ML20024J558
| ML20024J558 | |
| Person / Time | |
|---|---|
| Issue date: | 10/14/1994 |
| From: | Lohaus P NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Autry V SOUTH CAROLINA, STATE OF |
| References | |
| NUDOCS 9410200057 | |
| Download: ML20024J558 (2) | |
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WASHINGTON. D.C. 20666-0001 October 14, 1994 Mr. Virgil R. Autry, Director Division of Radioactive Waste Management Bureau of Solid and Hazardous Waste Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201
Dear Mr. Autry:
Enclosed is our October 6, 1994, letter to Mr. R. Lewis Shaw, Deputy Commissioner, Environmental Quality Control, South Carolina Department of Health and Environmental Control, that reviews the South Carolina final proposed revisions of low-level radioactive waste storage and disposal regulations.
Mr. Shaw's incoming July 1,1994, letter is also enclosed for your information.
If you have any questions or require further information, please give me a call at 301/504-2326, or Dr. Steve Salomon at 301/504-2368.
Sincerely, t aJ Gb Paul H. Lohaus, Deputy Director Office of State Programs
Enclosures:
As stated i
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9410200057 941014.
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.00T 14 1994 Mr. Virgil R. Autry, Director Division of Radioactive Waste Management Bureau of Solid and Hazardous Waste i
Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201
Dear Mr. Autry:
Enclosed is our October 6,1994, letter to Mr. R. Lewis Shaw,. Deputy Commissioner, Environmental Quality Control, South Carolina Department of Health and Environmental Control, that reviews the South Carolina final proposed revisions of low-level radioactive waste storage and disposal regulations.
Mr. Shaw's incoming July 1,1994, letter is also enclosed for your information.
If you have any questions or require further information, please give me a call at 301/504-2326, or Dr. Steve Salomon at 301/504-2368.
Sincerely, I r
/J Paul H. Lohaus, Deputy Director Office of State Programs
Enclosures:
As stated Distribution:
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October 6, 1994 Mr. R. Lewis Shaw, P L Deputy Commissioner Environmental Quality Control South Carolina Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201
Dear Mr. Shaw:
This responds to your July 1, 1994 letter to Paul Lohaus of my staff regarding licensing of low-level radioactive waste (LLW) storage facilities in South Carolina (SC) and the May 10, 1994, request to Richard Woodruff, Regional State Agreements Officer, Regien II, by Virgil Autry of your staff to review the proposed final revisions of the Department of Health and Environmental Control (DHEC) regulations for LLW storage and disposal.
We share your concern about the safe storage of LLW while new disposal capacity is being developed and the need for effective regulation and oversight of licensees in this area.
NRC staff comments on the SC regulations for storage and disposal of LLW are provided in the Enclosure.
We used as review criteria Federal laws and NRC regulations and policies. Office of State Programs' Internal Procedure B.7,
" Criteria for Compatibility Determinations," was the primary basis for the review.
These comments also address certain provisions in the regulations concerning the authority of SC to regulate NRC licensees, which is discussed in more detail below. Our comments on your letter of July 1,1994 follow.
In your letter, you asked us to review our current laws, regulations and policies to determine whether Agreement States have the authority to issue specific radioactive materials licenses at LLW storage facilities under NRC's regulatory jurisdiction, and to conduct inspections for compliance wi' h waste processing and acceptance standards at these facilities.
You noted wat the low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) did not convey any additional authority for the States to regulate and inspect NRC licensed facilities. However, your letter asserts that the LLRWPAA requires each party State (as ratified in the Southeast Compact) to cstablish the capability to regulate and license any facility used for the treatment, storage, or disposal of LLW.
4 We interpret the term " specific radioactive materials license" to mean a radiological health and safety license issued under SC regulations compatible with NRC's 10 CFR Parts 30, 40, and 70 to regulate and control the use of byproduct, source, and special nuclear materials respectively only for the purposes of protecting the public health and safety and the environment against the hazards of radiation. We would not interpret such licenses to be applicable to NRC licenses issued for facilities located in SC.
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Mr. Shaw OCT - 6 19c4 We are aware that the Southeast Compact legislation empowers the party States to manage LLW in their jurisdiction. However, the NRC believes that these responsibilities are, limited by the LLRWPAA. Section 4 (b)(3) of the Act notes that:
Nothing contained in this Act or any compact may be construed to confer any new authority on any compact commission or State--
(B) to regulate health, safety or environmental hazards from source material, byproduct material or special nuclear material; (C) to inspect the facilities of licensees of the Nuclear Regulatory Commission;....
Pursuant to the LLRWPAA Section 4(b)(4) Federal Authority:
Except as expressly provided in this Act, nothing contained in this Act or any compact may be construed to limit the applicability of any Federal law or to diminish or otherwise impair the jurisdiction of any Federal agency, or to alter, amend, or otherwise affect any Yederal law governing the judicial review of any action taken pursuant to any compact.
