ML20035H655
| ML20035H655 | |
| Person / Time | |
|---|---|
| Issue date: | 03/02/1993 |
| From: | Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA) |
| To: | Lehman R, Lieberman J, Sharp P HOUSE OF REP., HOUSE OF REP., ENERGY & COMMERCE, SENATE, ENVIRONMENT & PUBLIC WORKS |
| References | |
| RULE-PRM-60-4 CCS, NUDOCS 9305060163 | |
| Download: ML20035H655 (3) | |
Text
.
p uco
/
l*
3 i A. T):.z
"-, t o
UNITED STATES E
NUCLEAR REGULATORY COMMISSION
{
kp(
[
WASHINGTON. D.C 20666 March 2, 1993 i
The Honorable Philip R. Sharp, Chairman Subcommittee on Energy and Power Committee on Energy and Commerce United States House of Representatives Washington, DC 20515
Dear Mr. Chairman:
i The Nuclear Regulatory Commission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Commission will determine whether i
reprocessing waste, including in particular certain waste stored at the U.S.
Department of Energy's site at Hanford, Washington, is high-level waste and, therefore, subject to the Commission's licensing authority.
The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to comment.
Twelve comments were received. The majority of the comments opposed the petition.
l After reviewing the petition and the comments received, the NRC has concluded j
that the petition should be denied. The petition is being denied because the l
NRC concludes that the principles for waste classification are well estab-i lished and can be applied on a case-by-case basis without revision to the regulations.
l A notice of this denial will be published in the Federal Reaister within the next few days. We have enclosed a copy of the denial that is being sent to the Federal Reaister. The States of Washington and Oregon have been notified of this action.
l Sincerely, N
Y r
Dennis K. Rathbun, Director Office of Congressional Affairs t
l
Enclosure:
As stated cc:
Representative Michael Bilirakis i
I n
9305060163 930302 s
I Statop UNITED STATES o
f g
NUCLEAR REGULATORY COMMISSION j
{
g i
E WASHINGTON. D. C. 20555 9,
'l
/
March 2, 1993 1
The Honorable Richard H. Lehman, Chairman Subcomittee on Energy and Mineral Resot.:ces Comittee on Natural Resources United States House of Representatives Washington, DC 20515
Dear Mr. Chairman:
]
The Nuclear Regulatory Comission (NRC) has denied a petition for rulemaking (PRM 60-4) that was received on July 27, 1990, from the States of Washington and Oregon.
The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural fruework and substantive standards by which the Comission will determine whether i
reprocessing waste, including in particular certain waste stored at the U.S.
Department of Energy's site at Hanford, Washington, is high-level waste and, therefore, subject to the Comission's licensing authority.
The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to coment.
Twelve coments were received.
The majority of the coments opposed the petition.
j After reviewing the petition and the coments received, the NRC has concluded that the petition should be denied. The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the regulations.
A notice of this denial will be published in the Federal Reaister within the next few days.
We have enclosed a copy of the denial that is being sent to the Federal Reaister. The States of Washington and Oregon have been notified of this action.
1 s
Sincerely, j
l Dennis K. Rathbun, Director Office of Congressional Affairs
Enclosure:
As stated cc: Representative Barbara Vucanovich i
l
[SQ CIC 1
UNITED STATES
~g NUCLEAR REGULATORY COMMISSION n
h WASHINGTON. D. C. 20555
\\
/
March 2, 1993 j
The Honorable Joseph Lieberman, Chairman i
Subcomittee on Clean Air and Nuclear Regulation Comittee on Environment and Public Works United States Senate Washington, DC 20510
Dear Mr. Chairman:
The Nuclear Regulatory Comission (NRC) has denied a petition for rulemaking i
(PRM 60-4) that was received on July 27, 1990, from the States of Washington i
and Oregon. The petition requested the NRC to revise the definition of the term "high-level radioactive waste" so as to establish a procedural framework and substantive standards by which the Comission will determine whether reprocessing waste, including in particular certain waste stored at the U.S.
Department of Energy's site at Hanford, Washington, is high-level waste and, j
therefore, subject to the Comission's licensing authority.
The petition was published in the Federal Reaister on December 17, 1990, with an opportunity for the public to coment. Twelve comments were received. The majority of the coments opposed the petition.
After reviewing the petition and the coments received, the NRC has concluded that the petition should be denied. The petition is being denied because the NRC concludes that the principles for waste classification are well estab-lished and can be applied on a case-by-case basis without revision to the regulations.
A notice of this denial will be published in the Federal Reaister within the next few days. We have enclosed a copy of the denial that is being sent to the Federal Reaister. The States of Washington and Oregon have been notified of this action.
Sincerely, Aa Dennis K. Rathbun, Director Office of Congressional Affairs
Enclosure:
As stated i
cc: Senator Alan K. Simpson j
4 r
[7590-01-P]
l f
NUCLEAR REGULATORY COPMISSION l
Docket No. PRM-60-4 States of Washington and Oregon:
Denial of Petition for Rulemaking AGENCY:
Nuclear Regulatory Commission.
