for grantmg possibihties can be predico J or "shall act to approve emergency access emergency access that are stnngent antiupated Largely became of the not later than fifteen days after enough to discourage the unsited States uncertamty af.sonated with identifyms receiving notification" from the NRC.
and regions from viewmg emergency all of the circumstances under which The purpose of this provision is to-access as an ehernative to dihgent emergency access may be required, NRC
- Ensure that the Compact pursuit of their own disposal capabihty, has avoided estubbshmg enteria w.th Commission is aware of the NRC's grant and yet flexible enough to allow NRC to absolute thresholds Instead. the rule of emergency access and the terms of respond appropriately in situations contams a combmation of qcahtaine the grant, where emergency access is genuinely and quantitatae enteria with generic
- Allow the Compact Commission to needed to protect the pubhc health and apphcabihty NRC beheses this Implement any administrative safety or the common defense and combmation proudes maumum procedures necessary to carry out the secun ty.
fleubihty in considenng requests for grant of access, and emergency access on a case by case
- Ensure that the hrhilations on
\\, Assumptions basis.
I j
emergency access set forth in section NRC made several anumptions in VI. The Final Rule 6(hlof the Act have not been exceeded developing this rule.
t However,it is clear from the NRC assumed that the wastes The final rule contams four Subparts,
(
legislative history of the Act that section requinng disposal under the emergency A. EL C. and D. These Subparts set out 6(3) should not be construed as access provision wdl be the result of the requirements and procedures to be providmg the Compact Commission with unusual circurnstances The nature of followed m requestmg emergency e veto over the NRC's grant of routine LLW management is such that it access and in determmmg whether or
[
[
emergency access. The basic purpose of is difficult to conceive of situations not requests should be granted. Each I
the section 6 emergency access where denial of access to disposal Subpart is summarized and discussed provision is to ensure that LtW disposal would create a senous and immediate here.
L sites that have denied secess to certa n threat to the pubhc health and safety or i
States under provisions of the Act will the nationel security. In most cases Subpart Meneral Nmions be made available to receive waste m generators should be able to safely store Subpart A contains the purpose and situations posing a serious and rou'mely generated LLW or employ scope of the rule, defmitions.
immediate threat to the pubhc heahh other options for managmg the waste instructions for communications with l
and safety. A Compact Commission veto without requinng emergency access.
the Commimon. and provisions relating would frustrate the purpose of the Thus. if all the LLW generators in a to mterpretations of the rule.Subpart A I
l ernergency access provision and would State were denied access to LLW states that the rule apphee to all persons 62-SC 3 March 31,1989 l
l l
PART 62 STATEMENTS OF COtJSIDERATION 4
e s defmed by this regulation who has e Subpart C-issuance of a Comraission asaileW which could potentially teen derned access to custmg Determmation mitigate the need for emergency access commercial LLW disposal facihties and who submit a request to the Commission For the NRC to Erant emergency The Commission wdl consider whether access, the Commission must first the person requnting myncy access for an emergenc) access determmation conclude that there is a serious and has considerrd all factors in the under section 6 of the Low-Lesel immeduite threat to the public health et aluation of shernative m!uini; Raicactne Weste Pobey Amerydments ed ufcy a b wmtnen defense and stateof the. art technolon and the Act of 1M %Apr: A Au mpn sues security. and second that there are no impacts of the alternatnes on the pubhc that the emergency access rule apples n ailable mitigating altematives health and safety. For each alternatae.
only to those subdasses of LLW foi Subpart C sets out the procedures to be the Commission will also consider which the States have disposal foHowed by the Commission in whether the requestor has demonstrated renpunubihty under Section 3(IHe) of meider n3 requests for emergency that the implementation of the the Act.
access, for grantmg extensions of chematin is unreasonable because of bpart it--Request for a Commasion a ns and for antmg adserne ellects on the pubhc heahh and y or the common defense end estabbshes the cnteria and standards to secunty, because it is technicaHy or Subpart D speufies the mformation be used by the Commission m making econ mically beyond the capabihty of that rnust be sobrnetted and the those determmations. and specifies the the requestor. or because the alternative procedures that must be followed by a procedures to be followed in tasumg could r.ot be implemented m a timely person seekmg a Comrrussion them
- manner, determination on emergency access.
Subpart C provides that NRC. in Of particular concem to Congreon was Specifically. Subpart B requires the determining whether (tere is a senous the possibihty that ceasing the activity subruission of mformation on the need and immediate threat to the pubhc responsible for generatmg the waste for access to LLW disposal sites. the health and safety, will consider- (1) The could lead to the cessation or quantity and type of metenal requinns nature and esten < f the radiation curtailment of essential medical dapossl. impacts on health and safety hazard that w oulo.esult from the denial services Sectmn 62.25 of the rule or comrnon defense and secunty if of access includmg consideration of the provides that the Commission will emergency access were not granted. and standards for radiauon protection consider the impact on medical scruces consideration of avauable abernatives corstained in to CFR Part 20. any from ceasmg the activity in rnaking its to emergency access. This information standards governing the release of determination that there is a senous and will enable the Commission to radioactive materials to the general immediate threat to the pubhc health detenmne envuonment that are appbcable to the and safety.The Commission is also (a) Whether a senous and immediate facihty that generated the low lev-l concerned as to whether the threat to the public health and safety or waste. and any other Commission implementation of other alternatives the common defense and secunty might requtrements specifically apphcable to may have a disrupttve effect on cust the facibty or activity which is the essential medical services. Section 0:L (b) Whether attematives exist that suWect of the emergency access request Wh4WSONWM could mitigate the threat' and and. (2) the extent to w bich essential these impacts as part of a request for (c) %,hich non-Federal disposal services such as medical, therapeutic, emergency access so they can be facihty or facihties should provide the diagnosuc. or research activities will be considered by the Commission in its required disposal-disrupted by the denial of emergency overall determmation about reasonable
- access, alternatives in addition. Subpart D also sets forth in determming whether there is a Accord 2ng to the procedures set wt m procedures for the filmg and distnbution serious and immediate threat to the Subpart C. the Commission wiu only of a request for a Commission common defense and secunty, Subpart make an affirmative determination on determination. It provides for publishing C provides that the Commission will grantmg emergency access if the in the Federal Register a notice of receipt of a request for emergency consider whether the activity generating available alternatives are found to be the LLW is necessary to protect the unreasonable.lf an alternative is.
access to irform the pubhc that common defense and secunty and determined by NRC to be reasonable.
