ML20039A680
| ML20039A680 | |
| Person / Time | |
|---|---|
| Issue date: | 10/14/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Bradford P, Gilinsky V, Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML20039A679 | List: |
| References | |
| NUDOCS 8112210118 | |
| Download: ML20039A680 (5) | |
Text
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k UNITED STATES NUCLEAR REGULATORY COMMISSION
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WASWNGTON, D. C. 20555
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October 14, 1981 MEMORANDUM FOR:
Ch' airman Palladino.
Commissioner Gilinsky i,
Commissioner Bradford
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Commissioner Ahearne Commissioner Roberts FROMb b
f Leonard Bickwit, Jr.
General Counsel
SUBJECT:
LICENSING AUTHORITY OVER TEST AND EVALUATION FACILITIES FOR HIGH-LEVEL WASTE
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This is in response to Commissioner Bradford's request for our opinion on whether the NRC has licensing authority over a DOE test and evaluation (T&E) facility for high-level waste.
For the reasons discussed below, we believe that this presents an extremely omplex legal issue and that a. definitive answer cannot be given in the abstract but requires specific details regarding a proposed facility.
However, we have provided a discussion of the legal principles which should apply in making a determination of NRC
'licensi'ng authority and have analyzed the licensability of a hypothetical T&E facility with waste management functions as described in section 407 of S.
1662.
The Office of the Executive Legal Director concurs in this memorandum.
I.
Lecal Principles NRC licensing authority over DOE waste facilities is provided exclusively by Sections 202(3) and 202(4) of the Energy Reorgan-ination Act of 1974.
Section 202(3) provides NRC licensing and regulatory authority over DOE facilities "used primarily for the' receipt and storage of high-level radioactive wastes resulting from activities licensed under [the Atomic Energy) Act;"
.D and Section 202(4) provides NRC authority over DOE
~" Retrievable. Surface Storage Facilities and other facilities authorized for the express purpose of subse-quent long-term storage of high-level waste generated by IDOE), which are not used for, 'or are part of, l
research and development activities."
CONTACTS:
Martin G. Malsch, OGC, 4-1465 Sheldon L.
Trubatch, OGC, 4 3224 8112210118 811124 PDR COMMS NRCC CORRESPONDENCE PDR
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As will be explained more fully below, licensability of a DOE high level waste storage and/or disposal facility under sections 202(3) and 202(4) cepends on four factors:
the origin of the high-level waste; the storage duration; the interpretation and applica-tion of the word "primarily"; and the interpretation and application of the'words "used for, or are part of, research and development activites".
A.
Origin of the Rich Level Waste As can be seen from the statutory language, section 202(3) grants certain licensing authority only over high level waste "resulting from activities licensed under [the Atomic Energy] Act."
- This, in.effect, excludes military waste.
Thus a T&E facility for high level military waste would not be licensable under section 202(3).
However, a T&E facility for high level' waste in the form of spent commercial power reactor fuel, or in the form of commercial rbproc^essing waste, would be subject to section 202(3), depending on application of the other factors discussed below.
If the T&E facility is used for high level waste generated by DOE
. (or its predecessor agencies), then the facility may.be licensable under section 202(4), again depending on the application of the s
other factors.
It makes a difference whether section 202(3) or section 202(4) is applied because some factors are relevant to one section but not the other.
B.
The Storace Duration This factor is only relevant to section 202(4) --
i.e.,
if the T&E facility is for high level DOE originated waste.
Section 202(4), by its terms, applies only to " retrievable surface storage facilities" and "other facilities authorized for the express purpose of subsequent long term storage" (Emphasis added).
It does not appear that a T&E facility would be a surface storage fa'cility.
Whether a T&E facility would be " authorized for the express purpose of long term storage" would, of course, depend on
'the authorizing legislation and DOE's intentions.
The latter part y
of section 202(4) was construed in NRDC v. NRC, 606 F.2d 1261 (D.C.
Cir. 1979) as applying only to waste storage facilities that are in fact intended to be part of DOE's ultimate management program for long term storage or disposal.
Consequently, c T&E facility that is in fact intended to be only an interim location for high level wastes pending development of another ultimate storage or disposal site would not fall under section~202(4).
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3 C.
The Word "primarily" i
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. This factor is only relevant to section 202(3) -- i.e.,
if the T&E facility is'for high level waste resulting from a licensed
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activity.
