ML20035H185

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Forwards Documents Comprising Regulatory History (AE22-1) for Proposed Rules 10CFR30,40,50,70 & 72 Re Procedures & Criteria for Onsite Storage of Low Level Radwaste.Encl 1 Lists Documents Available in Nudocs
ML20035H185
Person / Time
Issue date: 04/22/1993
From: Nelson R
NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To: Conyngham M
NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
Shared Package
ML19343E697 List:
References
FRN-58FR6730, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-70, RULE-PR-72 AE22-1-001, AE22-1-1, NUDOCS 9305030275
Download: ML20035H185 (13)
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Text

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'o UNITED STATES NUCLEAR REGULATORY COMMISSION n

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.p WASHINGTON. D. C. 20555

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MEMORANDUM FOR: Margaret H. Conyngham, Acting Chief Nuclear Documents System Section Document Management Branch Division of Information Support Services Office cf Information Resources Management THRU:

James E. Kennedy, Section Leader

/

t/h Licensing and Coordination Section i

Division of Low-Level Waste Management (

jE Low-Level Waste Management Branch and Decommissioning Office of Nuclear Material Safety and Safeguards FROM:

Robert A. Nelson, Project Manager Licensing and Coordination Section Low-Level Waste Management Branch Division of Low-Level Waste Management and Decommissioning Office of Nuclear Material Safety and Safeguards

SUBJECT:

REGULATORY HISTORY - PROCEDURES AND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVEL RADI0 ACTIVE WASTE (10 CFR PARTS 30, 40, 50, 70, AND 72) (RIN 3150-AE22) - PROPOSED RULE A proposed rule, which would establish a regulatory framework containing the procedures and criteria that would apply to on-site storage of low-level radioactive beyond January 1,1996, was published in the Federal Reaister on February 2, 1993 (58 FR 6730). This memorandum forwards the documents which comprise the regulatory history for this proposed rule. lists those documents already available in the Nuclear Documents System (NUDOCS) which should be included in the regulatory history index.

consists of those regulatory history documents which shou'd be added to NUDOCS, and be made available through the Public Document.~oom and Central Files. Enclosure 3 consists of those documents which should be added to NUDOCS, and be made available only through Central Files.

9305030275 930422 PDR PR 30 58FR6730 PDR

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-M Margaret H. Conyngham l' After these documents are microfiched, please return a printout, listing these documents, to me at mail stop SE2.

If you have any questions, please call me at 504-2004.

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Robert A. Nelson, Project Manager Licensing and Coordination Section I.ow-level Waste Management Branch Division of Low-Level Waste Management and Decommissioning Office of Nuclear Material Safety and Safeguards

Enclosures:

As stated cc (w/o encl): Michael T. Lesar 1

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i INDEX OF REGULATORY HISTORY DOCUMENTS l

PROPOSED RULEMAKING PROCEDURES AND CRITERIA FOR ON-SITE STORAGE 0F LOW-LEVEL RADI0 ACTIVE WASTE 10 CFR PARTS 30, 40, 50, 70, AND 72 RIN 3150-AE22 1

FEBRUARY 2, 1993 f

DOCUMENTS CURRENTLY IN NUDOCS i

TO BE INCLUDED IN THIS INDEX (AE22-1) l t

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E INDEX OF REGULATORY HISTORY DOCUMENTS PROPOSED RULEMAKING PROCEDt'RES AND CRITERIA FOR-ON-SITE STORAGE OF LOW-LEVEL RADI0 ACTIVE WASTE' 10 CFR PARTS 30, 40, 50, 70, AND 72 RIN 3150-AE22 FEBRUARY 2, 1993-DOCUMENTS CURRENTLY IN NUDOCS TO BE INCLUDED IN THIS INDEX (AE22-1)

Accession No.

Document Availability O

J 9009250218 SECY-90-318 dated September 12, 1990, PDR

" Low-Level Radioactive Waste Policy Amendments Act Title Transfer and Possession Provisions."

See Following Comments received in response to Federal j

Reaister notice dated December 4, 1990, (55 FR 50064), " Recommendations on Title Transfer Provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985."

(

Author l 9109100056 F Johnsrud PDR

/ 9109090249 4 Lewis PDR i

J 9109090243 Barrows PDR

/ 9109090238

/ 9109090106 5 Wolmeldorf PDR

/ 9109090098 m' Mayer PDR

/9109090091 W Merkley PDR

/9109090089'*" People Againist Radioactive Waste Dumping PDR 9103060314 ' Wunsch PDR l 9110040166 S SECY-91-306 dated September 26, 1991, CF ONLY

" Analysis of Comments Received on Title-Transfer and Possession Provisions of the Low-level Radioactive Waste Policy Amendments Act of 1985."