Commission action on the request is whether the lack of access to a disposal then the request for emergency access pending Although comment is not site would result in a sigmficant will be denied required by the Act or the disruption in that actmty that would if the Commission determines that Administratne Procedure Act. Subpart senously threaten the common defense there is a senous and immediate threat B provides for a 10-day pubhc comment and secunty. Subpart C also specifies to the public bealth and safety or the period on the request for emergency that the Commission will seek and common defense and security which access.
consider DOD and DOE viewpoints on cannot be mitigated by any alternative, In the event that the case for the importance of the activities then the Commission will decide whicl-requestmg emergency access is to be responsible for generating the LLW to operating non-Federal LLW disposal based totaUy or in part on the threat the common defense and secunty.
facihty should receive the LLW posed to the common defense und Under Subpart C,if the Comaussion approved for emergency access security. Subpart D specifies that upon makes either of the above disposal.
receiving such a request. NRC will determmations in the affirmatne then Subpart C sets out that in designatmg consult with the Department of Energy the Commission wiu consider whether a disposal f acdity or facihties to provide (DOE) and or the Department of Defense alternatives to emergency access are -
emergency access disposal. the (DOD) to ascertain the unportance to the available to the requestor.The Commission will first consider whether common defense and secunty of the Commission wiu consider whether the a facihty should be excluded from activities producing the LLW for which person subautting the request has consideration because:(1) The LLW emergency access is requested.
identified and evaluated the alternatives does not meet the bcense entens for the 4
March 31,1989 62-SC-4
PART 62 STATEMENTS OF CONSIDERATION site. (2) the disposal facihty meets or Neither the Act nor its legislatne history founded would be ao unacceptable exceeds its capacity limitations as set provide elaboration regardmg threat to the pubhc health and safety, out in the Act. (3) granttnp emergency Confessional intent for what would and should be considered for emergency access would delay the planned closms constitute "a serious and tmmediate access of the f acihtb or (4) the volume of the thrM "
The legislative history of section 6 of wast r@mg disposal exceeds 20 (11 To the Pubhc health and safety-the Act does not provide any percent of the total volun'e of the Llw The criteria m this rule for illustrations of a situation where a accepted for dispowl at the ole m the deternanmg whether a serious and senous und immediate threat to the previous calendar year 11the intmediate threat to the pubhc health pubhc health and safety would be designation cannot be
'de on these and safety exists address three created at the facihty at which the f actors alone. then the t.,ommission will situations Section 62.25(b)(i) addresses waste is stored although it is clear that consider the type of waste. previous the situabon where the lack of access Congress w as concerned over the disposal practices transportaban would resuh in a radiat on hazard at the potential radiation harard that might requaements. ra diological effect s. site facihty that is generatir.1 the 11W.
result at a particular facibly that w as capabihty for handhng the waste.
Section 6225(b}(u) addrs sses the den ed access to L1W disposa The volume of emergency access waste situation where the threat to pubhc Commission dot a not anticipate any previously accepted at each site, and health and safety would : esult from situation where the lack of access would any other information the Commission disruption of the activity not generates create a serious and immediate threat to deems necessary.
the waste, for example, a essential the pubhc health and safety However, in making a determination regardmg a rnedical service. Section 62.25(c) in order to be able to respond to the request for en extension of emergency addresses the critene for grantmg unhkely. but stdl possible. situation access. Subpart C provides that the temporary emergency access where a serious threat to the pubhc Commission will consider whather the The entene used in this rule fur health and safety might result, this rule cirrumstances stdl warrant emerency determming whether a senous and estabbshes entena to address this access and whether the persen muking immediate threat to the pubhc health the request has dihgently acted dunng and safety exists is quahtative in nature poss bihty. Under its nonnal regulatory the penod of the initial grant to in order to p evtja th. :ommission with responsibd. ties and authonty, the chmmate the need for emergency the fleubihty necessary to consider a Commission would act immediately to access.
wide range of potential factm prevent or mitigate any threat to the pubhc health and safety. includmg in making a determination that situations. However. in makmg this temporary emergency access is quahtative determination. the cntena shuttmg down the facdity. However, necessary the Commission will have to require the Commission to consider there may be circumstances where a consider whether the emergency access seseral existmg quantitaine standards.
potential safety problem would stdl situation falls within the entena and These consist of the Commiesion's exist, after the facibiy was shut down or examples in the Commission a pobey standards for radiation protection in 10 the acuvity stopped. tf the low les el statement on abnormal occurrences but CTR Part 20. any standards on the waste could not be disposed of because of denial of access. In this situation.
will not have to reach a determination release of radioactive matenals to the regardmg mitigatmg alternatives.
general environment that are apphcable emergency access may be needed. The to the facdity that generated the LLE C, ommission would emphasize first. that Subpart D-Ternunation of Emergency and any other Commission requirements """ " * * "" #
- I***"
ACC"'
specifically apphcable to the facihty or and immediate threat to the pubhc Subpart D estabhahes that the NRC activity which is the subject of the health and safety wdl ever result at the may term nate a grant of emergency emergency access request.'nus latter generator a facaty from b M of access if the requestor or the type of category would include hcense access to a disposal facihty and, waste do not meet the conditions provmons orders. and similar set nd. if such a situation does cust.
estabhshed by NRC pursuant to this requirements.
the Commission will move immediately part. It also estabbshes that the The Congressional conc arn in to ehtinate the threat.
Commission may terminate emergency enactmg section 6 of the Act was to if the Commission does recen.e a access when it determmes that ensure that a senous and immediate request for emergency access based on emergency access is no longer necessary threat to the pubhc heahh and safen did the above circumstances. the to protect the pubhc health and safety or not resalt from a denial of access. In Comnussion will evakate the nature the common defense and secunty from a addressing this concern, the and extent of the radiation hazard. If senous and immediate threat.
Commission wdl evaluate the request there is no violation of the Commission's Vll. Rationale for Criten,a for emergency access in its entirety, l.e.,
generic or f acihty-specific radiation the threat to pubhc health and safety protection standards, no senous and This rule estabbshes the critena for and the alternatives to emergency immediate threat would cust from the rnaking the emergency access access that may be avadable to mitigate waste itself. Triis is separate from a determmations required by the Act The that threat. In other words. in i ndmg that a senous and immediate rationale for these decisions is determmmg what constitutes a senous threat to the pubhc health and safety discussed below; and immediate threat to pubhc health would exist if the activity were forced to (a) Determination that a Serious and and safety the Comrnission must shut down.