ACTION:
Denial of petition for rulemaking.
f
SUMMARY
- The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-60-4), submitted by the States of Washington and Oregen, which I
deals with the process and criteria for classifying radioactive waste materials at defense facilities as high-level radioactive waste (HLW) or as non-HLW.
(As noted in the petition, certain facilities for the storage of HLW are subject to NRC licensing authority.) The petition is being denied because the NRC concludes that the principles for waste classification are well established and can be applied on a case-by-case basis without revision to the regulations.
ADDRESSES: Copies of the petition for rulemaking, the public comments l
received, and the NRC's letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 2120 L Street, NW.
(Lower Level), Washington, DC.
-93p3/9# W 3
FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Comission, Washington, DC 20555, telephone (301) 492-3878.
l SUPPLEMENTARY INFORMATION:
1.
The Petition The States of Washington and Oregon, and the Yakima Indian Nation, initially submitted a petition for rulemaking on this subject on January 2, 1990. On February 7, 1990, the NRC staff conferred with the petitioners as contemplated by Paragraph (b) of 10 CFR 2.802.
In response to suggestions by the NRC staff, the petition was clarified and resubmitted (by the States of Washington and Oregon) on July 27, 1990.
t On December 17, 1990, the Nuclear Regulatory Comission published a notice of receipt of the petition for rulemaking (55 FR 51732). The petition requested that the Comission revise the definition of "high-level radioactive waste" (HLW) so as to establish a procedural framework and substantive standards by which the Comission will determine whether reprocessing waste, including in particular certain waste stored at the U.S. Department of Energy's (DOE) site at Hanford, Washington, is HLW and, therefore, subject to the Comission's licensing authority.
The petitioners request that the Comission amend 10 CFR 60.2 to clarify the definition of HLW and the definition of "HLW facility." The petitioners specifically request that the Comission:
2
)
l i
1.
Establish a process to evaluate the treatment of defense reprocessing wastes in tanks so that such wastes will not be considered HLW r
if, prior to disposal, each tank is treated to remove the largest technically achievable amount of radioactivity; and 2.
Require that the heat produced by residual radionuclides, together I
with the heat of reaction during grout processing (if employed as a treatment technology), will be within limits established to ensure that grout meets temperature requirements for long-tern stability for low-level waste forms.
The petitioners state that the petition for rulemaking is based, in part, on Section 202 of the Energy Reorganization Act of 1974 (ERA), which provides for the Comission to exercise licensing and related regulatory authority over " facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive wastes generated by [ DOE] which are not used for, or are part of, research and development activities."
According to the petitioners, the legislative history of the ERA reveals that Congress intended the Comission to license defense reprocessing tank j
wastes at the point of long-term storage or disposal. The petitioners note that " low-fraction wastes" resulting from pretreatment of tank wastes are j
scheduled to be grouted and disposed of in land-based grout vaults on the Hanford site in accordance with regulations developed under the Resource Conservation and Recovery Act (RCRA). The petitioners believe that if these wastes are HLW, they clearly fall under the Comission's licensing jurisdiction under Section 202(4) of the Energy Reorganization Act of 1974 (42 USC 5842(4)).
The petitioners acknowledge that the present definition of HLW in the 4
Comission's regulations is based upon the source of the waste, and that 3
1
I.
l
" incidental waste" generated in the course of reprocessing is not HLW.
(The latter point is evident from the proposal to amend 10 CFR 60.2'to provide that a residual fraction would be " considered an incidental waste and, therefore, not HLW.") The petitioners claim, however, that wastes stored in tanks at Hanford cannot practicably be classified as incidental waste (as opposed to HLW) because the tanks contain a mixture of wastes from a number of sources, including reprocessing of reactor fuel. Moreover, the' petitioners state that j
radionuclide inventories are estimates subject to substantial uncertainty, owing to lack of accurate records. Further, the petitioners assert that i
neither DOE, the Commission, nor the petitioners have adequate information j
regarding the~ source and composition'of the tank waste. Hence, the petitioners believe that the Commission needs to establish both a procedure and a standard for making an evaluation as to whether wastes are HLW on a tank-by-tank basis.
The petitioners assert that the proposed amendment is essential to provide protection of the future health and safety of the citizens of the Pacific Northwest.
II.
Classification of DOE Reprocessing Wastes At Hanford and other sites, questions have arisen regarding the classification of reprocessing wastes for which DOE must provide disposal.
In the long-standing view of the Commission, these questions must be resolved by examining the source of the wastes in question. The reason for this is that when Congress assigned to~NRC the licensing authority over certain DOE facilities for "high-level radioactive wastes," the Congress was referring to 4
a
i
(
those materials encompassed within the meaning of the term "high-level l
radioactive waste" in Appendix F of 10 CFR Part 50.