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9202120350 (A Staff Requirements Memorandum (SRM) dated PDR January 30,1992, "SECY-91-306 - Analysis of Comments-Received on Title-Transfer and Possession Provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985."

!9203020327LR All Agreement States Transmittal of State PDR Agreements Program Information (SP-92-028) dated February 7, 1992.

/9203020320 tu All Agreement States Transmittal of State PDR Agreements Program Information (SP-92-030) dated February 14, 1992.

I 9203060161 3 Memorandum to (various) Division Directors

-CF ONLY from Richard L. Bangart, Director, Division of Low-Level Waste Management and Decommissioning (LLWM), Office of Nuclear Material Safety and Safeguards (NMSS),

dated February 28, 1992, "On-Site Storage of Low-Level Radioactive Waste Rulemaking."

j 9203240121 M Memorandum for Commissioners from James M.

PDR Taylor, Executive Director for Operations (ED0), dated March 11, 1992, "On-Site Storage of Low-Level Radioactive Waste."

I 9204160026 A' Memorandum for Edward L. Jordan, Chairman, CF ONLY Committee for Review of Generic Requirements, from Robert M. Bernero, Director, HMSS, dated April 9,1992,

" Review of Proposed Rulemaking Concerning On-Site Storage of Low-Level Radioactive Waste."

9205120246 @ Letter to Chairman Selin from Dade W.

PDR Moeller, Chairman, Advisory Committee on Nuclear Waste, dated April 30, 1992,

" Proposed Expedited Rulemaking: Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste."

r l 9203170395 "s Interoffice review comments in response to CF ONLY i

R. L. Bangart memorandum of February 28, 1992, from Lemoine J. Cunningham dated March 6, 1992.

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9205130267 O SECY-92-168 dated May 8,1992, " Notice of CF ONLY Proposed Rulemaking to Establish Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste After January 1,1996."

! 9212040196' Memorandum for Commissioners from William CF ONLY C. Parler, General Counsel, dated May 19, 1992, " Proposed Rule on Title Transfer and Possession of Low-Level Waste (SECY 168)."

9210130343 :D SRM dated September 23, 1992, "SECY-92-168 CF ONLY

- Notice of Proposed Rulemaking to Establish Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste After January 1,1996."

M SECY-92-380 dated November 9, 1992, PDR 9211160570

" Notice of Proposed Rulemaking to Establish Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste After January 1, 1996."

I9301110274 L U SRM dated Decemter 17, 1992, "SECY-92-380 PDR

- Notice of Proposed Rulemaking to Establish Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste After January 1, 1996."

l9301220108 d Memorandum for David L. Meyer, Chief, PDR RRDB/DFIPS/ADM, from Paul H. Lohaus, Chief, LLWB/LLWM/NMSS, dated January 7, 1993, " Implementation of Commission Action: Publication of Proposed Rule Entitled, ' Procedures and Criteria for On-Site Storage of Low-level Radioactive Waste.'"

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REGULATORY HISTORY DOCUMENTS PROPOSED RULEMAKING PROCEDURES AND CRITERIA FOR ON-SITE STORAGE i

0F LOW-LEVEL RADI0 ACTIVE WASTE 10 CFR PARTS 30, 40, 50, 70, AND 72 RIN 3150-AE22 FEBRUARY 2, 1993 P

DOCUMENTS TO BE ADDED TO NUDOCS AS PART OF THIS INDEX (AE22-1)

WITH PDR AND CF AVAILABILITY r

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REGULATORY HISTORY DOCUMENTS PROPOSED RULEMAKING

~ PROCEDURES AND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVEL RADI0 ACTIVE WASTE 10 CFR PARTS 30, 40, 50, 70, AND 72 RIN 3150-AE22 FEBRUARY 2, 1993 DOCUMENTS TO BE ADDED TO NUDOCS AS PART OF THIS INDEX (AE22-1)

WITH PDR AND CF AVAILABILITY

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Comments received in response to federal Reoister notice dated December 4, 1990, (55 FR 50064), " Recommendations on Title Transfer Provisions of l

the low-Level Radioactive Waste Policy Amendments Act of 1985."

(Comment letters are listed and included on the attachment) 2.

Responses to All Agreement states Transmittal of State Agreements v

Program Information (SP-92-030) dated February 14, 1992.

a.

Arkansas

[

b.

Arizona c.

California d.

Colorado e.

Illinois f.

Kansas g.

Kentucky h.

Maryland

i. New York i
j. Nevada k.

North Carolina 1.

Oregon m.

South Carolina n.

Texas o.

Washington p.

Midwest Interstate low-Level Radioactive Waste Commission

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Federal Reaister notice published February 2, 1993 (58 FR 6730),

3.