Immediate Threat Exists c nsider what threat would be Section 6(d) of the Act allows the unacceptable assunung that no Commission to grant temporary Estabhshing the criteria to be used in alten.atives are available. In the emergency access for a penod not to determinmg that a senous and Commission's judgnent, any situation exceed 45 days solely upon a fmdmg of immediate threat exists to the pubhc that would result in exceedmg the a serious and immediate threat to the health and safety cr the common occupational dose hmits or basic hmits pubhc health and safety. In order to defense and secunty is key to NRC's of pubhc exposure upon which certain grant temporary emergency access. the decisions to grant emergency access reqwrementa m to CFR part 20 hre Commission is not required to evaluate 62-SC-5 March 31,1989
PART 62 STATEMENTS OF CONSIDERATION the availabihty of alternatives to NRC considered several approaches and recommendations full consideration emerFency access that would mitigate fer involvme DOD an't DOE M th:
In nalusting refuesis for emergency the thrut. The Cviniidition biiievei protess of determinmg whether requests access, the Commission will not treat thet grants of temporary emergency for emergency access should be granted them as conclusiv e.
.ess should be reserved for the most on toe basis of a serious and imrnsdiate r
serious threat to public health and threat to the common defense and (b/ Determmotion on Mityoung Aj'"##
safety, and has accordingly estabhshed security. in the proposed rule NRC critena for granting temporary decided that the best way to provide As directed by secuon 6 of the Act, emergney access that require the sd mieraction would be to require that even if a situation exists which poses a consideration of more serious eur tu teque s% fded with NRC for emergency serious and immediate threat to the for purposes of granting temporary ames en the baus of a serious and pubhc health and safety or the common emergency access unJer i f,223. the immediate threat to the common defense defense and security, emergency access Comrn seion will conoder the criteria end secur:ty. woisld have to include is not to be granted if alternatnes are and examples contained in tne uppropriate certification from DOE and asallable to mitigate the threat in a Commission's Pohey Statement (45 FR or DOD substantiating the requestor's manner consistent with the pubhc health 20050. February 24,1977) for determming cleim that such a threat would result if and safety. Requestors for emergency whether an event ut a laohty or actnity emergency access is not granted NRC access are required lo demonstrate that hcensed ut otherwn.e regulaied by the pronmed that the necessary certification they have explored the alternatnes Commission is an abnormal occurme m the forrn of a statement of support available and that the ori!y course cf withm the purview of section 208 of the stmul41 be crouired by the requestor action remaining is emergency access.
Energy Reorganization Act of 1974 This to a to applymg to NRC for emergency Only after this has been demonstrated provision requires the Commissmn to a rco su the statement of support could to NRC will the Agency proceed with a keep Congress and the public informed be a part of the actual petition-grant of emergeni
- access.
of unscheduled mctdents or events Discussions with DOD and DOE Alternatives wP 1 at a minimum, a which it considers sigmficant from the regardmg the proposed arrangement requestor will have to evaluate are set standpoint of pubhc health and safety.
have led NRC to include a modified out in section Mc)ltliB) of the Act. They Under the criteria estabbshed in the procedure in the final rule. A generator include (1) storage of LLW at the site of Commission's pohey statement, en es ent whose request for emergency access is generation or in a storage facihty. (2) will be considered an abnormal based m whole or in part on a serious occurrence ifit involves a major and immediate threat to the common obtaining access to a disposal facihty by reduction in the degree of protection defense and security is no longer voluntary agreement,131 purchasing provided to pubhc health and safety, required to include a DOD and or DOE disposal capacity available for assignment pursuant to section $(c) of Such an event could include-statement of support for that claim in
- a. Moderate exposure to, or release of, the request package subrnitted to NRC.
the Act, and (4) ceasmg the actmties radioactive material; Rather. NRC will consult with DOD and that generate the LLW,
- b. Major degradation of safety related or DOE directly to ascertain the While section 0(c)(11fB1 of the Act sets equipment, or importance of the activities responsible these out as possible alternatives which
- c. Major deficiencies in design.
for generating the LLW to the common a generator must consider before construction, use of, or rnanagement defense and security. In reaching a requesting emergency access. NRC has controls for licensed facihties or determination as to whether emergency identified other possible alternatives to activities access should be granted in order to emergency access which should be in deciding whether to grant protect the common defense and considered. as appropriate. In any temporary emergency access, the security, the NRC will consider whether requests for emergency access. These Commission will evaluate whether the DOE and or DOD support the additional alternatives are discussed D'I "'
emergency access situation falls within generator's claim regardmg the strategic the criteria in the Commission's policy importance of the acovity.
Wumes,5(c){5) of the Act., Unusual 6'CliOU statement on abnormal occurrences.
Negotiations with DOD and DOE provides owners and (2) To the common defense and reFarding this procedure were underway operators of commercial nuclear security-m parallel with the development of the reactors with special access to disposal Although NRC is required by the Act final rule. Letters of intent between the -
in the event that unusual or unexpected to determme that there is either a NRC and DOD and DOE that estabbah operating. maintenance, repair or safety senous and immediate threat "to the the process for obtaimng the DOD and activities produce quantities of waste pubhc heahh and safety." or to "the DOE recommendations on the which cannot be otherwise managed or camon defense and security "
importance of the requestor's activities disposed of under the Act NRC ooes not reabstically NRC cannot make the latter to the common defense and security are consider that Congress mtended that judgement without some information expected by the time the rule is disposal under the emergency access from DOD and DOE which will assist pubhshed DOD and DOE staffs are provision was to apply to the section SRC in identifying those situations aware of the 45 day response time 5(c)(5) wastes unless the capa ity involving the denial of access to LLW imposed on NRC to rnake the emergency required for disposals under the unusual disposal which constitute a serious and access determinations and the volume provision would exceed the immed. ate threat to the naticnal defense agreement will provide for expeditious 600.000 cubic feet allocated for those and security, or the importance of a action by DOD and DOE, purposes Thus. NRC has taken the particular LLW generator's activities in Congress deliberately gave the NRC position in this rule that as long as maintaining those objectives. While the responsibihty for making the unusual volumes disposal capacity is NRC has the Congressional mandate for common defense and security available for LLW which quahfica for this determir.ation. the staff behese it determination rather than leaving the such disposal emergency access shoubl necessary to consider DOD and DOE determination with DOD or DOE. So not be requested Apphcations for info mation as part of the while the Commission intends to give emergency access for wastes which decisionmaking process.
the DOD and DOE statements of support NRC determines would otherwise be March 31,1989 U
PART 62 STATEMENTS OF CONSIDERATION ehgible for disposal H-the.muual requinns disposal e xceeds 20 percent of recone the llW This rnay have to be
~
voiumcs provision, will be denied the total volume of the 11W aucpted addrosed by Congress at tiorne time m Another attemative opphes only to for disposal at the site m the prevmus the future.
