ML20043C422

Forwards to Governor R Mofford of State of Az Re Guidance on Meeting 1990 Milestone & Info Concerning Certification Provisions of Low Level Radwaste Policy Amend Act

ML20043C422
Person / Time
Issue date:	02/21/1989
From:	Kammerer C NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA)
To:	AFFILIATION NOT ASSIGNED
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ML20043C386	List: ML20043C385 ML20043C393 ML20043C405 ML20043C422 ML20043C424
References
FOIA-89-513 NUDOCS 9006050166
Download: ML20043C422 (1)

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UNITED STATES

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FEB g i 1968 Ib ALL AGREEMENT AND NON-AGREEMENT STATES 2 STATE LIAISON OFFICERS LOW-LEVEL WASTE COMPACT DISTRIBUTION n

' GOVERNOR'S CERTIFICATION u

x' Enclosed for your information is a letter dated February 10, 1989 to.the Honorable Rose Mofford, Governor of Arizona, from Robert Bernero, Director, Office of Nuclear Material Safety and Safeguards. This letter provides

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j guidance to the State on meeting the 1990 milestone and information.

concerning the Governor's Certification Provisions of the low-level

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t RadioactiveWastePolicyAmendretsAct(LLRWPAA).

' Identical letters were sent to the Governors of the other thirty-two (32)

States which are subject to the 1990 milestone of the LLRWPAA.

P' esse see the enclosed mailing list. The-remaining States are not subject to this milestone because they-are in comoacts with currently operating commercial low-level waste facilities.

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.If you have any questions, please contact Mrs. Cardelia H. Maupin at j,

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C lton K ere, Director y tate, local and indian Tribe Programs-7 Office of Governmental and Public Affairs

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UNITED STATES ir a NUCL EAP, REGULATORY COMMISSION R

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Honorable Rose Mofford c

Governor of Arizona State House Phoenix, Arizona 85007 e

Dear Governor Moffordi This letter is to provide you with guidance and other relevaat information to l

assist your State in meeting tm1990 milestone requiraments of the Low-Level 3

Radioactive Waste Policy Amendments Act (LLRWPAA) of 12 Section5(e)(1)(c)

-oftheActprovidestyomethodsofmeetingthismilestche:

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Submit a'c latelicenseapplicationforanew1}mr-levelradfoactive weste. disposal f 111ty to the U.S. Nuclear Regulatory Coumission (NRC) or the appropriate Agreement State agency; or n

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Provide a written certification to NRC by the Governor (or Chief Executive Officer, if applicable) that thecstate will be capable of providing for, and will provide for, storage, disposal or management of any low 'evel radioactive waste generated within the State and requiring disposal after December 31, 1992. The certification is to include a description of actions to be taken-to ensure that such capacity exists.

Section 5(e)(1)(F) of the Act also allows States,to meet the 1990 milestone through disposab agreements with sited Compacts.

States or Compacts which do not meet the milestone face loss of surcharge rebates from the U. S. Department l

of Enerny'(00E), as well as denial of access by the sited States to existing regional disposal facilities. Attachment' A provides additional information on i

the relevant sections of the Act.

e The Act assigns the responsibility for disposal of low-level radioactive waste to the States or Regional Compacts.

For tie 1990' milestone, States or Compacts must' demonstrate through the mechanisms described above that they will be capable of storing,' disposing or managing any low-level radioactive waste generated'within-the State and requiring disposal after December 31,'1992.

This danonstration sust inc1cde not only discrete Class A B, or C waste as defined in Title 10, code of Federal Regulations, Part 61, but also any Class A}.

B, or C waste which contains non-radioactive hazardous waste (i.e., mixed waste To assure that all wastes a.at covered in documentation for the 1990 milestone, States or Regional Compacts may submit multiple documents in cases where they

.are warranted. For example, if a Regional Compact does not plan to address mixed waste in its license opplication for a low-level waste disposal facility, a separate Governor's certification should be submitted by each member State to NRC detailing that State's plans for storing, disposing, or managing mixed wasu after 1992.

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At this time, we estimate that most States subject to the 1990 milestone requirements.will. file certifications. Any certification which facia 11y complies with the~ requirements of the Act will be forwarded to the Congress 4

and published in the Federal Register.