" Nuclear Regulatory Commission, 10 CFR Parts 30, 40, 50, 70, and 72, RIN 3150-AE22, Procedures and Criteria for On-Site Storage of Low-level Radioactive Waste, Proposed Rule."

4.

Regulatory Analysis for the Rulemaking to Revise 10 CFR Parts 30, 40, 50, 70, and 72 for On-Site Storage of Low-Level Radioactive Waste.

5.

Environmental Assessment and Finding of No Significant Environmental j

v Impact for the Rulemaking to Revise 10 CFR Parts 30, 40, 50, 70, and 72 1

for On-Site Storage of Low-Level Radioactive Waste.

j

'6.

OMB Supporting Statement for the Proposed Rulemaking, 10 CFR Parts 30, 40, 50, 70, and 72, Procedures and Criteria for On-Site Storage of Low-v Level Radioactive Waste (3150-0017,-0020,-0011,-0009, and -0132).-

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r LIST OF COMMENT LETTERS RECEIVED IN RESPONSE TO THE FEDERAL REGISTER NOTICE DATED DECEMBER 4, 1990 (55FR50064)

RECOMMENDATIONS ON TITLE TRANSFER PROVISIONS.

0F THE LOW-LEVEL RADI0 ACTIVE WASTE POLICY AMENDMENTS ACT OF 1985 j

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1.

LLW Corpacts - 3 1.1 Central Compact Commission, L. Hall Bohlinger, Chairman, 1/30/91 (33) 1.2 Midwest Conpact Commission, Barbara Lindsey Sims, Chair, 1/31/91 (41) 1.3 Northwest Compact Committee, Terry Husseman, Chair, 2/14/91 (75) 2.

States and State organization - 13 2.1 Arkansas LLW Advisory Committee, Greta J. Dicus, Conmissioner, 1/31/91 - Agreement State / Central Compact (21)

35) CIlli_5isE53*253:!$ fi3 l'. ~"$535~i[!!),55 232 25 2';

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w -+ w w au 2.3 Georgia Department of Natural Resources, Radioactive Materials Program, Thomas E. Hill, Manager,1/28/91 - Agreement State / Southeast Compact (47) 2.4 111inois Department of Nuclear Safety, Thomas W: Ortciger, Director, 2/13/91 - Host State / Agreement State / Central Midwest Compact (67) 25 Ei33ii)"3C13hlhi_UC305;";9E5.;n3:fi

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,s s e s ca,si gv 5co u o c c.. c n 5 acotc s-ci 2.6 Michigan Department of Health, Bureau of Environmental and Occupational Health, Lee E. Jager, Chief, 2/28/91 - Host State / potential Agreement State / Midwest Compact (68) 2.7 New Jersey Department of Environmental Protection, Radiation Protection Programs, Jill tipoti, Assistant Director,1/30/91 - Host State / Northeast Compact (15) 2.8 New York State Energy Office, State Liaison Officer, Eugene J. Gleason, 2/15/91 - Host State / Agreement State (71) 2.9 Pennsylvania Department of Environmental Resources, Arthur A. Davis, 2/12/91 - Host State / applicant for Limited Agreement State / Appalachian Compact (50) 2.10 South Carolina Department of Health and Environmental Control, Bureau of Radiological Health, Heyward G. Shealy, Chief - Host State / Agreement State / Southeast Compact (8) 2.11 Texas Department of HeaIth, Bureau of. Radiation Control, David K. Lacker, Chief - Host State / Agreement State (43) 2.12 Vermont Agency of Natural Resources, Radioytive Waste Management i

Division, William 0. Filed, Attorney,1/2351 - Host State (3) 2.13 Southern States Energy Board, Executive Director, Kenneth J. Nemeth, 1/30/91'(14) 3.

Local Government - 2 e

3.1 Cortland County, New York, LLW Waste Office, Cindy Monaco, LLRW Coordinator, 1/14/91 - candidate area (1) j 3.2 Cortland County, New York, Special Counsel, Patrick M. Snyder, 1/17/91 - candidate area (2) r

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4 Generators (utilities) - 8

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4.1 Consolidated Edison, New York, Stephen B. Bram, Vice President, 1/30/91 (53) f 4.2 Edison Electric Institute / Utility Nuclear Waste and Transportation Program, Loring E. Mills, Vice President, Nuclear Activities, 1/31/91 (24) 4.3 Entergy Operation, Inc., Gerald W. Muench, Vice President, Operations Support,1/31/91 (holding company for Arkansas P&L, Louisiana P&L, and Mississippi P&L) (38)

Gulf States Utilities Company, River Bend Nuclear Group, Louisiana, 4.4 James C. Deddens, Senior Vice President, 1/30/91 (34) 4.5. Maine Yankee Atomic Power Company, Nuclear Engineering and Licensing, S. E. Nichols, Manager, 3/06/91 (59) 4.6 New York Power Authority, Nuclear Generation, John C. Brons, Executive Vice President, 1/31/91 (18) i 4.7 Winston & Strawn, Mark J. Wetterhahn, Robert E. Helfrich and James W.