Federal or defense related generators of calendar year.
L.W. NRC will espect that generators of if NRC carmot designate a stic uung Id/ LWume Reductwn Defermmatmn LLW falhng trito either of these the hmitabons in the Act alone. the Section @) of the Act reqmres that categones wdl atternpt to strange for Commmsmn wdi conode r othe r haiors un> ll W dAered for disposal as a disposal at a f ederal dW disposal includmg the type of waste, previous rnult of N' a decision to gtant facility pnor to requesting access to dis; mal pracoces. transporta non emergency muess "should be reduwd in non Federal facibues under the requirementr. radiolognal ef fects c! the solume to the maximurn extent emerFency access provision.
waste, the repability for handlmg the pract cable " NRC will coluate the The Commission fully miends that the weste at crch site, the volume of entent to which volume reduction States and Compacts whose generators emeryene3 access waste prevwus!y methods or techmques will be or hase have been denied ac4 ess to LLW accepted b) each site. and any other been upphed to the wasten granted d:sposal wdl share in the retiponsibihty infortnatwn that would be nec esm) m emergency au ein in order to arrne at a for identifymg and proudmg order to come tu a ole deognaaon imamg m reprds to this provismn alternatives to emergency access NRC's decismn e spectation is that the States and Withm the requirements of the abose Ni<C may receive a requent for appropnate Compacts as well as the cntena. the NRC w 11 to the extent emergency earns where the appbrat;on generator, wdl each exhaust their practical, anempt to distribute the waste of solume reducuon teclunques may be options before ernergency access will be as equitably as possible among the sufhcwnt to mingaic the threat posed to requested A request for emergency available operstmg. nonfederal or the public health and safety, As a result.
access is to include a discussion of the ecgional LLW disposal facihties lo the NRC plans to evaluate the entent to considerauon given to any alternatnes extent prochcable. NRC intends to wbch waste has been reduced in vdame as a p.irt of its mandated available to the requestor. To NRC. this rotate the designation of the receiving esu!unhan of the alternatnes includes State / Compact options as well site. and, for the three cunently as those avadable to the individual operating facihties. to allocate considered by the generator. I' rom that cWuanon. the NRC could reach a generator.NRC expects that any request emergency ac. cess disposalin proportmn would address the alternatives explored to the volume hmitations estabbshed in fmdmg on whether the waste has been by each of these, and the acSons taken, the Act. In most cases. NRC would reduced m a manner conssetent with For all the alternatives that are a 4pect that the designanon of a single section 0(il.
considered, NRC is reqmnng detailed site will mmimize handhng of and As is so for the other ditermmatmns information from the requestor regarding exposure to the waste and best serve NRC will base to make puniuant to the decision process leadmg to a request the interest of protecting the pubbc
'" U "" E
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for emergency access The requestor will health and safety. lioweser,if the deternunations wdl be made on a case.
be expected to:(t) Ucrnonstrate that all volume of waste requiring emergency Mase basis De opumallnelof pertment alictnahves have been access disposal is large, or if there are voluna reduchon wdl vary with the considered (2) provide a detaded other unusual or extenuatmg weste Ow c nditions under which it is analysis companng all of the circumstances. NRC will evaluate the being processed or stored. the alternabwes conitidered. (3) demonstrate advantages and disadvantages of administrabve options available. and that consideration has been given to designating more than one site to whether volume reduction processing combining alternatives in sorne way or receive waste from the same requestor.
C"d'""'"***'""4"'""8'""""""'
in some sequence either to avoid the in addiuon to the above. NRC will or disposal. In evaluating whether the need for emergency access, or to resolve also consider how much weste has been wasta pn)poned for emergency access the threst, even on a temporary basis, designated for emergency access have been reduced in volume to the until other arrangements can be made; disposal to each site to date (both for mastmum extent prachcable. NRC will (4) evaluate the costs. economic the year and overal 1. and whether the C"" der the charactenstics of the feasibthty, and benefits to the pubits senous and immed. te threat posed wasies (includmg physical properties.
health and safety of the potential could best be mitigated by designating themaal properues, radioactivity, alternatives, and (5) incorporate the one site or more to receive the waste, pathogenicity, infectiousness and results into the request.
In order for NRC to make the most toutetty pyrophoncity. and explosive (c) Designation of Site equitable site designation decisions. the potential). condihon of current Agem v wdi have to be wellinformed container potential for contanunutmg in decidmg which of the operstms.
regarding the status of disposal capacity the disposal site; the technologies or nonfederal or regional LLW disposal for each of the commercially operating combination of technologws available facihtles wdl receive the LLW requiring waste disposal facihties NRC is for treatment of the waste (including emergency accus NRC will determina which of the disposal facthties would currently in the process of developing e incmerators evaporators.crystalkners; system to provide this informanon.
fluidtzed bed dryera-thin-film quabiy under the hmitations set out in it should be noted that in setting out naporators. estruders evaporators. and sectmn O(h) of the Act. Accordmg to the site designahon provision for section Compactors), the suitabihty of volume those hmitations. a site would be
- 5. Congress assumed there would reduction equipment S the e scluded from receiving emergency always be a site deemed appropriate to circumstances (specific activity access waste if(tl the LLW does not receive the emergency accus waste.
considerations, actual volume reduction meet the hcense critetta for the site;(2) llowever, this may not be the case if all factors, generation of secondary wastes.
the disposal facihty meets or exceeds its sites are ehminated by appbcation of equipment contamination, effluent capactty hmitatwns as set out in the the hmitations provismn set forth in the releases, worker exposure. nnd i
Act. (31 granhng emergency access Act. It is not clear what options eqmpment availabihty) and the l
would delay the planned clusmg of the Congress intended NRC to consider if all admmistrative controh which could be l
fai.ihty; or (4) the volume of the waste sites are deerned snappropnate tu apphed 62-SC-7 March 31,1989
PART 62 STATEMENTS OF CONSIDERATION Vill Terms and Conditions for rnerely implements part of the existir's result of decommissionmg of senels, or Lmergency Access Disposal statutc/y framework, so the rule itself as a result of any research.