Furthermore, Article VI of the Southeast Compact legislation, "Other Laws and Regulations," has a preemption clause.
This clause (Article VI.A) states that:
Nothing in this compact shall be construed to:
(1)
Abrogate or limit the applicability of any act of Congress or diminish or otherwise impair the jurisdiction of any federal agency expressly conferred thereon by the Congress.
(2)
Abrogate or limit the regulatory responsibility and authority of the U.S. Nuclear Regulatory Commission....
Thus, NRCs statutory authority to license nuclear power plants and non-U.S.
Department of Energy Federal facilities in Agreement States preempts any State / Compact legislation regarding the radiological health and safety aspects of treatment or storage at those facilities.
NRC regulations in 10 CFR j
150.15(a) further amplify this authority. Under this provision, Agreement States lack the authority to license the handling and storage of radioactive waste at a production or utilization facility site.
States and Compacts therefore do not derive any additional authority to regulate the treatment or storage of LLW at a nuclear power reactor site. NRC's guidance in Generic letter 85-14 " Commercial Storage at Power Reactor Sites of Low-Level Radioactive Waste Not Generated by the Utility," defines " site".as the exclusion area, a term defined in our regulations in 10 CFR 100.3(a).
The specific boundaries of the exclusion area for a particular plant are identified in the Final Safety Analysis Report for each plant.
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Mr. Shaw OCT - 6 159 t-With respect to your interest in conducting inspections at NRC licensed facilities for compliance with applicable waste processing and acceptance standards, NRC has an existing procedure that would allow for such inspections.
These ' nspections would supplement NRC's own inspections against i
specific sections of NRC's requirements.
This could be effected by the NRC and the State of South Carolina entering into a Memorandum of Understanding-(MOU) as allowed under Sections 161 f. and 2741. of the Atomic Energy Act.
Similar agreements that are beneficial to both South Carolina and NRC have been consummated in the past, one for water quality (43 FR 19485 5/5/78) and the other for transportation regulation at the Barnwell LLW disposal facility (47 FR 23836 6/1/82). A uniform basis for NRC/ State cooperation as it relates to the regulatory oversight of commercial nuclear power plants and other nuclear production or utilization facilities was published in a policy statement on February 25, 1992 (57 FR 6462).
We trust this responds to your concerns and questions.
If you have any questions, please call Paul Lohaus at (301) 504-2310.
Sincerely, e
ala./ L bue y:d
.ichard L. Bangart, Director
Enclosure:
Office of State Programs As stated A
Enclosure NRC Staff Comments on South Carolina Low-level Radioactive Waste Storage and Disposal Regulations I.
Regulations Reviewed:
South Carolina Department of Health and Environmental Control final proposed revisions to Part VII, " Licensing Requirements for Land Disposal of Radioactive Waste" and Part X, " Licensing Requirements for Interim Storage of Radioactive Waste." (Copies furnished were undated.)
-11.
NRC Staff Review Criteria:
1 Applicable laws, especially the Atomic Energy Act of 1954, the Low-level Radioactive Waste Policy Amendments Act of 1985, including Title II, Section 223, " Southeast Interstate low-level Radioactive Waste 4
Management Compact;" Chapter 10 of the Code of Federal Regulations; and NRC Office of State Programs Internal Procedure B.7, " Criteria for t
Compatibility Determinations."
111.
Staff Review Comments:
Part VII, Disposal I
1.
RHA 7.21, " Stability of the Disposal Site After Closure," which parallels our 61.44 performance objective for stability, has the 1
following sentence added to the language contained in Part 61:
" Engineered barriers shall be used to ensure that the stability i
requirements are met." Although engineered barriers may be used to improve facility performance, engineered enhancements to the t
site cannot make up for any deficiency that would prevent the site from meeting the suitability requirements of Section 61.50.
- Thus, the current language, which implies that only engineered barriers may be used to meet the performance objective, needs to be
- modified, i
Part X, Storage 1.
Section 10.1.4 of Part X states, in part, that "The regulations in this part do not apply to licensees of the Department or the U.S.
Nuclear Regy]at r y Commission who will store less than seventy five (75) cubic feet of low-level radioactive waste with a total aci.ivity of ten (10) curies or less and where radiation levels on j
any single package do not exceed five (5) milli em (0.05 mSv) per hour at thirty (30) centimeters..."(emphasis added). This part of the regulations would appear to extend licensing authority of the DHEC to NRC licensees in SC who exceed the volume and activity criteria stated.
For reasons identified in the cover letter to this review, this provision should be revised to delete any SC licensing of NRC licensees.
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1 2.
RHA 10.1.5 states that " Facilities licensed by the U.S. Nuclear Regulatory Commission under the authority in 10 CFR 150.15 are exempt from this part unless otherwise authorized by_the U.S.