(For a full statement of j
this position, see the discussion presented in the Commission's advance notice i
of proposed rulemaking, " Definition of High-Level Radioactive Waste" (52 FR i
5993, February 27,1987).) Accordingly, any facility to be used for the j
disposal of "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent..." as HLW is defined in Appendix F to Part 50, must be licensed by the NRC. Most of the waste storage i
tanks at Savannah River (South Carolina), West Valley (New York), and Hanford contain wastes that meet this definition, and the facil'ities to be used for i
disposal of these wastes are, therefore, potentially subject to NRC licensing l
ii jurisdiction.
i However, when the Appendix F definition was promulgated, the Atemic l
Energy Commission specifically noted that the term HLW did not include'
" incidental" waste resulting from reprocessing plant operations, such as ion l
exchange beds, sludges, and contaminated laboratory items, such as clothing, tools, and equipment. Neither were radioactive hulls and other irradiated and contaminated fuel structural hardware encompassed by the Appendix F definition. Under the same reasoning, as the Commission has previously indicated, incidental wastes generated in further treatment of HLW (e.g., salt residues or miscellaneous trash from waste glass processing) would be outside the Appendix F definition.
In the cases of Savannah River and West Valley wastes, DOE plans to retrieve the. wastes from their storage tanks and to separate essentially all of the radioactive materials for eventual disposal in a deep-geologic.HLW
repository.1 Accordingly, the projected recovery of HLW from the wastes in tank storage at those sites will be sufficiently complete that the decontaminated salts and other residual wastes are classified as " incidental" (i.e.,non-HLW). The NRC will have no regulatory authority, under Section 202 i
of the Energy Reorganization Act, over DOE's facllities to be used for processing and disposal of the incidental waste.
At Hanford, DOE plans to process the wastes presently stored in double-i shell tanks in a manner similar to that planned for the wastes at Savannah River and West Valley. Such processing would separate most of the radioactive constituents of the wastes for eventual deep-geologic repository disposal and, the residual salts would be disposed of onsite in a shallow, near-surface concrete-like grout facility.
(Plans for processing of single-i shell tank wastes have been deferred.)
However, classification of the Hanford double-shell tank wastes has proven more difficult than classification of t
Savannah River and West Valley wastes. At Hanford, many of the primary I
reprocessing wastes were generated using older separation technologies, which resulted in substantial dilution of those wastes with nonradioactive materials.
In addition, many of the tanks at Hanford contain mixtures of wastes from both reprocessing sources and other sources.
- Finally, recordkeeping at Hanford was not always thorough enough to allow precise determinations of the origins of the wastes now present in specific tanks at 25ee 52 FR 5992, February 27,1987 (definition of "high-level waste"), n.1, where the Commission characterizes as " incidental waste," the decontaminated salt with residual activities on the order of 1,500 nCi/g Cs-137, 30 nCi/g Sr-90, 2nci/g Pu, as described in the Department of Energy's 1
FEIS on long-term management of defense HLW at the Savannah River Plant, DOE /EIS-0023, 1979.
Although an EIS has not yet been published for the West Valley Demonstration Project, preliminary estimates indicate the likelihood of an i
equivalent degree of separation.
6 l
~
i Hanford.
For these reasons, some of the Hanford tank wastes cannot be readily i
classified as either HLW or incidental wastes using only the definitions and concepts discussed above.
Taking into account these uncertainties and their implications with respect to NRC jurisdiction, the NRC and DOE staff held several meetings to explore the situation in detail. A principal objective of these meetings was to ascertain, to the extent practicable, whether some or all of the wastes i
should be regarded as HLW and whether, on the other hand, some or all of the
{
t wastes should be classified as non-HLW.
Several things became clear as a result of these meetings.
First, management records were adequate for DOE to determine that two double-shell waste tanks do not contaf a wastes from reprocessing of reactor fuels. Therefore, these wastes clearly do not contain HLW within the l
Appendix F definition. The NRC agreed with DOE that any disposal facility intended exclusively for these wastes would not be subject to NRC licensing authority.
Second, DOE has carried out a " material balance" analysis of waste management activities at Hanford. This analysis estimated the total amount of "first cycle reprocessing wastes" generated at Hanford and, to the extent practical, the current location of those wastes. The DOE proposed onsite grout disposal of the residual waste from the double-shell tank waste processing would be only a small fraction of the reprocessing wastes originally generated at the site.
Finally, DOE studied possible technologies for additional waste i
processing, and agreed to remove the largest practical amount of radioactive material from double-shell tank wastes prior to disposal in onsite grout 7
l 1
l I
l facilities. This commitment by DOE, coupled with the meterial-balance study i
4 indicating that most of the originally-generated radioactive material would be recovered, led the NRC staff to conclude that t% residual waste material should be classified as incidental waste, since a < xte wastes incidental to l
the process of recovering HLW. With this classification, DOE could proceed j
3 i
with onsite disposal of such incidental wastes in a grout facility without-l licensing by the NRC.
