ML20034D413
| ML20034D413 | |
| Person / Time | |
|---|---|
| Issue date: | 04/17/1992 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20034D414 | List: |
| References | |
| FOIA-92-586 SECY-92-142, NUDOCS 9204210310 | |
| Download: ML20034D413 (17) | |
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s POLICY ISSUE
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April 17,1992 (InformatiOn)
I For:
The Comissioners l
i From:
James M. Taylor Executive Director for Operations
Subject:
TAKE-TITLE PROVISION OF THE LOW-LEVEL RADIDACTIVE WASTE i
POLICY AMENDMENTS ACT OF 1985
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Purpose:
To inform the Commissioners of the potential consequences, impacts en the public health and safety, and advantages and t
disadvantages of possible U.S. Supreme Court (hereafter, j
Supreme Court) decisions on the severability of the take-title provision of the Low-Level Radioactive Waste Policy Amendments i
l Act of 1985 (LLRWPAA).
I Sumary:
The Supreme Court is reviewing the decision of the U.S. Court of Appeals for the Second Circuit (hereafter, Court t
of Appeals) in New York v. United States. The State of New York asserts that the LLRWPAA, especially the take-title i
provision, exceeds the limits imposed on the Federal l
Goverr. ment under the Tenth Amendment of the Constitution.
l The United States argues to the contrary. Should the United l
States not prevail, there are three possible adverse i
outcomes, either directly from the case itself, or from l
subsequent cases should the Supreme Court not address severability in its first decision. The Supreme Court may
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find only the take-title provision of the LLRWPAA' l
unconstitutional, allowing the remainder of the LLRWPAA to stand (severed outcome). The Supreme Court may find the entire 1
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Contact:
IN 1 ORKING DAYS FROM THE Robert A. Nelson, HMSS DATE OF -
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i LLRWPAAtobeunconstitutional(notseveredoutcome). The Supreme Court may also find that the take-title provision is constitutional as it applies to compacts, and unconstitutional l
as it applies to unaffiliated States (i.e., those not in a compact). This latter result is referred to as the partially severed outcome.
In analyzing the possible consequences of a l
Supreme Court decision, the staff has examined credible i
low-level radioactive waste (LLW) dis disposed and "least"- disposed cases)posal scenarios ("most"-
for these three possible outcomes as well as the advantages and disadvantages associated with each outcome.
l In all cases, the staff believes that the public health and i
safety can be adequately protected with storage of LLW, but additional resources may be required to be expended by the Nuclear Regulatory Comission,- Agreement States, and their licensees to achieve that result. There may also be a period of disruption while all this is being sorted out.
In any event, the three outcomes can still have greater or lesser 4
health and safety effects. The following analysis recognizes l
l that additional safety beyond the minimum needed for adequate protection is desirable, for example, minimizing occupational j
exposures.
Background:
The LLRWPAA (P.L.99-240) establishes a series of milestones, t
penalties, and incentives to ensure that regional compacts and unaffiliated States make adequate progress toward being able I
to provide for disposal of their LLW. Section5(d)(2)(C)of LLRWPAA provides that if a State or compact cannot provide for j
disposal of its LLW after January 1,1996, generators can i
request the State to take title to, and possession of, the i
generated waste, provided the waste is available for shipment, i
and if the State fails to take possession the State will be l
j liable for danages incurred by the generator as the result of the State's failure to take possession (the "take-title" provision).
l t
The State of New York asserts that the LLRWPAA, especially the j
take-title provision, exceeds the limits imposed on the Federal i
Government under the Tenth Amendment of the Constitution. On l
January 10, 1992, the Supreme Court granted a petition for a writ of certierari agreeing to review the decision of the Court of Appeals in a lawsuit brought by the State of New York i
and the Counties.of Allegany and Cortland against the Federal Government challenging the constitutionality of the LLRWPAA.