Moeller,1/31/91 (Gulf States Utilities Company, Maine Yankee Atomic Power Company, Northeast Utilities, Public Service Electric & Gas, and South Carolina Electric & Gas Company) (25) 7 4.8 Wolf Creek Nuclear Operating Corporation, Kansas, Bart D. Withers, President and Chief Executive Officer, 2/13/91 (62) 5.

Generators (non-utilities) - 4 5.1 Cintichem, Inc., New York, J. J. McGovern, President / Plant flanager, 2/04/91 (51) 5.2 E.1. Du Pont de Nemours & Co., Inc., Medical Products Department, tiassachusetts, L. R. Smith, Radiation Protection Consultant, 1/30/91 (22) 5.3 Nuclear Metals, Inc., LLRW Services, Massachusetts, Donald A. Barbour, i

1/23/91 (16) 5.4 Nuclear Storage Systems, Inc., New York, H. Y. Tammemagi, Senior Partner, 1/30/91 (49) 6.

Generators (user groups) - 4 6.1 Appalachian Compact Users of Radioactive Isotopes, ACURI Association, Stephen T. Slack, ACURI Chair, 2/28/91 (55) 6.2 California Radioactive Materials Management Forum, Alan Pasternack, Technical Director, 3/02/91 - Southwest Comhact users (74) 6.3 Michigan Coalition of Radioactive Materials Users Inc., Michrad, William R. Lukens, Executive Director, 1/29/91 (9) 6.4 Nelrad, A Consortium of Rad u ctive Materials Users, Massachusetts, Janis D. Stelluto, Executive 1,irector, 1/31/91 (40) 2

N 7.

Public interest groups - IB 7.1 Cnenango North Citizens Against Radioactive Dumping (CA Susan B. Griffin, Coordinator, South Otselic, NY,1/25/91 7.:

{ g g ;n i in: h;cth;;;;, ";r.in-. Lm.;, Philedelpm o, IA, C'itiz[ns' gainst Radioactive Dumping of Cortland County, Inc.,

7.3 Patti Michael, Vice-chair, and Mary Anne Diaz, Treasurer, Cincinnatus, NY, 1/25/91 (46) 7.4 Clark County Concerned Citizens, Ruby Cook, Secretary-Treasurer, Clark County, IL, 2/27/91 (79) 7.5 Clark County Concerned Citizens Against the Radioactive Dump, Ruby Cook, Secretary-Treasurer, Clark County, IL, 3/01/91 (65) 7.6 Committee to Bridge the Gap, Matthew Marshall, Research Associate, Los Angeles, CA, 1/30/91 and Daniel Hirsch, President, 2/27/91 and 3/01/91 (17)'

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7.8 Don't Waste New York, Rob'ert W. Bates, Chairperson, Norwich, NY, 1/31/91 and Jim Weiss, 2/25/91 (19) 7.9 Don't Waste New York & Coalition on West Valley Nuclear Wastes, Raymond C. Vaughan, Norwich, NY, 2/27/91 (63)

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!:"), h dith ". ;;h n,d, Si ::: r, EC!:", :nd *::::r:P Oirect:r, T :d end '.';;;r, Inc.,

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7.11 Heartland Operatioh to Protect the Environment, Diane A. Burton, Director, Auburn, NE, 1/30/91 and 2/28/91 (30) 7.12 Maine Citizens Against Nuclear Dumps, Phillip Merletti, contact person, Lee, Maine, 2/06/91 (57) 7.13 Ohio Citizens for Responsible Energy, Inc. (OCRE), Susan L. Hiatt, OCRE Representative, Mentor, OH, 1/30/91 (44)

'.1: ";;p h A;;in:t ":di:::th: 5mping (I'n0), ". J. Y:nd:rt::f, ""D cf A. avuo una Col;Tv.u., oc.J Cho.les Cutiec, Tcccess :ngin;;r, TAR: ef Aci;;me, Ri. iere, AZ, 1/12/01 (10' 7.1; Tc;pic Against Redicetti.e Oo;nping ' TAR 0', muoig.;d,1/10/01 7.16 People Against Radioactive Dumping, Riviera, M. J. Vanderhoof, Riviera, AZ, 1/28/91 (6) 7.17 People Against Radioactive Dumping, Roberta Vanderhoof, PARD of California and Arizona, Riviera, AZ, 1/31/91 (23) 7.18 Sierra Club, Pennsylvania Chapter, Barbara /). Hays, Chair, Harrisburg, PA, 1/27/91 (37) 8.