The initial issue here is.whether "primarily? was included in the statutory language in order to_ exempt from licensing DOE facilities used equally or primarily for activities other than receipt and storage.(for example, solidification), bOE facilities used equally or primarily for receipt and storage of waste other than high level waste, DOE facilities used equally or primarily for receipt and storage of high level waste not result-ing from licensed activities, or all three.
There is no useful legislative history and therefore the plain meaning of the statute would control.
The plain meaning would apply "primarily" to i
modify all the remaining language in section 202(3) so as to exempt all three types of DOE facilities'.
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If we a~ssume, as seems reasonable based on current discussions regarding T&E facilities, that the T&E facility is used only for high level wastes, and further assume for purposes of discussion of section 202(3) that the T&E facility is used only for high 4
level wastes from licensed activities, then the residual question i
remains whether a T&E facility would be primarily for " receipt and s
storage" of these wastes or for some other purpose.
Section 202(4) contains an express licensing exemption for j
facilities "used for, or... part of research and development i
activities."
No such express exemption can 'be found in section
)
202(3).
General rules of statutory construction indicate that, absent evidence of contrary Congressional intent (and there is i
none),.it must be assumed that the failure to include a "research j
and development" exemption in section 202(3) was deliberate.
However, this deliberate choice of language could logically be 4
either because Congress believed that research and development j
facilities should be licensed under section 202(3), or because Congress believed that the word "primarily" effected a similar exemption and so no express exemption was necessary.
There is i
some indication in the legislative history that the latter consid-eration appli'ed.
In describing both sections 202(3) and 202(4) the Senate Report (S. Rep. No.93-980,"63rd Cong., 2d Sess.,
July 27, 1974) at 59-60 stated that "It is not the intent of the committee to require licensing of such storage facilities which are already in existence or of storage facilities which are necessary for the short term storage of radioactive materials incidental to [ DOE's) R&D activities The committee intends that new facilities now being planned for long term storage of commercial wastes.will meet the strict licensing standards of i
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[NRC). "
This ' language pretty clearly suggests that' short-term research and development activities were not intended to be licensable'under section 20,2(3).
Since there is no express exemption in section 202(3) for "short term," storage or."_research and development", it would be appropriate in light of this legis-lative history to read "primarily for receipt and storage" as distinguishing between passive receipt and storage (which would be' licensable) and active research and development relating to, short term receipt and. storage-(which would not be licensable).
In sum, we conclude -that a T&E facility for active research and development related to short term storage -- active in the sense of efforts beyond mere emplacement and monitoring of wastes such as would occur in a permanent storage facility -- would not be subject to section 202(3).
s D.
Research and Development As noted, section 202(4) by its terms does not apply to facilities which are "used for, or... part of, research and development activities."
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II.
The Hypothetical T&E Facility in S. 1662 S.
1662 would provide for at least one test and evaluation facility for the " purpose of developing the packaging, handling and emplace-ment technology for solidified high level radioactive waste and spent fuel frc'a civilian nuclear activities needed to further the demonstration of disposal of such waste and spent fuel."
127 Cong.
Rec.
S.
10443 (daily ed. Sept. 24, 1981).
The licensability of such a facility under existing law would be analyzed as follows:
First, it is not clear whether section 202(3) or section 202(4) would be the source of NRC licensing authority.
The facility would accept high level waste (as defined in the bill) and spent fu'el from only civilian nuclear activities.
However, not all civilian nuclear activities will necessarily result in high level waste or spent fuel resulting from activities licensed under the Atomic Energy Act.
For example, the solidified waste that DOE will produce at West Valley may not be considered as having resulted from licensed activities.
If a T&E facility were to be used primarily for West Valley waste, and that waste is determined not to result from licensed activities under the Atomic Energy Act, NRC authority would depend on section 202(4).
The T&E facility would not be-licensable under that provision because storage in a T&E facility is intended to be temporary.
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If a T&E facility is used primarily for waste resulting from activities licensed under the Act, then NRC would have licensing authority only under section 202(3).
Here the principal factor would be application of the' word "primarily".
As noted,,section 202(3) should not be applied to facilities used primarily for active research and development related to short term storage.
S. 1662 describes the T&E activities as including " developing the packaging, handling, and emplacement technology."
Moreover, the wastes would be fully retrievable.
This would probably qualif as active research and development beyond activities normally incident to a permanent storage facility.
However, the bill is fairly sketchy and more details would need to be examined before a definitive conclusion could be reached.
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