The Court of Appeals had previously affirmed the decision of j
the U.S. District Court for the Northern District of New York, i
upholding the constitutionality of the statute. Allegany 'and j
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The Comissioners Cortland Counties assert, along with the State of New York, that the LLRWPAA violates the constitution. The States of Connecticut, Michigan, and Ohio have filed briefs in support of New Yark. Joining Ohio in its brief are Arkansas, Arizona, California, Guam, Illinois, Indiana, Kentucky, Maine, Massachusetts, Nebraska, New Jersey, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin.
Also the Council of State Governnents has filed a brief in support of New York, though the sited States have challenged this filino. ThesitedStates(Nevada,SouthCarolina,and Washington), sited compacts (Northwest, Rocky Mountain, and Southeast), a consortium of LLW generators, American Feceration of Labor and Congress of Industrial Organizations, and U.S. Ecology, Inc., have submitted briefs supporting the Federal Government. Briefs have been filed and oral arguments were heard by the Suprete Court on March 30, 1992, and a decision is expected by July 1,1992.
Discussion:
The staff has been asked to examine the possible consequences of severability and non-severability. The three possible outcomes are severed, not severed, and partially severed. The severed outcore is one in which only the take-title provision of the LLRWPAA is found to be unconstitutional, and the remainder of the LLRWPAA stands. The not severed outcome is one in which the entire LLRWPAA falls. The Supreme Court could also find that the take-title provision is valid as it applies to States in compacts, and unconstitutional as it applies to unaffiliated States. This latter result is referred to as the partially severed outcome. The staff has defined credible "most"- and "least"- disposed cases for three possible outcomes, focusing on the issue of severability of the take-title provision f rom the LLRWPAA. The analysis of these cases and the associated health and safety implications are provided in Enclosure 1.
The analysis addresses the possible effects en LLW disposal capacity for each of the three outcomes. The advantages and disadvantagesofeachoutcome(i.e., severed,notsevered,and partially severed) are discussed in Enclosure 2.
Storage of LLW will have both cost and regulatory impacts.
Many LLW generators may be forced to build and/or modify facilities for such storage. Additional costs will be incurred to operate and maintain these facilities and conduct requisite radiation surveys. Such LLW storage costs could have a signficant impact on some medical generators, with potential adverse effects on biomedical research. NRC and Agreement States will need to address acceptable storage practices through licensing and inspection activities. For example, waste form decomposition, container degradation, and i
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l gas generation are concerns which ray need to be addressed.
Additional costs will be incurred by the generators in preparing requests fur new license amendments and by the NRC and Agreement States in reviewing and responding to these requests.
The analysis shows a wide range of possibilities due to uncertainties associated with compact, State, and Congressional reaction to the three possible outcomes.
The advantages and disadvantages are directly related to these reactions making any conclusions highly subjective. however, the public health and safety can be adequately protected regardless of the outcome.
If long-term storage of LLW is recuired, additional costs will be incurred and the staff and Agreement States will need to conduct a review to determine regulatory actions required to ensure the continued protection of the public health and safety and the environment.
l Coordination:
The Office of the General Counsel participated in the developrent of this paper and believes that the analysis is consistent with legal principles.
/
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,.sM.Tgflor xecutive Director i
for Operations
Enclosures:
- 1. Consequences of Possible U.S. Supreme Court Decisions
- 2. Advantages and Disadvantages of Possible Supreme Court Decisions B
DISTRIBUTION:
Cormnissioners OGC OCAA OIG OCA OPA IH)O y
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CONSEQUENCES OF POSSIBLE U.S. SUPREME COURT DECISIONS ON SEVERABILITY OF THE TAKE-TITLE PROVISION l
I 0F THE LOW-LEVEL RADI0 ACTIVE WASTE POLICY AMENDMENTS ACT OF 1985 In analyzing the possible consequences of a Supreme Court decision, the staff has examined credible LLW disposal scenarios ("most"-disposed and "least"-disposed cases) for the three possible outcomes:
severed, not severed, and partially severed.
The following analysis involves many uncertainties, including schedules for developing sites, the influence of economic forces on States' willingness to i
i accept LLW, the effect of public opposition to new development, and consolidation and contracting by States to reduce the number of new disposal 4
i sites, as well as political and legislative reactions. In considering these uncertainties, the staff's analysis is based on the following general assumptions:
l For those cases or scenarios that consider continued development of LLW l
f disposal capacity, current schedules are assumed to be achieved.