Individuals - 22 C.1 Cathi'n: :nd L: :,-h rr:.;;, E. " :::: c,

'Y, 1/20/01 (25]

8.2 Mrs. Carl Berg, Winside, NE undated (58) 8.3 Beverly Brown, Allen, MI, 2/19/91 (64) 8.4 Mary Coffey, Blowing Rock, NC, undated (60) 8.5 Betty Cooke, Springville, NY, 1/23/91 (7) 8.6 Karen Crandall, DeRuyter, NY, 12/29/90 (45) 3

8.7 Jace Cuje, Arlington, VA, 3/02/91 (61)

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8.8 Mary Frances Defoe, Little York, NY, 1/30/91 (42) 8.9 Steven Defoe, Little York, NY 1/30/91 (27) 8.10 Donald Doumakes, unreadable, undated (70) 8.11 Gerald Drake, Chapel Hill, NC, 3/01/91 (77) 8.12 Richard Giler, city unknown, 1/31/91 (31) 8.13 David Hall, Bath, ME, 1/30/91 (54) 8.la Mrs. Jerald Medsker, Martinsville, IL, 2/20/91 (69)

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8.16 Carol Hongerson, East Concord, NY, 1/24/91'(4) 8.17 James Rauch, Buffalo, NY, 1/25/91 (13) 8.18 Jo Ellen Roehring, Cincinnatus, NY, 1/30/91 (36) 8.19 C. p. Rupert, Durham, NC, 2/26/91 (73) 8.20 Laura Spadaro, Oak Hill, WV, undated (78) 8.21 Annie Wildwood, Mill Valley, CA, 1/29/91 (28) 8.22 Name illegible, city unknown, 2/25/91 (72)

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ppf 224 POR' I

e A5 Central interstate Low-Level Radioactive Waste Compact Commission L. Hall Bohlinger, Sc.D.

Chairman Raymond J. Peery becutive Director & Genera 1 Counsel January 30,1991 Mr. James Kennedy Office of Nuclear Materials and Safeguards U.S. Nuclear Regalatory Commission Washington, D.C. 20555 RE:

Request for Comments on the Title Transfer and Possession Provisions for the Low-level Radioactive Waste Policy Amendments Act and Staff Recommendations in SECY 90-318

Dear Mr. Kemtedy:

The Central Interstate Low-Level Radioactive Waste Compact Commission proffers the following comments on the referenced document.

t It is the opinion of this Compact that authorization to store low-level radioactive waste for long periods of time beyond January 1,1996 would convolute the purpose of the deadline and thus must not be approved. We therefore concur in general with the concept of the staff recommendations in SECY 90-318. Health and safety issues may well exist if states do not meet the January 1,1996 deadline and must take possession and title of waste for which they are not properly prepared. However, sufficient time exists to avoid this potential without allowing storage of waste for prolonged periods after January 1,1996.

Responses to specific questions follow.

What factors should the Commission considerin deciding whether to authorize on-site storage of low-level waste (other than storage for a few key months to accommodate operational needs such as consolidating shipments g

or holding for periodic treatment or decay) beyond January 1,1996'l

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Response

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Authorizing many on site storage sites increases the number of sites and may cause inceased risks to health and safety through less stringent g

requirements for storage vs. disposal EEE 233 south 13th street

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Mr. James Kennedy l

Page 2 1/30/91 Money spent to develop or maintain storage sites may not be available for development of disposal faciEties.

As mentioned, will undermine the intent of the LLRWPAA.

What are the potential health and safety and environmental impacts of increased reliance on on-site storage of low-level waste?

Response

Increased chances for package degradation and accidents.

Increased chance of release of radioactive materials through inadequate or less stringent siting, construction, and oversight requirements.

t Would low-level waste storage for other than operational needs beyond January 1,1996, have an adverse impact on incentives for timely development of permanent disposal capacity?

Response

Yes What specific administrative, technical, or legal issues are raised by the requirements for transfer of title?

Response

Requires Agreement States to self-license.

  • Requires non-Agreement States to be licensed by the NRC.

State title transfer laws may vary and complicate the issue.

Mechanics for transfer and regulatory matrices must be werked out.

For Agreement States, staff capability and equipment needs must be addressed.

State liability must be addressed.

What are the advantages and disadvantages of transfer of title and possession as separate steps?

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Mr. James Kennedy Page 3 f/30/91

Response

Advantages:

Title transfer allows states to leave waste at the point of generation,.

until it can go to a disposal facility (for short term situation between j

transfer and final deposition at a disposal facility) or until the state can i

assume responsibility for the site or build a new site (for long term l

situation).

May provide a " cleaner" change over.

May be easier for Agreement States to assume regulatory authority.