However, we have developed and are providing the guidance contained in Attachment B.to help States begin planning and preparation of certifications to meet this milestone of the Act. This guidance provides suggested format and contents'of a certification, specifies procedures for submittal of, certifications, and summarizes how NRC will handle the certifications it receives.

We* hope this information will assist yoe in your efforts. As a general rule, we are urging.all States planning to submit certifications to do so as early as-possible. Should you have. questions regarding the information contained here or should you wish to consult with us, our project manager for this effort is Mr. George Pangburn of the Division of Low-Level Waste Management and

"< Decommissioning. Mr. Pangburn can be reached at 301/492-0580.

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Wa look fonrard to working with you and your staff over the coming months.

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l Sincerely, w

Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards y

't Attachments:

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. A. Requirements of the Act

~ B. Guidance and Other Information l

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ATTACMENT A t

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.P REQUIREMENTS OF THE ACT Section5(e of the Low-Level Radioactive Waste Policy Amendments Act (P.L.99-240 sets forth the milestone requirements for continued access to s-Regional disposal facilities.

UnderSection5(e)(1)(C),StatesandCompacts must, by January-1,1990, either:

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Submit a complete license application to the U.S. Nuclear Regulatory Commission (NRC) or an Agreement State [Section 5(e)(1)(C)(1)]; or

"(i) a com ete application (as determined by the Nuclear latory Commission or the appropriate agency of an agreement State) shall be Gled for a license to operate a low level radioactive waste disposal s

facsity within each non sited compact region or within each non member State;or 2.

Provide to NRC a written certification by the Governor that the State will be capable of providing for, and will provide for -storage, disposal, or management of any low-level radioactive waste generated within the State and recuiring disposal after 1992

[Section5(e)(1)(C)(ii);.

"(ii) the Governor (or, for an State without a Gov-ernor, the chief executive offic rl of any State that is not a member of a compact region in compliance with clause (i), or has not complied with such clause by its own actions, shall provide a written certtficatio to the Nuclear rammiamina. that such State will be capable for, and will provide for, the storage, diapanal Or

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T_: of any lowlevel radioactive waste withis such State and ree ~

December 31.1993, and include a descri the actions that will be taken to ensure that capacity emissa, The Act directs NRC t,, transmit the certifications to Congress and publish them intheFederalRegister(Section5(e)(1)(E)].

"2 The Nuclear r!a==i=Eaa shall transmit -

any certification recei ph c to the g and publish any such the Federal Section 5(e)(1)(F) of the Act also allows States to meet the 1990 milestone by making. disposal agreements with sited compacts. States or Compacts which do not meet the milestone face loss of surcharge rebates from the U.S. Department of Energy (00E) as well as denial of access by the sited States to the Regional disposal facilities (Barnwell, Hanford, 'and Beatty).

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ATTACmENT B O

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t GUIDANCE AND OTHER INFORMATION RELEVANT TO THE GOVERNOR'S CERTIFICATION PROVISIONS OF THE LOW-LEVELRADI0ACTIVEWASTEPOLICYAMENDMENTSACT(LLRWPAA)0F1985 Introduction This document provides guidance and other information intended to assist States that are seeking to comply with the 1990 milestone of the LLRWPAA by filing Governors' certifications pursuant to Section S(e)(1)(C)(ii) of the Act. The U.S. Nuclear Regulatory Commission (NRC) is issuing this guidance in recognition of its rois, under the Act, to serve as recipient of the certifications, to transmit them to Congress, and to publish them in the Federal Register. NRC is not a party to the compliance determinations of the Department of Energy relative to surcharge rebates or the s~1ted States (South Carolina, Washington, and Nevada) relative to continued access to Regional disposal facilities. Any certification which facia 11y complies with the requirements of the Act will be forwarded to Congress and published in the Federal Register. However, NRC considers provision of this guidance to be responsive to the needs of the States and Regional Compacts.

This document is organized into three sections:

1.

Technical content of the certifications; 2.

Procedures for submittal of certifications to NRC; and 3.

What NRC will do with the certifications.

Technical Content of the Certifications The LLRWPAA requires that the certifications contain a statement of intent as well.as a description of actions that will be taken by each State.

The requirements of the statement of intent are fairly clear: 1.e., the Governor must certify that the St. ate will be capable of providing for, and will provide for, the storage, disposal or management of any low-level radioactive waste generated within the State and requiring disposal after December 31, 1992.