Economic influences on possible compact and State reactions have not been considered, because of their greatly speculative nature. Such influences include the added revenue that could be generated by a sited State if it accepted LLW generated outside the compact or State.
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i For those cases that consider further operation of a compact, it is assumed that the affected compact will not accept waste generated outside s
the compact, with the exception of the Northwest Compact. The contract between the Northwest and Rocky Mountain Compacts is assumed to be signed by both parties.
Pressure from industry, especially the medical and biomedical nuclear 4
material users, to hasten development of new disposal facilities, has not been considered.
The volumes and distribution of LLW by compacts and States remains constant at 1990 levels.
j Since many outcomes are possible, because of the uncertainty associated with projections of compact, State, and Congressional actions, the aforementioned assumptions are presented to baseline the staff's logic, thereby allowing readers to consider other alternatives and assumptions.
Staff Analysis of Outcomes The following staff analysis addresses a "most"- and "least"-disposed case for j
l each outcome:
- A. Severed, B. Not Severed, and C. Partially Severed. The most-disposed case analysis considers two time periods:
(1) July 1,1992 1
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(expected date of Su of LLRWPAA); and (2)preme Court decision) to January (1,1996 (final milestone January 1,1996 to August 1999 the currently scheduled i
opening date of the last LLW disposal facility). The least-disposed case analysis considers a single tire period, July 1,1992, to January 1,1996.
Tables 1 and 2 provide disposal volumes and LLW disposal facility development schedules, respectively, by each compact and State.
1 A.1 Severed Dutcome - Most-Disposed Case There are currently three operational LLW disposal facilities: Beatty, Nevada; Barnwell, South Carolina; and Richland, Washington. The Beatty, Nevada, facility is scheduled to close on December 31, 1992, regardless of other factors.
This analysis assumes that the existing LLW disposal facility in Richland, Washington, remains open throughout the two time periods, serving both the Northwest and Rocky Mountain Compacts, as currently planned.
The Barnwell, South Carolina, facility is assumed to remain open until the new Southeast Compact LLW disposal facility in North Carolina is opened in February 1996. The Barnwell facility is currently scheduled to close on January 1,1993. However, on October 25, 1991, the Southeast Compact Commission passed a resolution requesting the South Carolina legislature and the State's Board of Health and Environmental Control to keep the facility open to the eight members of the compact until North Carolina completes development of the planned replacement facility. The Board of Health and Environmental Control voted, on December 12, 1991, to recommend to the South Carolina General Assembly that the Barnwell facility remain open as a regional facility until 1996. On February 14, 1992, the Southeast Compact Comission passed unanimously a motion comending Governor Campbell, of South Carolina, for advocating that the Barnwell facility remain open past December 31, 1992. The Compact Commission recognized that South Carolina is entitled to receive additional fees and is entitled to assurances that every effort is being made for the siting, construction, and opening of the LLW disposal facility in t
North Carolina. The South Carolina legislature has not taken final action.
Therefore, in this scenario, it is reasonable to assume continued LLW disposal i
capacity will be available for the Southeast Compact throughout the period of analysis. The Northwest and Rocky Mountain Compacts account for 9 percent of the nation's disposed of LLW, and the Southeast Compact accounts for 29 percent.
New LLW disposal facilities serving the Southwest, Central, and Central Midwest Compacts are scheduled to open by January 1,1996. -These compacts i
collectively account for 22 percent of the nation's disposal of LLW. The most-disposed case analysis assumes these facilities, as well as those planned to be operational by 1999, will open as scheduled. No schedule has been established for the Ohio facility serving the Midwest Compact.
However, for the purposes of the most-disposed case, it is assumed that this facility will open by August 1999. '
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These States without disposal plans (District of Columbia, Michigan, New Hampshire, Puerto Rico, and Rhode Island) are assumed to contract for disposal with a sited State by August 1999.