Disadvantages I

Confusion on liability and regulatory authority, but is somewhat dependent on the Agreement State status.

May delay the intent of the LLRWPAA by delaying the state taking possession.

Could any State orlocallaws interfere with or preclude transfer of tide or possession oflow-level waste?

Response

Always possible. Where the major generator is quasi-state agency (public power district or a university) state title and possession already exists and may be one and the same.

r What assurances of the availability of safe and sufficient disposal capacity for low-level waste should the Commian!on require them? What additional conditions,if any, should the Comminaion consider in reviewing such assurance?

Response

  • Storage beyond five years should require a state or compact plan on how the state or compact intends to dispose of the stored waste so that storage is not defacto disposal.

Adequate assessment by the state on storage capacity needs.

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Licensure between now and January 1,1996 of a facility by the Agreement State or NRC that may generate significant amounts of waste after January 1,1996 when the state lacks disposal capacity should be avoided.

I Mr. James Kennedy Page 4

-1/31/91

  • The type of waste to be stored in terms of decay, form, and chemical toxicity.

Are there any other spe:ific issues that would complicate the transfer of title and possession, as well as on-site storage, of low-level waste and mixed (radioactive and chemical hazardous) waste?

Response

Existing storage sites may not meet 10 CFR Parts 30,40, and 70.

6

  • Previously mentioned, but reiterated for point, the impact on Agreement State regulatory staff.

Litigation by states, generators, or third parties.

f Failure of states to resolve legal economic, and/or political issues.

Bankruptcies.

r Accidents that generate large amounts of waste not previously planned for/ emergency access to existing facilities under these circumstances.

Thank you for the opportunity to make these comments. If you have any questions, do not hesitate to contact us. The Commission's contact person or this issue is Ms. Greta Dieus, Arkansas Commission Member.

Sincerely, sf/Au. d>c.

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L Hall Bohlinger Chairman GD/ams t

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MIDWEST INTERSTATE 336 N. Robert St.

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. LOW-LEVEL RADIOACTIVE Rmm 23 gg9,n St. Paul,MN 55101 WASTE COMMISSION Ug*

3g omo Waconsin 3*""*"Y 31 ' l"l FOR YOUR INFORMATION Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555

Dear Mr. Chilk:

The Midwest Compact Commission has prepared comments in response to your letter of November 28, 1990, on the subject of low-level radioactive waste (LLW) storage.

In soliciting comments on storage, your letter posed eight questions.

They are repeated below, along with the Commission response.

1)

What factors should the Commission consider in deciding whether to authorize on-site stcrage of LLW beyond January 1, 1996, for purposes other than storage for a few months to accommodate operational needs such as consolidating shipments or holding for periodic treatment or decay?

Comments:

Section 5(e)(2) of the Low-Level Radioactive Waste Policy a.

Amendments Act of 1985 (hereafter, the "Act") gives the Sited States (Nevada, South Carolina, and Washington) the authority to penalize those states and compacts that fail to make sufficient progress in the development of new disposal f acilities.

This explicit authority expires on January 1, 1993, when access to all compact disposal facilities is limited to member states.. After that date, the Act provides that generators can request that the states take title, possession, and liability for LLW if disposal facilities are not available.

States can defer the transfer of title, possession, and liability until January 1, 1996, but must forfeit their surcharge rebates as a result.

Nothing in the Act authorizes the Nuclear Regulatory re==4ssion (NRC) to step in after 1992 and assume an activist, enforcement role to ensure that " current national policy" will be realized.

Although the January 1, 1996 milestone date may be politically or legally significant, it does not trigger any broadening of the NRC's regulatory

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responsibilities after that date.

Our records indicate that, since 1981 or earlier (" Storage of i

Low-Level Radioactive Wastes at Power Reactor Sites,* Generic j j Letter 81-38), the NRC has sought to limit temporary or N

910 070261 910131

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g Samuel J.

Chilk January 31, 1991 Page Two interim storagc of LLW to no more than five years.

This policy has been reiterated in numerous documents since that time (" Extended Storage of Low-Level Radioactive Waste:

Potential Problem Areas ' NUREG/CR-4062; ' Extended Interim j

Storage of Low-Level Radioactive Waste by Fuel Cycle and Materials Licensees," NRC Information Notice No. 90-09),

although none of these documents expressly prohibited storage of LLW beyond five years.

NRC deliberations regarding post-1995, on-site storage of low-level radioactive waste should be based on the same fundamental health and safety considerations that would normally guide such storage authorizations at other times.

Assuming that 1) the underlying rationale for the five-year limitation is sound (see Question 2), 2) NRC pclicy does not change in this regard, and 3) the specific storage proposal does not pose any threat to public health or safety, it should not make any difference whether a five-year storage period extends beyond January 1, 1996, or even whether such a period is initiated or extended after that date.

b.