LLW grsed emergenc> eccess does not mfrmge on the rights of the deselopment testmg gr production of dispasul pavar.t to this rule is sat ect States any atomic weapons NRC does not 3
to the general requirements for LLW C6rscctwn cf M W E!p Mefor oped t pant emergency accen t any ispsal as establahed m the Act as En rgncy Access w ell as those rquirements which
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H' By far the most common concern
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espressed by commentors was that The NRC has no intentions of grantmg 6CC N e,
emerFency access to LLW which are emergency access 6 hall be processed, emergency access would be used to tnehpble for LLW disposal under treated and d.sposed of m a manner go,ce operating non Federal or regional section Xa)(1) of the Act Hown er the cr tent with an> utN r LL% w Lich is RW daposal facibues to accept LLW Commuunon did not state its intenhons e.
>!c for dwoul ut operatmp non-they are either clearly not responsible in the propused rule The Commis6 tun ta ud or reaun I LL\\\\ disposal for under the Act. or have specibcahy anumed that it would be clear that the im Whes under the Att 'Irie disposal of chosen to exclude from their facihty.
Fearteen of the commentors in almost hmitahons esto%shed m the Act for wwe % grant of emergency access h!d not preclude the implementation half of the comments expressed concern routme LLW dsposal would also apply IdN **I '
- f **
- U" f
of any speufic condihons, regulations, that emergency access would be granted re4nremcnts fets.yurcharges or la ses to wastes that were not typically to be
["gh"c3 "
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considered chg;ble for disposal at non"
- rt eIn d h the capowl f acihts tLt Mard or reponal LLW disposal understandmg and nint regardmg the may be m effect at the tirne of the game, specir,cahy, the commenters u mmw en's de
- ernunatmn to grant stated that Federal wastes. particubstly t na w ns ) amss How n er, w b je those per.erated by DOE and DOD. or
' N " U * * * * ' "#
pcm r4 tars w hase LLW is granted wastes that are classified as greater-
- N N"'
'I E"'
- m. Pnc> acuss are subiect to the E'
then Class-C should not be grunted at % req'abons in sper ud In s and surcharges specified m emergency access Many of the pmusi n s ates the.R f ar emergency access cisposal.
s art apply only ta the LLW s ' hich commentors indicated that States and
'ho sho ad not mherwse be sutyect to Cempacts are not designing their ates Line dnposal responsibilny e
fres or requemena that are not facihnes to proside safe disposal for
' D"""I I " '
I n.o mig thmed er unpesed :or these typt s of LLWs. Most of the rune LLW da;Usal-commentc rs w ho expressed concern this clarthcation to the fm.1 rule shoald IL Analy sis of Public Comments about which wastes would be granted
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8*
emergency access were concerned that The Comm:ssion received twenty-one l:tl comment letters for the proposed LLWs determmed to be inehgible for
- * '@CY " # C ' d d h " * * *
- II rule. Ten (to) of the comment letters routme disposal under the Act, could as the Cornmission a miended came from concerned cinzens six (6) gam access to disposal at State or apphcanon of the fmal ruk from the gmernments of potent 61)y reg.onal facihties under the emergency Recprocol Access access pronsson.
affetted States two (21 from low. level Throughout the development of Part Seseral f the commentors pomted out waste compacts, two (2) from the 02, the NRC assumed that its mandate that the proposed rule omitted any mdustry and one (1) frorn a nuclear ency access only to reference t. or discussion of, sechon was to grant emerg'herwise be eligible mformat on service. A detaded anal) sis LLW that would ot 6(I) of the Act, which addresses of each of the comments was prepared for routme disposal at State or regional reciprocal access. Section 6(f) provides und used to revise the proposed rule.
LLW disposal facihties accordmg to the that the Regional Compact or State The major comments are discussed here. terms and conditions set out in the Act.
receiung the emergency access waste is Copies of the comment letters and the More specifically, the NRC beheves that enutled to reciprocal access at any detaued anal) sis of comments are only those LLWs designated by Section subsequent facihty that serves the available for pubhc inspection and 3(a)(1) of the Act to be the disposal Compact region or State in which the copymg for a fee at the NRC Pubhc re*ponsibihty of the States could be emergency access waste was generated.
Document Roem. 21:0 L btreet NW.
elig:ble for a grant of emergency access it further provides that the Regional Washmston. DC 20555.
disposal.
Compact or State that receives the in general commentora expressed Under Subsection 3(a)(1)( A), the emergency access waste shall designate, support for NRC's issuance of a rule for States are mandated to provide disposal for reciprocal access. "an equal volume its emergency access decisions and for commercially generated LLW of Low-level radioactive waste having indicated changes that would improve it classified as A. B and C. They are not similar characteristics to that provided from their perspectis e. Only one required to provide disposal for greater.
emergency access."
commentor, representing a lobbying than. Class C wastes. Thus, the NRC Most of the States and Regicnal group. expressed opposition to the would expect to deny any request for Compact Commissions who submitted issuance of the rule.That commentor emergency access received for greater.
comrnents on the proposed Part 62 indicated that the rule should be than Class.C waste.The same is true for indicated that reciprocal access should withdrawn because grantmg emergency the Federally generated LLW which is be addressed in the final rule. Most of access would infringe on the States' excluded from State disposal the commentors who raised reciprocal right to manage their LLW.The Act responsibility under section 3(a)(1)(B).