It is further assumed, under the most-disposed case, that incentives remaining after the take-title provision is stricken from the LLRWPAA are sufficient to promote comp)letion of disposal facility development. These incentives include:
(a the cost to generators for storage; (b) the resources (space and personnel) that would need to be devoted to onsite storage at a generator site; (c) the increased costs of services, including biomedical research, as a result of storage; (d) the possible loss of jobs in a State, if companies move to areas that have disposal capacity; and (e) the public safety concerns in a State, if LLW must be stored in increasingly larger quantities at numerous 3
generator sites throughout the State.
In surnary, the most-disposed case under the severed outcome is that 60 percent of the nation's LLW will be disposed of, leaving 40 percent subject to storage by 1996. The percentage of LLW disposed will incrementally increase, under this scenario, to 100 percent by August 1999.
A.2 Severed Outcome - Least-Disposed Case The analysis associated with this outcome assumes that the Richland facility will remain open as planned, the Barnwell facility will close as planned, and that efforts by other compacts to develop LLW disposal facilities will fail, because of the absence of the incentive provided by the take-title provision.
This analysis assumes that the incentives remaining af ter the take-title provision is stricken are insufficient to promote completion of any additional disposal facility.
The least-disposed case for the severed outcome is that nine percent of the nation's LLW (corresponding to that generated by the Northwest and Rocky Mountain Compacts) will be disposed of. The remaining 91 percent will be stored.
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A.3 Severed Outcome - Summary Under the conditions of the most-disposed case, new disposal capacity would gradually be developed and 100 percent capacity would be available by the year 1999. Storage would be widespread in the country, beginning on January 1, 1993, but would gradually disappear as new disposal sites become operational.
In the least-disposed case, States with new disposal plans would make no progress, in part because of the removal of what could be a major incentive for development, the take-title provision. Only 9 percent of the nation's LLW would be disposed and the remaining 91 percent would be stored indefinitely.
B.1 Not Severed Outcome - Most-Disposed Case Under the not severed outcome, the entire LLRWPAA is found unconstitutional.
Therefore the statutory basis for the compacts will cease to exist, including the provision to exclude waste generated outside the compact. The analysis of I
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the most-disposed case for the not severed outcome assumes that all operating i
sites close and all development ceases, because of the inability of the States to exclude waste generated outside their borders; an inmediate crisis develops (similar to that which preceded the Lcw-Level Waste Policy Act of 1980, but in i
this case all sites close completely); Congress begins legislative action in the next session; and Congress directs the Department of Energy (DOE) to provide disposal capacity for coteercially generated LLW. The staff assumed that Congress could take three years to conduct hearings and draft and enact legislation, and that DOE would require an additional four years to establish an operational comercial LLW disposal facility, af ter passage of enabling legislation. Actions required af ter enactment of legislation could include a programatic er.vironmental impact statement, public involvement, negotiation with associated States, site selection, site characterization, environmental assessment, NRC licensing, and construction.
The most-disposed case for the not severed outcome results in no disposal i
capacity until 1999, at which tire disposal capacity will be available for 100 percent of the nation's LLW at DOE's cotmercial LLW facilities.
i A number of other and possibly equally likely Congressional legislative alternatives are available, These include enactment of a "new LLRWPM" minus the take-title provision.
This action could have the effect of reinstating the corpacts that existed before the Supreme Court's finding. Such action could result in a situation similar to the most-disposed case for the severed outcome; however, tire fcr completion of the State and compact disposal I
facilitie; may be extended while Congress acts to pass the "new LLRWPM.*
i B.2 Not Severed Outcome - Least-Disposed Case i
t This case assures that all operating sites close and all development ceases because of the inability of States to exclude waste generated outside their borders. This case also assures that Congress takes no imediate or near-term action. The result of this case is a complete absence of LLW disposal capacity for an indefinite period of tire.
B.3 Not Severed Outcore - Sunnary Under the most-disposed case for this outcome, a national crisis in LLW l
ranagerent would occur if the entire iLRWPM were found to be unconstitutional, and Congress would take quick and radical action to address the problem. After enactment of additional legislation, which could turn i
responsibility for disposal of cocmercial LLW over to DOE,100 percent disposal capacity is achieved by 1999.