It should be noted that if the DOE processing operations go as planned, the residual activity of these incidental wastes would be below the concentration limits for Class C wastes under'the waste.
classification criteria of 10 CFR Part' 61.
Following its review, the NRC staff, by letter dated September 25, 1989, from R. M. Bernero, Director, Office of Nuclear Material Safety and t
Safeguards, NRC, to A. J. Rizzo, Assistant Manager for Operations, Richland j
Operations Office, DOE, endorsed DOE's plans to sample and analyze the grout l
feeds before disposal in an effort to control the final composition of the f
grout feed. However, the staff indicated that if DOE were to find, in the i
course of cor. ducting the sampling program, that the inventories of key i
radionuclides entering the grout facility are significantly higher than l
1 i
previously estimated, DOE should notify the' NRC and other affected parties in j
a timely manner.
It should be-noted that the appropriate classification of some Hanford wastes remains to be determined -- specifically, any single-shell tank wastes, and any empty but still contaminated waste tanks DOE might dispose of l
I in-place.
For both types of wastes, a' case-by-case determination of the l
l appropriate waste classification might be necessary.
8 f,
III. Discussion The petition for rulemaking presents two basic issues. The question is not whether "high-level waste" should be interpreted by reference to the source-based concepts derived from Apper; dix F to 10 CFR Part 50. The petitioners agree that this is proper. Nor is there any fundamental challenge to the concept that " incidental wastes' are excluded from the definition of "high-level waste." The issues are much narrower ones. The first issue is a substantive one -- the criteria to be applied in differentiating incidental waste from high-level waste. The second issue is a procedural one -- the process that should be employed by the Commission in arriving at a judgment whether or not it has jurisdiction over particular facilities. These will be addressed in turn.
A. The Standard for Classification We first address the standard that should be employed in distinguishing high-level waste from incidental waste.
In doing so, we strive to apply the policies that underlie the adoption of Appendix F to 10 CFR.Part 50 (and, hence, Section 202 of the Energy Reorganization Act).
The petitioners suggest that the proper standard, to be applied on a tank-by-tank basis, is to consider all processing streams to be high-level waste unless they have been treated, prior to disposal, "to remove the largest technically achievable amount of radioactivity." Adoption of such a criterion would certainly serve the goal, which had been contemplated by the Commission, of removing the hazardous process streams to a geologic repository for 9
l
permanent storage.
It is not the only standard, however, that would suffice for this purpose, particularly when it is viewed in a broader regulatory context.
The clearest expression of the overall regulatory objectives is the Atomic Energy Comission's (AEC's) explanatory statement when it promulgated Appendix F -- namely, "that the public interest requires that a high degree of decontamination capability be included in such facilities and that any residual radioactive contamination after decommissioning be sufficiently low as not to represent a hazard to the public health and safety." 35 FR 17530, November 14, 1970. As we read the AEC's intent, the reference to "a high degree of decontamination capability" leaves a substantial degree of discretion.
It certainly does not rule out consideration of economic factors as well as technical ones.
It was the AEC's contemporaneous practice to consider financial impacts as, for example, in controlling releases of radioactive materials from licensed facilities to the lowest levels
" technically and economically practical." AEC Manual Chapter 0511. When the AEC spoke of a "high degree" of decontamination capability, we believe that it was guided by similar considerations. Moreover, from a policy standpoint, this makes good sense, for so long as there is adequate protection of public health and safety, it would not be prudent to expend potentially vast sums without a commensurate expectation of benefit to health and the environment.
Achieving a "high degree of decontamination capability" implies, then, that the facility should separate for disposal as much of the radioactivity as possible, using processes that are technically and economically practical.
In addition, however, as the AEC's statement indicates, the residual radioactive l
10 I
contamination should be sufficiently low as not to endanger public health and
[
i safety.
j These principles -- high decontamination capability and protection of j
health and safety -- are the essential benchmarks that have influenced the development of NRC's position vis-a-vis DOE on the question of the proper classification of the tank wastes and grout at Hanford.
When the question regarding classification of wastes was first raised, the NRC staff identified to DOE some approaches that might~be used in distinguishing HLW from incidental waste. One approach was expressed as i
follows:2
]
?
As an alternative approach, we suggest that DOE attempt an overall l,
material balance for HLW at the Hanford site, using the source-based meaning of HLW.