access concerns beheved the NRC establ:shed the statutory framework for Under that subsection the States are should broker rec:procal access the management of LLW inclad.ng the assigned the responsibility for disposing arrangements to ensae that reciprocal allocanon of management responsibthty of "LLW generated by the Federal access will be asadable to a State or between the Federal government and government except that which 's owned Compact whose LLW disposal facihty 6 the States The emergency access rule or generated by DOE. by the Ni vy as a designated to receive emergency access March 31,1989
e PART 62 STATEMENTS OF CONSIDERATION
)
waste Several of them emphasard that 6 is to grant requests for ernergency would be considered fmal The the troprocal access provisionti the access m order to protect the pubhc resolutwn of the issue raised by these Act is a sigmficant one that cannot be ht alth and safety and the common comments is fundamental to the ignored m the NRC process of granimg delt nse and security from a serious and successful implementation of i
t mergency access and designatmg a immediate threat. lf the NRC were to Congressiona! intent for the emergency disposs! facihty. They oated that require a formal promise of reciprocal access provmon of the Act reciprocal access is of particular access as a necessary condition for The basis for these comments n the tuncern because a receivmg Regional cormdenng a request for emergency language in section 6(g) of the Act it Compact or Stat > has urtually no access. under certain circumstances.
states that "uny grant of access under inerage or role to plap m the emergency acuans necessary to protect the pubhc this Section shall be submitted to the
[
access process and a Fuarantee of bMih and safety could be delayed or Compact Commissmn for the region in reciprocal access would make the compromised Thus, the NRC continues situat on more acceptable They to Lehese that an enforcement role which the designated disposal facihty is located for such approval as may be 1
mdicated reciprocity is an integral part regardmg reciprocal act ess is required under the terms ofits of section e and should be part of the mappropriate for the NRC. The j
Compact " The commentors tule Commissmn also bebeus that any rule mterpretatmn of this provision is that 1
i One commentor Indicated that even if regardmg reciprocal access, even of a i
the NRC did not wish to be involved in bmkerir g nature, could be m cor. flat Congress intended for the Compact brok ermg the arrangements. it "must with the Commission's basic rnandate to Comnussmn of the designuted site to have the OnM say regardmg the ensure that the right to reciprocal access nWe emngency access deusmns The acceptant e of emergency acce ss wastes is recognued and its imphcotions are MC mWam h mayg M lbey believe Congress intended that a considered." The commentor mdtcated f*C'procal access in response to grants receivmg Compact Commission could j
that a formal reciprocal access of emergency access is the responsibdity acknowledgement should be extracted of the States and Compacts intohed reject the NRC) cmargency access from the Compact Region or State m The NRC beheves that the promise of determmahon--essenhally that which the emergency m. cess waste was reuprocal access desired by the Congress mtended the compacts to hose the power to seto the NRC's decision generated before any do ternunution for c mment rs cmW be initiated dermg The commentors wanted the NRC to grantmg emergency access is made.
the 15 da) penod requi:ed by the Act
'"d"' 5'CI' n 6(g) for the receiung m k ru ledge this interpretation of They mdicated that nuch an y
acknowledgement should be required by Compact Commission e approsal of the secuan 6tg) by mcorporatmg a s eto/
approsal prousion in the hnal rule-the NRC as part of the contents of a NRC a LLW disposal facihty request for emerFency access (i tE12}
designation.
Whde it.e commentors were correct m and should include some indication of As noted abose, section 6(Q enntle" noimp that the proposed rule did not when the reciprocal access would be any Compact or State that proudes include a speaf c mecharusm for prouded The acknowledgement could emergency access to a disposal facihty implementmg the section Ng) pronson than be included as part of the 10222 withm its borders to reciprocal access to of the Amendments Act, the NRC's notification provided to the receivmg am subsmen4 opnetmg disposal posinon on this issue was addressed m state and. if appropnate, the Compact faahiy that serses the State or compact Sectem 111. Legislauve lhstory of the Supplementary Information portion of Commisston ?
regi n in which the LLW granted,
the proposed rule und is reiterated m the The NRC recognues that the
- "E""'Y"#'"'*"*8""""'"'
same secuun of the fmal commitment to reciprocul access is an Section 6(g) of the Act requires the m
or St pr s
integral part of the emergency access process. particularly for the States with emergency access would take achan to NRC to noufy the Compact Comnussion the operatmg LLW daposal facihties enforce this statutory right if the State or f r de regen m which the d4sposal which wdl be designated by NRC t Compact m which the emergency access facihty is located of any NRC grant of l
receiye emergency access waste. Staff waste was generated does not accept en auess "for such approval as may be considered reciprocal access durmg the equal solume oflow level radioactae required under the terms of the development of the proposed rule At w aste havmg similar charactenstics at Compact " However. section 6(g) also some future date.
mqws M de Mpd Ned that time. the NRC made a decis on not "shau act to approve emergency access to address reaprocal access as part of Compact Approval of Crvnts c/
not later than u days after reteiving the rule on emergency access. As NRC Dr eyexy Access notihration from the NRC." NRC staff read sectmn 6(O arrangmg for Three of the commentors representmg beheves the purpose of this provmon is reaprocal access is an obhganon States or Cornpact Commissmns to 11) ensure that the Compact between States / Compacts umelated to mdvated that the NRC had been remiss Commission is aware of the NRC's grant the Commission's responsihihty to m not includmg a provision in the of emergency access and the terms of protect pubbc health and safety and the common defense and security and thu6 proposed rule which would require the the grant. (2) allow the Compact NRC to seek approval for its decision to Commission to implement any is oatside the scope of NRC's grant emergency access from the administratae procedures necessary to reponsibthty to implement secuon 6 Thus. Staff beheved it would be Compact Commission of the region in carry out the grunt of access and (31 which the designated site is located The ensure that the hmitations on emergency j
inappropriate for the NRC to assume the commentors also wanted the rule to access set forth m section 6(h) of the Act role of enforcing reaprocal access state that "nc grant of emergency access have not been exceeded i
arrangements under this Part shall be effective prior to Contrary to what several of the The NRC reconsidered its position on 15 days from receipt of a request for commentors beheve. the NRC beheves recipracal access in hght of the approval from the Commission." in that daapprovalis not reahy an option l
comments recehed on the propowd order to estabbsh that Compact for the Regional Compact Commission rule. but made no changes to the Imal Commission approval would be m whith the designated emergency l
rule The NRC's mandate under section necessary before the NRC's decision access disposal fauhty would be 62-S C-9 March 31,1989
PART 62 STATEMENTS OF CONSIDERATION located This position is dern ed from Applacable Terms and Condsons for NRC will consider before designatmg a the legis!stive history for both section 6 Emergexy Access sae, the Commission beheves 162.2t) as of the Act and the Omnibus 1* Level RadioactWe Waste Interstate Compact A number of the commentors H appeared in the proposed rule Act which was passed by Congrus as expressed conce n that 1.LW granted adequately addresses the NRC a part of the Act. It is clear from the emergency a: cess lo disposal by the respormbihty to designate a site which legislatne history that the basic purpose NRC should be required to meet any does not preclude "the implementation of the section 6 emergncy acces*
conditmns of the site designated. as we!! of any specific regulations, and prousion is to ensure that llW disposal as any fees. or taxes prescribed by that requirements at the designated disposal sites whath base denied disposal access facihty. Other commentors stated that facihties '
to certain States under provioiuns of the 11Ws granted emergency access RcFarding fees, taxes and other Act wal be made asailable to receive disposal should not have to pay any conditions that several commentors LLW in situations posmg a serious and special fees. beyond those specifically beheved the NRC should consider in immediate threat to the pubhc health mandated by the Act in both cases the designating a site the NRC beheves that and safety. A Compact Comnusuon seto commentors manted assurances Congress intended for Fenerators who of the NRC e decision would frustrate mcorporated mto the rule that m making are granted emergency access to pay all the purpose of the emergency access emerFency a: cess site designation the normal 11W disposal fees as well as prousion and would be generaUy determmations. the NRC would protect the adJasonal fees or surcharges contrary to the legislatiu fran ework both the heahh and asfety interests and specihcally appbcable to emergency estabbshed m the Act As emphasized in the f nancialinterests of either the access waste and estabbshed under the House Committee on Intenor and disposel f acihty designated to receive section 5 of the Act floweser, the Insular Affairs Report on the Act:
the 11W. or the person requesting Commission does not agree that such ratif cation of a Compact should t>e emergency eccess In addition, they information can or should be used by w anted assurances included in the rule the NRC m makmg its site designation conditmned on the Compact's actmg in accord with the prousions of the Act. If that the NRC would consider the fees.