In the least-disposed case, all l
incentives and framework in the LLRWPM will have been removed and no disposal capacity would be available to any generators for an indefinite period of time.
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C.1 Partially Severed Outcome - Most-Disposed Case In this scenario, the take-title provision will continue to apply to compacts, but not to unaffiliated States. The Cout t may rule'that the take-title.
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provision of the LLRWPAA is unconstitutional when directed toward an individual State, but constitutional when directed toward States party to a regional compact that has received Congressional consent. Compacts will i
retain the authority to exclude waste generated outside the compact, and the compact member States will be subject to the take-title provision, if disposal i
capacity is not established by January 1,1996. Unaffiliated States escape t
the consequences of the take-title provision, but must accept waste from any source, if an operational disposal facility is developed within their borders.
The analysis for the most-disposed case assumes that the Northwest, Rocky Mountain, and Southeast Compacts and those compacts that are scheduled to meet the January 1,1996, milestone (Central, Central Midwest, and Southwest) remain intact.
Similar to Case A.1, it is assumed that the facility at i
Barnwell, Scuth Carolina, will remain open until the new facility in North Carolina is operational.
i Coripacts not scheduled to meet the January 1,1996, milestone are assumed to disband, to avoid the take-title provision.
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No further developnent is assumed to occur, since any operational site in an unaffiliated State could become a " national" disposal facility. The result of I
i the most-dis;osed case for this outcome is a disposal capacity of 60 percent, j
reached in 1996, with no further increases for an indefinite period of time.
C.2 Partially Severed Dutcome - Least-Disposed Case i
This case assumes that only the Richland facility will remain open. The Barnwell facility is assumed to close as scheduled. Since the new facility serving the Southeast Compact is not scheduled to open until February 1996, the Southeast Compact is assumed to disband, to avoid the application of the i
take-title provision on January 1,1996.
Similar to the most-disposed case no further developnent of LLW disposal facilities by any other States or compacts
'j is assured for an indefinite period of time. The result of the least-disposed case for this outcome is a LLW disposal capacity of nine percent.
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4 C.3 partially Severed Outcome - Summary l
The result (i.e., LLW disposal capacity) of the least-disposed case is identical to that of the severed outcome. The result of most-disposed case of the partially severed outcome is identical to that of the severed cutcome in i
the period of July 1,1992, to January 1,1996.
Unlike the severed outcone, the most-disposed case of the partially severed outcome results in a final LLW disposal capacity of 60 percent, in the time period of January 1,1996, to
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August 1999.
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i Sunmary of Outcomes The following table summarizes the most-disposed and least-disposed cases for the three outcomes.
Scenarios Partially Severed Not Severed Severed M_ost-Disposed Case (Capacity Percent) j 1999 100 100 60 1996 60 0
60 Least-Disposed Case 9
0 9
(indefinite time period)
The capacity for the most-disposed case under the not severed outcome could improve to 60 percent in 1996, if Congress reenacts the LLRWPAA minus the take-title provision.
The most-disposed case outcomes are graphically displayed in Figure 1.
Health and Safety Implications The public health and safety could be adequately protected by storage of LLW.
Although the safety reasures for longer-term storage will be greater than those employed for short-term storage, measures can be undertaken to prevent or mitigate the effects of the various internal and external hazards at a storage facility. Such hazards include loss of control through fires, container degradation, and/or waste-form decomposition. The staff also believes that exposures to workers will be reduced if disposal is accomplished. The design features of a disposal facility, including the natural features of the site, provide for isolation of LLW over a long period of time. In contrast, storage would involve increased worker exposure from unloading the waste from storage for disposal, possible waste-form processing (such as solidification or repackaging) to meet waste-acceptance criteria of a disposal facility when one becomes available, and radiation surveys during storage.
i Existing storage facilities may need to be substantially improved to store wastes safely for long time periods.
The possibility for degradation of the waste containers will exist and be a function of the materials used, the environment in which stored, and the length of time in storage.
Because of the large number of physical variables at each of the potential storage sites, no attempt has been made to quantify the health and safety impact for any outcome.