It is hoped that this approach might provide a more efficient means of identifying those wastes subject to licensing by NRC l
l under terms of the 1974 Energy Reorganization Act. Under this approach, l
if DOE could demonstrate that the largest practical amount of the total site activity attributable to "first-cycle solvent extraction" wastes l
has been segregated for disposal as HLW, then NRC would view the j
residual as a non-HLW. We would anticipate that at least 90 percent of-the activity would have been separated in this way. Thus, if it can b'e l
t shown that DOE has' processed the waste with the intent to dispose of the-HLW in a repository or other appropriate licensed facility, leaving
' Letter from Michael J. Bell, Chief,. Regulatory Branch, Division of low-Level Waste Management and Decommissioning, Office of Nuclear Material Safety and Safeguards, NRC, to Ronald E. Gerton, Director, Waste Management Division, l
Richland Operations Office, DOE, November 29, 1988.
The letter included some
" suggested criteria" involving a " good faith" effort to achieve isolation'of HLW from nonradioactive salts, such an effort to be judged, as a practical matter,-by considering (among other things) alternative separation processes.
11
behind only a small fraction of only moderately radioactive material, then the goals stated in 10 CFR Part 50 Appendix F and incorporated in the Energy Reorganization Act would have been satisfied; and the j
disposal of the residual would accordingly not be subject to NRC licensing.
In response, DOE considered the practicality of various waste processing alternatives and presented the results of its study by letter dwted March 6, 1989.3 The results were also presented at a meeting among interested parties, including the petitioners, held on August 4, 1989.
(Minutes of the meeting are available for public inspection in the NRC Public Document Room)
DOE's " baseline" disposal plans would have recovered all but about 12-13 l
million curies of cesium-137, together with lesser activities of strontium-l 90, transuranics, and other radionuclides.'
DOE's study indicated the practicality of removing an additional 6 million curies of cesium-137 for j
repository disposal. DOE proposed to remove this additional 6 million curies of cesium-137. DOE also identified additional treatment alternatives, with their associated costs, which it viewed as not being economically practical.
j DOE's material balance showed that, after the residue from the double-shell tank wastes is grouted, 2 to 3 percent of the key radionuclides which originally entered all Hanford tanks would be disposed of as LLW in near-surface vaults. The concentrations of radionuclides'in the grout would be 3Letter from A.
J.
Rizzo, Assistant Manager for Operations, Richland Operations Office, DOE, to Robert M. Bernero, Director, Office of Nuclear Materials Safety and Safeguards, NRC, March 6,1989.
% E noted in the March 6, 1989 letter from Rizzo to Bernero that, based on limited available analytical data, the total cesium-137 could be as much as 20 million curies versus the 12-13 million estimate.
12
comparable to Class C for cesium and transuranic wastes, and to Class A or B for the remainder.5 DOE also noted certain engineering and institutional factors that might compensate, especially as to potential intrusion hazards, for the possibility that the total amount of waste that would be grouted would be greater than the amount of Class C waste that might be contained in a typical commercial burial ground.
Based on its review of DOE's March 6, 1989 submission, the NRC staff concluded that DOE's proposed processing would remove the largest practical amount of total site activity, attributable to HLW, for disposal in a deep j
geologic repository. This finding was based on (1) past and planned treatment of the tank wastes; (2) radionuclide concentration and material balance; and (3) cost-effectiveness of additional radionuclide removal. These conclusions reflected DOE's undertakings both to achieve a high degree of separation and to provide protection of public health and safety. As a result, the staff concluded that the expected residual waste would not be high-level waste and would thus not be subject to NRC licensing authority. The staff thereupon advised DOE that NRC agreed that the criteria used by DOE for classification
[
of the grout feed are appropriate and that the grout facility for the disposal i
i 5NRC understood this statement to connote that cesium-137 and transuranic radionuclides in the residual waste would be less than the concentration limits for Class C low-level waste, as defined in NRC's requirements in 10 CFR Part 61, and that the concentration of other radionuclides would be less than the i
concentration limits for Class A or B low-level waste.
13 i
l
)
of the double-shell tank waste would not be subject to NRC licensing authority.6 At a meeting in Richland, Washington on July 16, 1992, DOE staff presented more detailed double-shell tank waste processing options and, based l
on recent analyses, summarized available information on the characteristics of waste within the tanks. DOE's current estimate of the total amount of radioactivity proposed for disposal in grout in near-surface vaults is within l
earlier range estimates but is now believed to be nearer the upper end of the range. DOE also clarified its intention to apply criteria comparable to the l
Performance Objectives set out l
in 10 CFR Part 61. Among other things, these performance objectives include numerical radiation exposure limits for protection of the general population from releases of radioactivity and requires a design to achieve long-term stability of the disposal site.
DOE intends to complete a reassessment of the tank waste processing options by March 1993. This reassessment, the NRC staff understands, will include a reexamination of the practicality of achieving higher degrees of separation, particularly with respect to those tanks that contain substantial quantities of key radionuclides.