decision.
the Compact refuses to proude. under tases. etc. m designatmg a site to The Commission recognizes the its own authorities. emerpnc) access recene any waste granted emergency importance of conditions to ensure the under section 6. Congressional implernentation of emergency access access ratification of that Compact would be The NRC's response to these concerns decisions once they are made by the null and void. (RR Rep No 314.99th is simple, and is much hke the earher Commissmn. In response to the Cong,1st Ses.. pt.1. at 2997 (1935) )
discussion about the response to comments the NRC added a new comments concermng which westes are Section "Vll!" to the Supplementury While disa, prowl may not be an ehgible for emergency access As Information portion of the fmal rule opunn under the Act.cleady the Act preiusly stated. the Commission t tied. " Terms and Condaions for miendi d the recenmg Compact beheves that Congress intended Emergency Access Disposal."It sets out Commissinr to be fully mformed regardmg t' e emergney access decmon emergency access only to be granted for the responsibibues regardmg the waste which would routinely quahfy for disposaion of emergency access for both rnade by tt e NRC, The Commission LLW disposal eder the terms of the the generator of the LLW granted benem tt e Nottitcation procedures Low. Level Racioactive Waste pohcy emergency access and the operstmg ur. der i C 22 of the proposed rule proGded t,e Compact Commisuon of Amendments Act o!1965 (the Act), To disposal site or sites which base been the Commission. it is quite clear from desgna!cd to receive the w aste.The the dewn ite i dnposal facthiy wah section tghi of the Act that Congress new section realhrms the NRC's mformata n cc astent wah the intended that the LLW granted understanding of ConFressionalintent S p e r ifn.a t m o in the Att Section C22 of die proposed rule prouded that the emerpncy access would meet all of the that whates er condaions or terms NRC wdl notify the Compact general reqmrements and regulations of normally apply to LLW disposal apply Commission of the State m which the the d:sposal facthty designated to for emergency access carept where receive the wastes by the NRC. Section specifically stated otherwise m the Act.
designated disposal facthty is located 6!h) states that "No State shall be that emerwency access is required it required to provide ernergency access or Cond<hons of Terrmnohon further proudes that 'the notibcations must set fmb the reawns that reciprocal access to any repon41 Four of the commentors suggested the dapowl facihty withm its borders for addition of a new section or subsection emervere ct ns was granted and low.inel rad oernw waste not meetmg to the rule to address the condiuons spec a J13 Jesmbe the low lesel criteria estabh3hed by the hcense or under which emergency access could be radinacm e wc te as to source physmal hcense agreement of sush termmuted The Commission agrees that and radmlu,pcal characteristws, and the faciht y, * * *.
terms and condaions should be m.nimum w1ua4e and duratmn (not to To ensure that the designated site is estobbshed in the final rule for cueed 180 day s) necessary to alleuate suitably matched to the LLW granted terrnmation of grants of emergency the enmediate and sonous this at to the ernemency access. the NRC included a access. The NhC has added a new pubbt health and safety or the common prowan m the proposed rule which Subpart D to the fmal rule which defen*c and seturoy.
stated that a LLW disposal site udl be mcorporates some of the suggsted 1:i repunse to this comment, the NRC cxcluded frain consaieranon to recene condaions for terminativa as has made a change to the final ruli. hcw ernergi ncy access waste if the waste ret ommended by the commentors 't he language has been added to i 6L22 does not meet the critena estabhshed by Sabpart is entaled. " Termination of wht_h states that the Commissmn wdl the hcense or hcensee agreement for the Emergency Accest" This new Subpart make nuhfication of the fmal facihty i 62.26(b)lt) The htense or D is discussed under Sechon VI IDJ of determmation in writing to the bcensee agreements incorporate the the Supplementary informanon for this appropriate Compact Commissien "for regulations and requirements that affect rule It estabbshes that the Commissmn such appros al as is specified as each particular facihty. Taken with the may,e minate a grant of emerFency nete3sary m Secuan cig) uf the AttJ other uduriration in i 62 26. which the access if an apphcant has faded to' March 31,1989 62-SC-10
i PART 62 STATEMENTS OF CONSIDERATION comply with the conditions estabbshed determmation under section 6 of the Act Washington, DC 20555 Smgle copies of by the NRC pursuant to this Part. !t ab that craergency access to an operstmg the analysis may be obtained from Janet estabbshes that the Commission may non. Federal 11W disposal faciht) is Lambert. Nuclear Regulatory termmate a grant of emergency access if necessary to avert a senous and Commission, NLS-2m Washington, DC it determines that emergency access is immediate threat to the pubhc health 20555 telephone (301) 492-3857.
no longer needed, and safety or the common defense and XIll. Regulatory Flesibiht) Certification s m rity,or the most part, the fir.at rule Response io S;>ccific Request fx is an adm.mstratne action which serses NRC is usmg this final rule to C##*##
to codify the critena and procedures in implement the statutory requirements in the proposed rule, the NRC the Act. The adoption of such for granting emergency access to non-specifically requested comments on implemennng cnteria and procedures by Federal or reponal LLW dispoa al certain parts or assumptions rnade by promulgation of a final rule dues not facihties under section 6 of the Act the NRC Under Section Vill of the hase an environmen%! effect.