Rather, a comparison of the amount of waste and the length of time in storage for a chosen set of outcomes is presented which provides a general qualitative picture of the health and safety implications.
For example, an analysis of Figure I shows a greater need for storage of LLW over the July 1, 1992, to 1999 time frame for the not severed outcome.
Congressional response in the most-disposed case of the not severed outcome could result in legislative action to solve the nation's LLW problem, with responsibility assigr.ed to DOE.
However, the most-disposed case of the severed outcome results in significantly less waste in storage, while full disposal capacity is being developed.
If long-term storage of LLW is required, the staff will need to conduct a review to determine regulatory actions required to ensure the continued i
protection of the public health and safety and the environment.
For example, a
indefinite long-term storage would require safety measures analogous to those considered for permanent disposal.
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Table 1 Surrary of Radioactive Waste Received by Commercial Disposal Sites in 1990 Number Total V lume Percent of 3
Compact of States (ft)
National Total Volume Appalachian 4
119,582 10.5 Central 5
58,328 5.1 Central Midwest 2
102,977 9.0 Midwest 7
123,469 10.8 Northeast 2
87,018 7.6 i
Northwest 7
95,943 8.4 Rocky Mountain 4
4,481 0.4 Southeast 8
336,474 29.4 Southwestern 4
84,910 7.4 l
Total 45
5,bi5,555 55$6
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Total V lume Percent of 3
State (ft )
National Total Volume District of Columbia 539 40.1 Maine 6,865 0.6 Massachusetts 40,750 3.6 New Hampshire 1,198 0.1 l
New York 71,394 6.2 Puerto Rico 0
0.0 t
Rhode Island 160 400.1 i
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Total 130,091 11.4 l
Source: Report to Congress in Response to Public Law 99-240, 1990 Annual Report on Low-Level Radioactive Waste Program Management, (DOE /EM-0059P, September 1991) i a
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Table 2 Actual and Estimated Dates for Completing i
Steps in LLW Disposal Facility Development
[
Development Schedules Submit i
Select License Operate
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Compact / Host State Site Application F a c il i ty Appalachian / Pennsylvania Spring 1994 Spring 1994 Fall 1996 Central / Nebraska Dec 1989 Jul 1990 Fall 1995 Central Midwest / Illinois Early 1992 May 1991 Late 1993 Midwest /0hio Unscheduled Unscheduled Unscheduled Northeast / Connecticut &
Late 1992 Jun 1994 Late 1996 New Jersey Early 1993 Jan 1995 Early 1997 Southeast / North Carolina Oct 1993 Nov 1993 Feb 1996 Southwest / California Mar 1988 Dec 1989 Mar 1993 Unaffiliated States Maine 1994 Late 1995 Late 1997 Massachusetts Jun 1994 Nov 1994 Dc 1996 New York Unscheduled Unscheduled 1998 Texas Jan 1992 Mar 1992 Mid 1996 Vermont Jan 1995 Oct 1997 Aug 1999 Note:
The following States do not have a site under development..
District of Columbia, Michigan, New Hampshire, Puerto Rico, and Rhode Island.
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i ADVANTAGES AND DISADVANTAGES OF POSSIBLE i
U.S. SUPREME COURT DECISIONS ON SEVERABILITY t
OF THE TAKE-TITLE PROVISION OF THE I
LOW-LEVEL RADI0Ar.TIVE WASTE POLICY AMENDMENTS ACT OF 1985 l
The staff has analyzed three possible variations on the severability of the take-title provision of the low-level Radioactive Waste Policy Amendments Act l
of 1985 (LLRWPAA) to determine the associated advantages and disedvantages, i
The three possible outcomes are severed, not severed, and partially severed.
The severed outcome is one in which only the take title provision of the i
LLRWPAA is found to be unconstitutional and the remainder of the LLRWPAA stands. The not severed outcome is one in which the entire LLRWPAA falls because the take-title provision is found to be unconstitutional. The Supreme Court r.ay also find that the take-title provision is constitutional as it applies to States in compacts, and unconstitutional as it applies to unaffiliated States. This latter result is referred to as the partially severed i
outcome.