If the NRC refuses to authorize on-site LLW storage after January 1, 1996, some generators may seek to have title, possession, and liability transferred to the state, as provided for in the Act.

In the absence of any disposal alternative or legal obstacles, the practical effect of such a policy may be to cimply force a transfer of storage -

responsibility, rather than eliminate any need for storage.

NRC policy should be based on health and safety considerations.

If it is, there would seem to be little benefit derived in shifting the storage responsibility from one party to another, particularly if it creates regulatory and legal probleme, increases handling and transport, and results in the management of LLW by less experienced entities.

In fact, it is very possible that forcing transfer of the waste would increase, rather than reduce, any exposure risk to workers or members of the public.

2)

What are the potential health and safety and environmental impacts of increased reliance on on-site storage of LLW7 Comments:

Beyond some very broad, statistical generalizations about the a.

increased risk associated with extended storage at multiple locatior.s, it is difficult to be specific about potential

ei g

e Samuel J.

Chilk January 31, 1991 Page Three impacts.

These impacts will be dependent on waste characteristics, the given situation at each storage location, and the length of time the LLW is stored.

This LLW variability was addressed in 1985 when Brookhaven National Laboratory completed an NRC report entitled

' Extended Storage of Low-Level Radioactive Waste: Potential Problem Areas" (NUREG/CR-4062).

The report highlighted differences in waste streams, waste packaging, and storage environments, and it identified some of the uncertainties associated with these factors.

Its purpose was to ensure that evaluation of specific storage proposals would include consideration of any potential problems.

b.

While the Brookhaven report identifies the length of the storage period as a key factor in assessing health and safety impacts, it does not provide any basis for designating the fifth year of LLW storage as a watershed year in terms of impacts.

In fact, the principle basis for the NRC's five-year storage policy had more to do with the historical requirement to renew material licenses every five years than it did with any health and safety considerations.

Given the status of facility development in some states, the NRC should anticipate requests for storage that extenC beyond five years.

An inflexible policy that limits on-site LLW storage to an arbitrary, five-year period and fails to recognize the significant variability in storage scenarios will have to be accompanied by a much more persuasive justification than exists now for that limit.

3)

Would LLW storage for other than operational needs beyond January 1, 1996, have an adverse impact on the incentive for timely development of permanent disposal capacity?

Comments:

While NRC adninistrative and regulatory operations may be a.

affected if extended storage lessens the incentive to develop new facilities, Congress did not direct the NRC to ensure timely development of disposal capacity.

It did provide an incentive after January 1, 1996, but lef t implementation with the LLW generators.

At their request, title, possession, and liability for the waste can be transferred to the states.

By prohibiting on-site storage after January 1, 1996, the NRC would take away the discretion that Congress vested with the

g Samuel J.

Chilk January 31, 1991 Page Four generators to decide whether or not such a transfer should Given all the legal uncertainties that may be occur.

associated with the transfer of title, possession, and liability; the likely reluctance of many generators to force such a transfer; and the questionable health and safety basis for such a policy, it is unclear why the NRC would want to consider pursuing such a course of action.

b.

Absent an arbitrary NRC ban on storage after January 1, 1996, there still remain other incentives that encourage state development of new LLW disposal facilities.

They include the the physical limitations on storage that may exist now, or at a future time, at some generator sites; the transfer option that some generators may seek to implement; the political impact of multiple, temporary storage locations in the affected states; the generator costs associated with waste storage; litigation costs; and the potential loss of jobs and revenue if generators choose to move operations to other states or regions with access to disposal facilities.

4)

What specific administrative, technical or legal issues are raised by the requirements for transfer of title?

Comments:

Section 5(d)(2)(C) of the Act provides that "...each state in a.

which LLW is generated, upon the request of the generator or owner of the waste, shall take title to the waste (emphasis added), be obligated to take possession of the waste, and shall be liable for all damages directly or indirectly incurred by such generator or owner as a consequence of the failure of the state to take possession of the waste as soon after [ January 1, 1993/ January 1, 1996) as the generator or owner notifies tho' state that the waste is available for shipment."

Serious questions have been posed regarding the constitutionality of the title transfer provision of the Act.

These questions are currently being litigated by the states of Michigan and New York and a citizens group in Nebraska.

b.

An issue arises as to whether the title transfer provision is' self-executing.

That is, by operation of law, will title to the LLW transfer automatically from the generator or owner to the state, or is there some action that the state must take in order for title to be transferred?

If there is, can the

I Samuel J. Chilk January 31, 1991 Page Five state be compelled to take that action?

If the state refuses to take any required action, can some other institution, perhaps a federal court or the United States Congress, take the action on behalf of the state or declare that, in these circumstances, the action need not be taken to vest title in the states?