Assuming implementation of DOE's plans as described above, the i
Commission concludes that any radioactive material from the double shell tanks 1
that is deposited in the grout facility would not be high-level radioactive 1
' Letter from Robert M. Bernero, Director, Office of Nuclear Material Safety and Safeguards, NRC, to A. J. Rizzo, Assistant Manager for Operations, Richland l
Operations Office, DOE, September 25, 1989. The letter also called upon DOE to l
advise NRC periodically of the analytical results of samples of key radionuclides entering the grout facility, so that the classification of the waste might be reconsidered if the inventories were significantly higher than DOE had estimated.
14 l
l
i 1
waste subject to NRC's licensing jurisdiction. The responsibility for safely managing those wastes rests with the Department of Energy. The basis for the Commission's conclusion is that the reprocessing wastes disposed of in the grout facility would be " incidental" wastes because of DOE's assurances that they: (1) have been processed (or will be further processed) to remove key radionuclides to the maximum extent that is technically and economically practical; (2) will be incorporated in a solid physical form at a concentration that does not exceed the applicable concentration limits for Class C low-level waste as set out in 10 CFR Part 61; and (3) are to be managed, pursuant to the Atomic Energy Act, so that safety requirements comparable to the performance objectives set out in 10 CFR Part 61 are satisfied.
The petitioners also requested that the Commission exercise oversight to assure that the grout meets temperature requirements for low-level waste forms. They acknowledge that DOE's vault design is protective of human health l
and the environment if heat produced by residual radioactivity, together with heat generated from reactions during the grout process, is kept within defined limits. They present no technical data to suggest that achievement of these temperature controls presents any unusual engineering challenge.
In any i
event, inasmuch as the Commission does not consider the grout produced in l
accordance with DOE's plans to be high-level waste, it does not have the authority to carry out this oversight function.
i i
15 4
i B. Procedural Issues 1.
Whether Rulemakino Is Necessary and Desirable i
The petitioners urge that the Commission initiate rulemaking procedures that would result in the establishment of substantive criteria for determining whether particular radioactive wastes either are or are not high-level waste.
Generally, a decision whether to proceed by rulemaking (as requested) or to make determinations in individual, ad hoc litigation lies within the informed discretion of the cognizant administrative agency.
Rulemaking is most appropriate where an agency seeks to establish a general principle, having prospective effect, to be applied in a wide variety of factual contexts.
Where the issue before an agency involves the application of law to a very specific existing fact situation, especially where that situation is not representative of other matters that may need to be decided by the agency, then it is clearly more efficient and more to the point to decide by a process of adjudication (i.e., on a case-by-case basis).
Applying these principles to the petition at hand, the Commission has little difficulty in concluding that rulemaking is neither necessary nor desirable.
Reprocessing wastes are located at only four principal locations in the United States. The Commission has previously determined that the i
residual contamination anticipated from proposed operations at Savannah River should be characterized as incidental waste and not high-level waste (see 52 FR 5993, Feb. 27, 1987, cited above, at footnote 1.) Wastes generated at the Idaho Chemical Processing Plant are markedly different from those at Hanford and Savannah. Therefore, if questions about classification of the 16 i
.i Idaho wastes should arise, precedents established at Savannah River and Hanford might be difficult to apply. Any wastes at the Western New York Nuclear Service Center will require treatment in accordance with the I
applicable provisions of the West Valley Demonstration Project Act.
The limited practical effect of the decision -- i.e., restricted to the Hanford tanks -- is reason enough to proceed by way of adjudication instead of j
rulemaking. The Connission is persuaded further by the need to avoid making '
premature decisions with respect to the. wastes stored at Hanford in single-j shell tanks that are not the subject of pending treatment plans.'.If the I
Commission were to establish rules to apply to the wastes remaining in those tanks, our inquiry would have to be greatly broadened; and it might become l
necessary to consider a wide range of situations that might or might not ever come to pass in the future.
f 2.
Whether the Commission Is Adeauately Informed l
I i
l j
Petitioners suggest that their proposed procedures, which include l
detailed tank-by-tank assessments, are necessary to ensure confidence in the i
treatment process employed by DOE and to build' confidence that the treatment i
standard is being met.
The issue to be decided by the Commission.is a much narrower one:
it is merely to determine whether the activities being undertaken by the Department of Energy fall within the NRC's statutory jurisdiction. As in~the case of other persons whose activities may fall within our regulatory sphere, the.
Commission may from time to time demand information so as to be able to.
' determine whether or not to initiate an enforcement action. The NRC staff has-17 1
i acted in this manner in its inquiries to DOE.
It has obtained and evaluated information that is relevant and material to a determination whether or not the proposed activities of the DOE are subject to NRC licensing jurisdiction.
All the information obtained and evaluated has been made available i
contemporaneously to the public.
Moreover, as a practical matter, NRC recognized the uncertainties t
associated with the projected radionuclide inventories in the tank wastes and l
endorsed DOE plans for sampling and analyzing the grout feeds before disposal.
l l
The objective of these efforts is to control the final composition of the l
grout wastes.
If DOE finds that it can no longer assure that these wastes I
will be managed in accordance with the criteria previously discussed, DOE should notify NRC.