In analyzing the possible conseg ences of a Supreme Court decision, i
the staff has examined credible LLW disposal scenarios ("most"-disposed and "least"-disposed cases) for these three possible outcomes. The following discussion sumarizes these cases and addresses the advantages and disadvantages of each of the outcomes.
Loss of the Take-Title Provisions The loss of the take-title provision, in whole or in part, is comon to all outcomes. A major incentive for States to develop disposal capacity would be removed with the loss of this provision, and further development could slow or cease entirely.
This would result in the need for long-term storage at many generator sites and the elimination of progress made to date in achieving a national solution to LLW disposal.
Long-term storage could have a significant cost impact on some medical generators with potential adverse affects on biomedical research.
Increased reliance on LLW storage may generate a greater frequency of health and safety concerns resulting in new regulatory action to ensure the continued protection of the public health and safety and the t
environment.
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t Severed Outccme - Disposal Sumary r
Host-Disposed Case Capacity Percent i
1999 100 t
1996 60 Least-Disposed Case 9
Severed Dutcome - Advantages The principal advantage of severability is the preservation of the remainder of the LLRWPAA. Compacts could continue LLW disposal facility development and exclude LLW generated outside their compacts. Severability would also l
allow compacts with operating LLW disposal facilities (i.e., Northwest, Rocky Mountain, and Southeast Compacts) to continue operations without generators located outside the sited compacts gaining LLW disposal access without prior compact review and approval. Severability would also preserve rebates to the States which help to finance additional disposal capacity. ' Questions regarding the return of past fees if the entire LLRWPAA is struck down would be~ avoided.
These conditions could provide sufficient incentives for the States to continue development of LLW disposal facilities.
Severability would also preserve other important provisions of the LLRWPAA including the emergency access provision and all financial and technical assistance provided by DOE.
Severed Outcome - Disadvantages The major disadvantage of this outcome is that Congressional action will not likely occur. Severability would leave the remainder of the LLRWPAA intact, and given the lack of progress in some States, development of new disposal capacity would continue to be slow or cease entirely. Because of the lack of progress to date, the LLRWPAA may be perceived as ineffective in achieving a national solution. Contrasted with non-severability, severability would provide less incentive for Congress to step in and possibly offer a more effective solution to the LLW disposal problem.
Not Severed Outcome - Disposal Sumary Most-Disposed Case Capacity Percent 1999 100 1996 0
Least-Disposed Case O
Not Severed Dutcome - Advantaoes The principal advantage of non-severability is such an outcome would likely force the examination of alternative approaches and require Congressional action. The Congress could enact the LLRWPAA without the take-title provision.
Such action could also include the assignment of LLW disposal facility development and operation to the Department of Energy (DOE). Under central Federal management, development of national LLW disposal capacity may proceed faster and more efficiently than under the current system.
Not Severed Outcome - Disadvantages The major disadvantage of this outcome is the possibility that all current disposal sites would close and all development would cease for an indefinite period of time. Congressional action is not certain and in the absence or delay of such action, no framework for progress would exist.
Other provisions of the LLRWPAA would be abolished as well including the emergency access provision and the provision of financial and technical assistance to States by DOE.
Finally, there would be no rebates to help finance facility development and a question would remain concerning the disposition of fees already collected by the States.
Partially Severed Outcome - Disposal Summary Most-Disposed Case Capacity Percent 1999 60 1996 60 Least-Disposed Case 9
Partially Severed Outcome - Advantages The principal advantage of partial severability is the possible preservation of the existing sited compacts and those which are scheduled to open LLW disposal facilities befcre January 1, 1996. These are the Central, Central Midwest, Northwest, Rocky Mountain, Southeast, and Southwestern Compacts.
Significent disposal capacity would be preserved. The incentives for these compacts to complete site development activities are the provision of disposal capacity, the avoidance of the sanctions prescribed by the take-title provision and the ability to exclude waste from outside the compact. Under this i
assumption, the advantages associated with severability would apply to this i
outcore.
Partially Severed Dutcome - Disadvantages The disadvantages of partial severability are identical to those of the severed outcome.
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