Can a state be required to take title to property, in this c.

case LLW, against its will?

If the answer to the foregoing question is no, and if such an answer is based upon a provision of state law, then a dispute may arise regarding federal preemption and the constitutionality of the transfer provision.

d.

To the extent that 10 CFR Parts 30, 40, 50 and 70 require a state to have a license before it can 14ke title to LLW, an issue arises as to whether the granting of such a license is a condition precedent to a legally effective title transfer.

If it is, then refusal of a state to qualify or apply for a license might be a barrier to title transfer.

If such a license is not a condition precedent to legally effective title transfer (which appears to be the case), then an issue arises regarding the consequences of a state taking title without first receiving the necessary license.

The federal regulations contemplate a situation in which the transfer of ownership or possession of radioactive material is consensual.

The title transfer provision of the Act creates the possibility of nonconsensual transfer of ownership and possession, which could be problematic.

Although the conventional wisdom may be that a title transfer e.

will shift liability to states that take title to the LLW, a

number of issues arise.

The language of the Act, in effect, makes a title-holding state the indemnitor of generators or owners who incur liability *...as a consequence of the failure of the state to take possession of the waste as soon after [ January 1, 1993/1996) as the generator or owner notifies the state that the waste is available for shipment."

is this statutory language intended to displace all limitations on a state's liability derived from the doctrine of sovereign immunity, either legislative or constitutional? A position that the title transfer provision displaces the state doctrine of sovereign immunity, without ~

the consent of the state, once again raises the constitutional issue presented by the Michigan, New York, and Nebraska litigation.

4

g 7

Samuel J. Chilk January 31, 1991 Page Six 5)

What are the advantages and disadvantages of transfer of title and possession as separate steps?

Comments:

If title is transferred to a state, but possession remains a.

with the generator or the owner, the generator or owner is presumably a bailee.

As such, it probably has all the rights and obligations (including potential liabiliities) of a bailee of personal property.

The title transfer provision of the Act contemplates bifurcation of transfer of title and possession and, in effect, indemnifies the generator or owner during a period of bifurcation.

b.

An issue arises as to whether the state's obligation to take possession of LLW is specifically enforceable.

If there is any thought that it is specifically enforceable, it is interesting to contemplate the mechanism through which a federal court might enforce the obligation.

6)

Could any state or local laws interfere with or preclude transfer of title or possession of LLW7 Comments:

The transfer of title and possession is provided for by federal statute.

If such transfer is inconsistent with any state or local law, constitutional issues again arise regarding preemption.

(See Question 4.)

7)

What assurances of the availability of safe and sufficient disposal capacity for LLW should the em -fsalon require and when should it require them? What additional conditions, if any, should the Comunission consider in reviewing such assurances?

Comments:

The Commission's LLW on-site storage decisions should be based on health and safety considerations.

The r==f asion does not have the authority to condition on-site storage approval after January 1, 1996, on the extraction of assurances from generators that safe and sufficient storage capacity will eventually be available.

The generators do not control facility development and are not in any position to provide such assurances.

Nor does the NRC have the suthorfty to seek such assurances from states as the price of approving e-site LLW storage after

j,.-

Samuel J. Chilk January 31, 1991 Page Seven January 1, 1996, particularly if the storage does not pose a leitimate health or safety risk.

If the NRC or other parties believe that additional measures and incentives are necessary to further encourage development of new disposal facilities,.they should go to Congress and seek the appropriate legislation.

8)

Are there any other specific issues that would complicate the transfer of title and possession, as well as on-site storage, of LLW and mixed (radioactive and chemical hatardous) waste?

Comments:

It does not appear that an NRC policy opposing on-site storage of LLW after January 1, 1996, would be a matter of compatibility for Agreement States.

If it is not, how would the NRC ensure uniformity in the application of a policy that states may not support?

Even if it was a matter of compatibility, how would the NRC enforce state implementation?

In conclusion, we urge that the NRC recognize the likelihood that some on-site storage will be necessary after January 1, 1996.

The NRC must avoid assuming an unauthorized role as the enforcer of

" national policy."

Instead, it must 1) maintain flexibility in responding to storage proposals and 2) base licensing decisions on concrete health and safety considerations, not on arbitrary storage cut-offs intended to compel generator implementation of the LLW transfer provisions of the Act.

We appreciate the opportunity to participate in the Commission's formulation of policy on this important issue.

i.e also commend the Commission for directing that the views of states and compacts be solicited during development of subsequent positions on significant policy issues related to low-level radioactive waste disposal.

If you have any questions regarding the matters discussed in this letter, please contact us.

Sincerely, hu V/Y M

Barbara Lindsey Sima Chair ec:

Commissioners Richard Ihrig LLW Forum States and Compacts

.

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