However, neither the Act nor the legislative history specifies the content of the required description of the actions' to be akan to ensure such capacity exists. NRC has provided preliminary technic. guidance on this subject, in response to a request from the Midwest Interstate Compact.

In addition, hRC disserinated this gui&nce to State Liaison Officers, Agreement and

.Nen-Agreement States and Compact Officials, soliciting their views and comments.

Having considered these comments, NRC believes that the description of actions should address the following points:

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An estimate of the volume and types of waste and who will generate it after 12/31/92.

2.

A description of the proposed storage, disposal or management actions to be taken with respect to any low-level radioactive waste generau.4 within the State and requiring disposal after 12/31/92, including low-level radioactive waste contaminated with non-radioactivehazardouswaste(i.e.,mixedwaste). Where the certification provides for continued storage of such waste by the generator, the certification shall set forth the actions to be taken by the State to secure all applicable permits and approvals, including any amendments that may be required in the generator's NRC (or Agreement State) license as well as comments, if any, of such generators on the feasibility and acceptability of on-site storage. -

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A statement that the proposed actions are within existing legal authorities and are consistent with NRC or Agreement State regulations and guidance.

4.

The logistics of the proposed action in teras of organizational responsibility, timing and scheduling.

Procedures for Submittal of Certifications to NRC Upon passags of the LLRWPAA, NRC recognized that it would be useful, if not necessary, to specify procedures for submitting certifications to meet the 1990 milestone of the Act. These procedures are specified in the following paragraphs:

1..

Format: The certification should contain the statements required by the Act. The Governor (or Chief Executive Officer, if appilcable) should sign and date the original certification.

2.

Copies: The State should send to NRC, along with the original signed-certification, nine complete official copies of the certification.

3.

Address: The State should submit the original certification and copies to the Director, Office of Nuclear Material Safety and Safeguards, ling should be done such that the ce,rtification is U.S. Nuclear Regulatory Cosaission Washington, D.C.

20555. Mai received by January 1, 1990.

4 Additional Copies: Although NRC is the designated recipient for the certifications under the LLRWPAA, States should also send' copies to the following parties, for their milestone compliance determinations:

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Mr. William F. Newberry U.S. Departsunt of Energy Low-Level Waste Program Manaaer DivisionofWasteTreatmentProjects(ME-24)

Office of Nuclear Energ Washington,-D.C.

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Mr. Heyward Shealy Chief Bureau of Radiological Health Department of Health and Environmental Control 2600 Bull-Street Columbia, SC '29211 c.

Ms. Elaine Carlin Low-Level Waste Management Frogram Department of Ecology Mail Stop PV-11 Olympia, WA : 98504 d.

Mr. Jerry Griepentrog Director, Department of Human Resources 505 East King Street Room 600 Carson City,.MV 89710 What NRC will do with the certifications The Act directs that NRC serve as a location for submittal of certifications; transmit them to Congress; and publish them in the Federal Register. We

believe that NRC should not take any role which could Interfere with the 1990 milestone compliance determinations of DOE and the sited States.

In the case of 00E, these determinations _and the consequent surcharge rebates must, by law, be completed within130 days of the applicable milestone date. However, we also believe that NRC's broad mission for protecting public health and safety under the Atomic Energy Act, and our Five-Year Plan objective of providing active

leadership may cell for a broader role. Consequently, NRC will undertake a two-phase approach for the processing of certifications, as outlined in the

~following paragraphs:

Phase 1--Receipt. Transmittal _and Publication Each certification-that NRC receives will be checked to assure that the -

Governor of the respective state has signed and dated it. We will then transmit each such certification to both houses of Congress as wel1~ as to the Federal Register for publication. These actions will fulfill NRC's statutory obligation.

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4 Copies of the transmittals to Congress will also be sent to DOE and the sited States for their compliance determinations. MRC will not review the certifications at this time, but will respond to Congressional inquiries on a case-by-case basis.

Phase 2--Content Review Upon completion of Phase 1, if the Governor re. quests and resources pennit, NRC will conduct a review of any technical or implementation issuec associated with the program described in that State's certification. This review is not intended to influence-any subsequent NRC or Agreement State determination as to the licenseability of planned facilities. Rather NRC believes this review and cosmunication can be useful to the States in identifying potential problems at an early time as they proceed to meet the mandates of the LLRWPAA.