If a standard of " largest technically achievable amount.... will be isolated" were to be applied, then the facts submitted by DOE might not be 4
sufficient to conclude that NRC lacked jurisdiction. However, the proper standard includes considerations of economical practicality as well. As indicated in an earlier part of this decision, the Commission has obtained information that is sufficient for this purpose.
3.
Future Ad.iudications The petitioners contemplate that if a rule were to be adopted in accordance with their proposal, particular determinations of how specific wastes would be characterized would be "left to individual adjudicative proceedings." The NRC infers that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of 18
i l
the Atomic Energy Act, as amended, 42 USC 2239. Adjudications in this type of proceeding are in some cases to be conducted in accordance with the hearing provisions of Subpart L of 10 CFR Part 2.
These procedures are often appropriate with respect to activities that l
are subject to NRC regulatory and licensing authority. However, the NRC is reluctant to employ them in the context that is proposed -- to determine whether NRC has jurisdiction in the first place. To do so would entail the l
conduct of an adjudicatory proceeding in order to see whether another adjudicatory licensing proceeding must be held. More importantly, the Commission considers that the existing record contains all the factual information needed for a decision and that no unresolved material factual issues remain that would require further proceedings.
4.
Other Considerations While both NRC and DOE have focused their attention upon the meaning of the statutory term "high-level waste" and its application to the materials in storage at Hanford, other considerations might come into play in determining whether or not DOE activities are subject to licensing.
In particular, it should be recalled that NRC exercises licensing authority under Section 202(4) only as to " facilities authorized for the express purpose of subsequent long-term storage of [ DOE-generated) high-level waste." The content of individual waste tanks is by no means dispositive of the question whether the facilities for storage of the treated waste are subject to licensing. A number of other factors may be relevant and material as well:
(1) what are the limits, geographically and functionally, of " facilities"; (2) have those facilities 19
been " authorized" (and by whom is such authorization required); and (3) have those facilities been authorized "for the express purpose of subsequent long-term storage of high-level waste" where those who may authorize the facility make no express mention of high-level waste?
It is not necessary for the Commission to address these questions at length in order to dispose of the pending petition.
IV.
Public Comments on the Petition The NRC received letters from 12 commenters. Two' letters were from other Federal agencies, two were from public interest groups, one was from a nuclear industry corporation, and seven were from private individuals. Most comments were opposed to the petition.
A.
Process and Standards Proposed in Petition Several comments expressed concern that granting the petition would have an adverse effect on the timely disposal of radioactive waste at Hanford.
This was a concern because many of the Hanford waste tanks were seen as i
nearing or exceeding their design life. The provisions of the rulemaking proposed in the petition were viewed as limiting DOE's flexibility in l
selecting the most effective processes for waste treatment and disposal. The l
petitioner's request that "best available technology" be used in removing HLW material from the tank wastes was seen as ignoring costs of disposal, exposures to workers, and environmental impacts.
20 t
i
~
l l
l Some coments disputed the petitioner's claim that the rulemaking proposed in the petition would offer a better process for classification and disposal of the Hanford tank wastes.
These comenters did not see any l
l I
advantage in the proposed process over the process for classification and disposal currently in use. One coment suggested that the Comission's rulemaking requiring disposal of Greater-than-Class C waste in a geologic repository or Comission-approved alternative (53 FR 17710, May 19,1989) might force DOE to allocate resources to handle the hazards, rather than to waste further time fruitlessly searching for ways to remove more and more activity from one part of the waste. The action proposed by the petitioners was viewed as not increasing the safety of disposal of the waste.
The Commission believes that adherence to the standard of technical and economic practicality generally reflects agreement with these coments.
B.
Creation of a Risk-Based Classification System Several coments, while noting that the rulemaking proposed by the petition would not do so, favored creation of a risk-based system of radioactive waste classification.
The Comission has previously addressed the costs and benefits of creating a new system of radioactive waste classification.
Its rationale for not doing so is outlined in the statement of considerations to the proposed Part 61 rulemaking on disposal of Greater-than Class C waste (53 FR 17709, May 18, 1988).
Further consideration of these issues is beyond the scope of this proposed rulemaking action.
21
(
C.
NRC Litersing Authority l
Some comments focused on the licensing authority of NRC over the Hanford tank wastes. DOE stated that the rulemaking suggested in the petition would involve NRC in regulation of DOE's predisposal waste treatment and processing I
activities, which would be inconsistent with NRC authority to license specific DOE facilities under the Energy Reorganization Act of 1974. Another commenter stated that the proposed rulemaking was inconsistent with the statutory responsibilities of DOE and NRC. These arguments.have already been discussed, and require no further response.
It may be emphasized, however, that even if the Commission were found to have jurisdiction over the disposal facilities, it would not regulate either the tanks themselves or the facilities being used to process the wastes in these tanks; and there is reason for concern that l
implementation of the petitioner's proposal might draw the Commission improperly into regulation of those facilities.