Based upon the mformation available proposed rule, the NRC exp'essed an Therefore. the Commission has and in accordance with the Regulatory mterest in receiving comments on-determmed unde r the Nation'1 Flexibility Act. 5 U S C= 605(b). the (1) What scenarios are envisioned Enuronmental Pohcy Act o!19u9, as Commission certif'es that this rule will where emergency access would be amended and the Commission's not have a significant economic impact required?
regulations in Subpart A of to CFR Pari upon a substantial number of small (2) What are the potential problems 51, that this rule is not a major Federal entities.
with th-NRC's approach to determming action si qificantly affectmg the quahty The rute has the potential to affect F
an immediate t.nd serious threat to the of the human environment and.
any generator of LLW as well as any pubhc health and safety?
therefore, an environmental impact eustmg 11W disposal f acihty. None of (3) What are the potential problems statement is not required the LLW disposal facihties would be with the arrangement proposed for The enuronrnental assessment considered to be a small entity. The making the determination of serious and forming the basis for this determination generators of LLW are nuclear power immediate threat to the common defense is contained in the regulatory analysis plants medical and academic f acihties.
and secuntyt prepared for this regulation. The industnal hcensees, research and (4) What are the potential difficulties asailabihty of the regulatory analysis is des elopment facihties' anufacturers. f ad with the proposed approach for noted in Section Xill of this rule.
radiopharmaceutical ra designating the receiving site 7 and (5) What should the NRC do if no site XI. Paperwork Reduction Act Statement fabncation f acihties, and gos ernment is found to be suitable for waste The Imal rule adds infor mation licensees Of these categories, all but the requiring emergency access?
collection requirements that are subject p wer plants, fuel fabncation facihties.
Two of the commentors specifically to the Paperwork Reduction Act of1980 and g vernment bcensees could addressed this request for comments.
(44 U.S.C. %01 et seg ). These potentially include small entities.
offering partial responses to some of the requirements were approved by the Although these categories may questions. One of the commentors Office of Management and Budget contain a " substantial number of small offered possible scenarios for Approval Number 3150-0143.
entities," the Commission does not emergency access and both of the Public reportmg burden for this believe that there will be a significant commentors suggested that a Federal collection of information is estimated to economic impact to these generators facihty should be developed to as erage 680 hours0.00787 days <br />0.189 hours <br />0.00112 weeks <br />2.5874e-4 months <br /> per response, because the Commission does not accommodate emergency access wastes includmg the time for reviewmg anticipate that many generators wdl be The comments did not reveal any new instructions. searchmg existing data affected by the rule. In order for the perspectives for the NRC to consider so sources. gathenng and maintaining the requirements of the rule to be imposed the fmal rule was not affected by the data needed. and completing and on a generator, the generator must comments received.
reviewing the collection of information.
imtiate the action by requesting a grant in the proposed rule. the NRC Send comments regardmg this burden of emergency access from NRC. This specifically requested comments on the estimate or any other aspect of this would occur only because the Benerator mittal regulatory flexibihty analysis collection of mformation. meludmg has been demed access to LLW from small busmesses, small suggestions for reducmg this burden, to disposal. The impact of the orgamzations, and smalliurisdictions m the Records and Reports Lnagement recordkeeping reqinrements on any order to determine if the fmal Branch. Division of Information Support affected hcensees should be minimal regulations should be modified such that Services /lRM. Office of AdmimsMatson smce the information that must be less stringent requirements could be and Resources Management. U.S.
provided if a generator requests imposed on small entities while still Nuclear Regulatory Commission.
emergency access would most hkely be adequately protecting the pubhc health Washington. DC 20555. and to the collected and assembled as part of any and safety. None of the comments Paperwork Reduction Project (3150-process to decide a course of action if received on the proposeJ rule addressed 0143). Office of Managerr.ent and necessary access to LLW disposal was the impact of the regulation on small Budget. Washington. DC 20503.
not going to be available, entities or the adequacy of the NRC's The Commission is required by statute regulatory flexibihty analysis. As a Regulatory Analysis to make emergency access result. It was not necessary to change The Commission has prepared a determinations. Smce a grant of the final rule to accommodate the regulatory analy.ls on this final emergency access is intended to correct special needs of small business.
regulation The analysis e_xamines the the problems LLW generators may costs and benefits of the alternatives encounter because oflack of access to m aIt c ns ere m
- n. The LLW disposal, the provision of i nme a allabihty analysis is available for inspection.
emergency access will benefit any This rule estabbshes criteria and coppng for a lee, et the NRC Pubhc generator of LLW. includmg smatl procedures for a Commission Document Room. 2120 L Street NW..
entities 62-SC-11 March 31,1989
)
PART 62 STATEMENTS OF CONSIDERATION Estabbshing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large generators. This Part provides guidance to the generator on what information will be required for making requests for emergency access and provides an orderly framewerk for making those requests. Also, the rule will enable generators to better plan to avoid LLW disposal access problems.
thus providing the certainty required for economic growth and development.
l XIV. Backfit Statement The provisions of to CFR 50100 on Backfittmg do not apply to this rulemaking because this regulation is not apphcable to production and utibration facihties hcensed under 10 CFR Part 50.
Ust of Subjects in to CFR Part 62 Administrative practice and procedure. Denial of access, Emergency access to low level waste disposal Low-level radioactive waste. Low-level radioactive waste policy amendments act of 1985. Low. level radioactive waste treatment and disposal. Nuclear materials. Reporting.nd recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of1974.
as amended, and 5 US.C. 553, and the Low. Level Radioactive Weste Policy Amendments Act of 1985, the NRC is adopting a new to CFR Part 62-March 31,1989
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