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ADDP.ESS LIST

' Honorable Rose Hofford Governor of Arizona State House Phoenix, Arizona 85007 (602)255-4331 Honorable Bill Clinton Governor of Arkansas State Capitol Little Rock, Arkansas 72201 (501)371-2345 Honorable George Deukrejian Governor of California State Capitol Sacramento, California 95814 (916) 445-2841 -

Honorable William A. O'Neill Governor of Connecticut State Capitol Hartford, Connecticut -06115 (203)566-4840 Honorable Michael N. Castle

. Governor of Delawa e Legis1stive Hall Dover, Delaware 19901 (302)736-4101 Honorable Janes R. Thompson Governor of Illinois State House Springfield, Illinois 62706 (217)782-6832 Honorable Evan Bayh, 111 Governor of Indiana State House Indianapolis, Indiane 46204 (317)232-4567 s

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2 Honorable Terry Branstad Governor of Iowa State Cepitol Des Moines, Iowa 50319 (515)281-5211 Honorable John Michael Hayden Governor of Kansas State Capitol Topeka, Kansas 66612 (913)296-E32 Honorable Wallace Wilkirsson Governor of Kentucky State Capitol Frankfort, Kentucky 40601 (502)564-2611 Honorable Charles E. ("Budoy") Roemer Governor of Louisiana State Capitol n

Baton Rouge, Lcuisiana 70804

-(504)342-7015 Honorable John R. McKernan, Jr.

Governor of Maine

' State House Augusta, Maine 04333 (207)289-3531 Honorable William Donald Schaefer Governor of Maryland-State House Annapolis, Maryland 21404 (301)974-3901 Honorable Michael S. bukakis Governor of Massachusetts State House Boston, Massachusetts 02133 (617)727-9173 Honorable James J. Blanchard Governor of Michigan State Capitol Lansing, Michigan 48909 (517)373-1080

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3 Honorab'e Rudy G. Perpich Governor of Minnesota State Capitol St. Paul, Minnesota 55155

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(612)296-3391 Honorable John Ashcroft Governor of Missouri State Capitol Jefferson City, Missouri 65101 (314)751-3222 Honorable _Kay A. Orr Governor of Nebraska State Capitol Lincoln, Nebraska 68509 (402)471-?244 Honorable Judd Gregg Governor of Hew Hampshire State Hcuse Concord, New Hampshire 03301

-(603)271-2121 Honorable Thomas H. Kean Governor of New Jersey-State House Trenton, New Jersey 08625 (609)E292-6000-Honorable Mario M. Cuorm m

Governor of !!ew York State Capitol r

Alban 12224

-(518)y, New York 474-7516 q

Honorable George Sinner Governor of North Dakota State Capitol Bismarck, !! orth Dakota 58505 (701)224-2200 Henorable Richard F. Celeste Governor of Ohio-State House Columbus, Ohio 43215 (614)466-3555

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qw a-Honorable Henry Bellmon Governor of Oklahoma l

State Capitol R:',

Oklahoma City, Oklahoma 73105 g,

(405) 521-2342

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Honorable Robert P. Casey Governor of Pennsylvania State Capitol Harrisburg, Pennsylvania 17120

. (717)787-2500

- Honorable Edward D. DiPrete Governor of Rhode Island L

State House Providence, Rhode Island 02903 (401)277-2080 Honorable George S. Mickelson Governor of South Dakota-State Capitol Pierre, South Dakota 57501 (605) 773-3212 l-Honorable William P. Clements, Jr.

Governor of Texas State Capitol Austin, Texas.78711 (512)463-2000 Honorable Hadeleine M..Kunin Governcr of Vermont o'

State House Montpelier, Vermont 05602 (802) 328-3333 l

Honorable Gaston Caperton Governor of West Virginia State Capitol Charleston, West Virginia 25305

,304)348-2000 bnorable Tonuny Thor.pson i =,

byernor of Wisconsin L

State Capitol Madison, Wisconsin 53702 l ',

(608)266-2785 L

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5 Honorable Raphael Hernandez-Colon Governor of Puerto Rico State Capitol La Fortaleza San Juan, Puerto Rico 00901 (809)721-7000 Honorable Marion Barry, Jr..

- 14ayor of the District of Columbia-1350 Pennsylvania Avenue, N.W.