A commenter concluded that DOE was currently in violation of 10 CFR Part 30 requirements for a license because various near-surface waste disposal facilities at Hanford are being used for "long-term storage" of high-r i
level radioactive waste. The issue is not pertinent to the subject matter of l-the petition. However, in any case, the comment does not take into consideration the judicial interpretation of the tern in Natural Resources l
Defense Council. Inc. v. U.S. Nuclear Reaulatory Commission, 606 F.2d 1261 (D.C. Cir., 1979). The D.C. Circuit Court of Appeals ruled in this case in support of NRC's position that the tanks have not been authorized for use as l
22 l
long-term storage or disposal and are, therefore, not subject to NRC licensing.
D.
Public Input A number of comments stressed the importance of adequate public input l
into decision making regarding disposal of the Hanford tank wastes. Some called for public hearings on this subject to be held in the Pacific Northwest. One commenter noted that the EIS~which was done for Hanford provided the opportunity for public comment. Another commenter believed that the Commission's rulemaking procedures did not offer the public a better opportunity for input than does the current licensing procedure.
As indicated in the Discussion above, the NRC's review of the situation with respect to the double-walled tanks has been carried out publicly from the start. Meetings with DOE have been open, and at least one of the petitioners i
(the State of Washington) has been provided advance notice and an opportunity to attend. Documents have been placed in the Public Document Room and have been made available for public inspection.
It appears to the Commission that the essence of the issue concerns the appropriate standard for evaluating whether certain wastes should be regarded as high-level waste or not.
Sufficient factual information is available to carry out these evaluations.
Also, the petition for rulemaking has afforded an opportunity for views to be expressed with respect to the appropriateness of the standard.
A decision that NRC lacks licensing jurisdiction does not mean that opportunities for public input will be denied. As DOE undertakes its waste 23 l
i l
j management activities, it will afford opportunities for public participation to the extent required by its own enabling statutes, regulations, and orders.
i E.
Other Consents One comenter took exception to the petitioner's claim that the radioactive inventory of the Hanford tank wastes was inadequately known. The comenter believed that the contents of the tanks can be bounded well enough to judge the relative safety of various disposal options.
l The Comission considers the available information to be.sufficiently bounded to enable it to conclude that DOE's proposed operations (with respect to the material stored in the double-shell tanks) can result in the removal l
l from the Hanford double-shell tanks of as much of the radioactive waste as may be technically and economically practical, and that the applicable regulatory objectives have been satisfied. Once these judgments are made, it is not the NRC's role to judge the relative safety of various disposal options, and we decline to do so.
One coment stated that while the petition was aimed solely at the Hanford tank wastes, its provisions could potentially affect all radioactive wastes from reprocessing, including those at Savannah River, West Valley, and the Idaho National Engineering Laboratory. As the waste management programs I
at these other sites are in different stages of implementation, the impacts of the provisions would vary from site to site. At indicated above, the Comission is sensitive to this consideration yet believes that the specific i
case at hand only needs to be addressed at this time.
24 l
l
(
l
~
Some coments urged the Comission not to change the present definition of HLW. The Comission is not changing the present definition.
i i
V.
Conclusion i
For the reasons presented in this document, the petition for rulemaking is denied.
Dated at Rockville, Maryland this % day of t : - ';
, 1993.
\\
For the Nuclear Regulatory Comission.
O h%,..
-~
Samuel J. Chilk,
\\
Secretary of the omission.
i l
l 25 i
l I
4 l
i i
i CONGRESSIONAL CORRESPONDENCE SYSTEX I
DOCUMENT PREPARATION CIECKLIST Tiin checklist is
- he submitted with each doeuneat (or group of Gs/As) sent for.
ing into the CCs.
i h-h.N 1.
BRIEF DESCRIPTION OF DOCUMENT (s)
/
j
/
/
2.
TYFR0F N Correspendeaem Reariager(gstneb 3.
DOCUMENT CONTROL sensitive (NRC Caly)
Non-Seasitive 1
]
4.
CCMGRESSIONAL COMMITTER and SUBCOMMITTEES (if applicable)
Congressional cammittee i
subcommittee j
5.
SUBJECT CODES (a)
(b) i I
(c) l 6.
SOURCE OF DOCUMENTS 4
l (a) 5530 (docuasat anno.
/
(b) seaa..
(c)
Atlashmeate (d)
Rakey (e)
Other I
7.
sr8 tex too narzs b
Date.oCE esat dooument to Ces (a)
(b)
Date CCS.Eeesiveesdesummat j
(e)
Data returned to OCE for additional information 4
(d)
Date resubmitted by-oCA to ces 2
(a)
Date entered into CCs by (f)
Date oCA motified that document is in ces 1
s.
coxxEres 200090 i
i
- -.-.