Nuclear Regulatory Commission or by state or federal statute
[ emphasis added)." Given the DHEC position in its July 1, 1994 letter regarding authority granted to the state by the LLRWPAA, we assume that DHEC would interpret RHA 10.1.5 to allow SC to license nuclear power plant storage facilities in the exclusion area for the purposes of radiological health and safety.
For the reasons stated in our cover letter, SC does not have authority to conduct such licensing activities.
In addition, no State statute can provide the State with authority otherwise prohibited by Federal law. Accordingly, the phrase should be modified to address this Concern.
3.
The applicability of the proposed final Part X is not entirely clear.
Sections 10.1.1 and 10.1.4 would seem to indicate that any licensee who wishes to store waste--their own or waste received from others--would need to apply for an amendment or license, unless the volume or activity levels are below the limits specified in Section 10.1.4.
1 However, in Secticn 10.3.1 and elsewhere in the regulations, is contained the phrase "... receive, possess an.d [ emphasis added]
store..." waste.
By inclusion of the word "and", the applicability of the regulations appears to be to those licensees who will be receiving waste from others, not licensees storing their own waste. This apparent discrepancy should be clarified.
4.
The technical requirements contained in the proposed final regulations do not have a counterpart in NRC regulations, since we do not have specific regulations dealing solely with storage of LLW. To the extent that these regulations affect only licensees within SC and do not have an effect on interstate commerce, the staff sees no significant problems with compatibility.
A A
South Carolina as E Mant t
.D H E C Soard:
Richard E Jatbour. DOS, Chairman Wilham E Applegate. m.
Robert J Striphng. Jr.. Vice Chairman John H Burnse fg* ' '
Depa'tment of Heath and Environmentai Control p
2600 Bull Street. Columbna. SC 29201 Promoting Hearth, Protectong the Environment July 1,1994 Mr. Paul us, Deputy Director Office of State Programs U.S. Nuclear Regulatory Commission Mail Stop 3-D-23 Washington, D.C. 20555
Dear Mr. Lohaus:
This is in reference to your recent meeting with Mr. Virgil R. Autry of my staff, and your discussion with him regarding Agreement State authority to license and inspect interim low-level radioactive waste storage facilities at licensees under the regulatory jurisdiction of the U.S.
Nuclear Regulatory Commission (NRC).
As you are aware, the State of South Carolina has developed regulations for the interim storage of low-level radioactive waste as a contingency in the event there is no further access to a disposal site after 1995 for our generators. These regulations have been approved by the South Carolina Board of Health and Environmental Control for submission to the General Assembly for their final approval and codification.
Based on this, I request the NRC to review their current laws, regulations, and policies, and determine whether the Agreement States have the authority to issue specific radioactive material licenses at these facilities, and also conduct inspections for compliance with applicable waste processing and acceptance standards. It is my understanding that NRC does not intend to require a license at locations under their jurisdiction unlesc waste is stored cr processed for others.
Although the federal Low-Level Radit, active Waste Po: icy Amendments Act of 1985 (P.L.99-240) did not convey any additional authority for the states to regulate and inspect NRC licensed facilities, it did, none-the-less, require each pany state (as ratified in the Southeast Compact) to establish the capability to regulate and license any facility used for the treatment, storage or disposal of low-level radioactive waste.
Furthermore, each party state must establish the capability to enforce any applicable federal or state laws for the packaging and transportation of waste. The Act also conveyed considerable responsibilities to the states for the overall management and availability of storage and disposal capacity for low-level radioactive waste generated within their borders. It seems apparent that the states have been mandated a greater interest for the regulatory responsibility regarding the interim storage of these wastes.
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It is not the intent of this agency to require licensing by both the NRC and the state for waste stored in facilities within the exclusion area (Price-Anderson) of the nuclear plants currently provided by 10 CFR 150.15, unless it is determined necessary for public health and environmental protection. However, the states would need authorized access to these areas for a
inspection and compliance purposes to assure proper processing and packaging for future-
' disposal. In circumstances where an NRC licensee chooses to construct a storage building,' or
- store waste outside the exclusion area, it is my opinion this would fall under the jurisdiction of the Agreement States, and a specific license for these activities would be required. This is consistent with the current NRC policy authorizing Agreement States to approve the on-site disposal of waste under 10 CFR 20.302.
With the imminent closing of the Barnwell site and the potential delay of opening another site, the interim' storage of low-level waste will become an extremely important item to all states, This is especially significant since the NRC has withdrawn its proposed lulemaking in this area and its regulatory guidance is now outdated. I would, therefore, appreciate NRC's timely response to these issues in order to allow us sufficient time for planning and initiating any.
required memorandums of understanding.
Thank you for your consideration.
Very truly yours, g
,f C R. Lewis Shaw, P.E.
Deputy Commissioner, Environmental Quality Contro!
Richard Woodruff, NRC Region 11 cc:
Max Batavia, Chief, Bureau of Radiological Health Carl Roberts, Governor's Office
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