Suite 520 Washington, DC 20004 5

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UNITED STATES I

NUCLEAR REGULATORY COMMISSION WASHING TON. D. C. 20666 AM 91989 STATE LIAISON OFFICERS LOW-LEVEL. WASTE COMPACT DISTRIBUTION ALL AGREEMENT AND NON-AGREERNT STATES GOVERNOR'S CERTIFICATION On February 10, 1989, NRC sent identical letters (see Enclosure 1) to the 33 Governors of States subject to the 1990 milestone of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA).

These letters provided guidance and other relevant information to assist States in meeting the Governor's certification requirements of the 1990 milestone.

Since that time, we have-received several requests for intr.aretation and clarification of specific language contained in the guidan n The purpose of this letter is to provide that interpretation and clarifical ?n.

In Attachment B of the cited letter, under the heading " Technical Content of the Certifications," NRC stated its belief that "Where the certification provides for cor,tinued storage of such waste by the generator, the cartification shall set forth the actions to be taken by the State to secure all applicable permits and apprcvals including any amendments that may be required in the generator's NRC (or Agreement State) license...." The Midwest Interstate Compact in a letter of April 19, 1989 has indicated that compliance with this language may not be possiole since (1) generators will be storing the-waste and must go about securing license amendments and any other necessary permits or approvals themselves; and (2) in most cases, States lack the authority to secure, or require generators to secure, such amendments, permits and approvals.

NRC recognizes the concern expressed by the Midwest Compact as well as other States regarding this language. Our intent was not to require States or Governors to undertake an action which is beyond their jurisdiction or authority, h ther, we are looking for the States to describe in their certifications that if they are relying on generators to store waste, what State actions have been or will be taken to assess the feasibility and acceptability of such storage as it relates to State obligations under the LLRWPAA.

For example, the State could show that it had:

(1) inforr.ed generators of its plans to rely on them for storage after 1992; (2) requested the generators to determine if license amendments, permits or approvals were necessary and, if so, that the generators were willing to apply for them; and (3) solicited comments from generators on the State's reliance en storage after December 31, 1992.

A second issue posed to us has to do with the filing of a complete application for a low-level radioactive waste disposal facility as a way of meeting the 1990 milestone.

In our guidance to the Governors, we stated that States or RegionM Compact.s must assure that all wastes are covered in documentation for that mi;estone, including mixed wastes.

Some States have indicated concern that, although they plan to develop a license application for disposal of all LLW in their Compact, including mixed waste, the absence of a RCRA mixed waste authorized permitting agency in their State could restrict their ability to G)

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file a complete application. In Section 5 (e)(1)(C)(1), the LLRWPAA assigns the determination of a complete application for the 1990 milestone to NRC or the appropriate radiation protection agency of an Agreement State.

Consequently, the NRC or agreement state agency has authority to make a completeness determination on the entire application under the LLRWPAA.

Therefore, the absence of a RCRA permitting agency does not restrict the i

ability to file a complete application.

However, the application should describe to steps that will be taken to manage and regulate all components of low-level waste, including mixed waste.

If a-particular state is seeking,

.but at the time of the application has not yet obtained, mixed waste authority, the application should outlint the process and timetable, to the extent practicable, for obtaining such authority. The agency, in determining application ccmpleteness, should be able to conclude that: (1) the applicant understands the process necessary to secure appropriate approvals and (2) that the plan identified in the a' plication appears reasonable, timely, and sufficient to manage. waste t1at will require disposal after 1992.

Finally, some compacts have expressed their intention to submit joint certifications covering all-their member States and signed by all the Governors of those States. While we continue to believe that a joint certification meets the intent of the Act, we stress that each separate State's certification and plans for managing its waste after 1992 should be discrete and clearly defined from those of the otheir States.

We hope that the clarification contained in the above paragraphs is useful to you.

If you have further questions, please contact Paul Lohaus, Chief, Operations Branch, Division of Low-Level Waste Management and Decommissioning, at(301)492-0553.

Sincerely, l

S Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards

(s ENCLOSURE 1 p,. g \\

UNITED STATES g,-

NUCLEAR REGULATORY COMMISSICw "o

WASNIS,07088, D. C. 20088 e

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e Honorable Rose Mofford Governor of Arizona State House Phoenix, Arizona 85007

Dear Governor Hofford:

Y This'1etter is to provide you with guidance and other relevant information to

'dssist your State in meeting the 1990 milestone requirements of the Low-Level Raoioactive Waste Policy Amendments Act (LLRWPAA) of 1985.

Section5(e)(1)(C)?

of the Act provides.two methods of meeting this milestone:

1.

Submit a complete license application for a new low-level radioactive.

waste dispsal facility to the U.S. Nuclear Regulatory Cosaission (NRC) or-the e9propriate Agreement State agency; or

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" Provide a written certification to NRC by the Governor (or Chief Executive Cfitur, if applicable) that the State will be capable of prov Ming for, as.d will provide for, storage, disposal or management of any low-level radioactive waste generated within the State and requiring disposal af ter December 31, 1992. The certification is to include a description of actions to be taken to ensure that such capacity exists.

Seckion 5(e)(1)(F) of the Act also allows States to meet the 1990 milestone through disposal agreements with sited Compacts.

States or Compacts which do not meet the milestone face loss of surcharge rebates from the U. S. Department cf Energy (DOE), as well as denial of access by the sited States to-existing

. regional disposal facilities. Attachment A provides additional information on

the relevant sections of the Act.

The Act assigns,the responsibility far disposal of low-level radioactive waste to the States or Regional Compacts. <For the 1990 milestone, States or Compacts must demonstrate through the mechanisms described above that they will be capable of storing, disposing or managing any low-level radioactive waste teneratad within tha State and requiring disposal after December 31, 1992.

"his demonstratW: sust include not only discrete Class A, 8, or C waste as defined in Title 10 Code of Federal Regu1&tions, Part 61, but also any Class A}.

B, or C waste which contains non-radioactive hazardous waste (i.e., mixed waste To assure that all wastes are covered in docusentation for the 1990 milestone, States or Regional Compacts may submit multiple documents in cases where they are warranted.- Fce example, if a Regicnal Compact does not plan to address mixed waste in its license application for a low-level waste disposal facility, a separate Governor's certification should be submitted by each member State to NRC detailing that State's plans for storing, disposing, or managing mixed waste after 1992.

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'k At this* time, we estimate that most States subject to the 1990 milestone requirements will file certificaticns. Any certification which facially complies with the requirements of the Act will be forwarded to the Congress

,,and published in the Federal Resister.

However, we have developed and are

' providing the guidance contained in Attachment B to help States begin planning and preparation of certifications to meet this s11estone of the Act. This 3

guidance provides suggested format and contents of a certification, specifies procedures for submittal of certifications, and summarizes how NRC will handle the certifications it receives.

a We hope this information will assist you in your efforts. As a general rule, we are urging all States planninti to submit certifications to do so as early as possible.

Should yen have quest'ons regarding the information contained here L

or should you wish to' consult with us our project manager for this effort is Mr. George Pangburn ofathe Division of Low-Level Waste Management and Decossissioning. Mr. Pangburn can be reached at 301/492-0580.

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We look forward to working with you and your staff over the coming months.

Sincerely, e

Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards 4

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Attachments:

l A. Requirements of the Act B. Guidance and Other Information f

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REQUIREMENTS OF THE ACT i

Section 5 (e) of the low-Level Radioactive Waste Policy Amendments Act (P,t.99-240) sets forth the milestone requirements for continued access to j

e Regional disposal. facilities.

Under Section 5(e)(1)(C), States and Compacts must, by January 1,1990, either:

1.

Submit a complete license application to the U.S. Nuclear R Cosmission (NRC) or an Agreement State [Section 5(e)(1)(C)(gulatory-1)] lor "fD a complete application faa determined by the Nuclear Regulatory Commission or the appropriate agency of an agreement State) shall be filed for a license to operate a low level radioactive waste disposal facility witain each nongitad compact region or withia.

each non member State;or 1

2.

Provide to NRC a written certification by the Governor that the State will be capable of providing for, and will provide for, storage, disposal, or management of any low-level radioactive waste generated within the State and re<uiring disposal after 1992

[Section5(e)(1)(C)(11):.

"(11) the Governor u, for any Stase without a Gov.

ernor, the chief executive omcor) of any S ate that is t

not a member of a compact region in compliance wi A l

clause (D or has not compiled with such clause by ite own actions, shall provule a written certiAcation to the Nuclear Regulatory Conualesien, that such State will be espable the rs:ctiv..e.t.

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Oneomber 31.1998, and include of the actions thes will be takaa to ensure l

that especity enasta, The Act directs NRC to transait the certifications to Congress and publish them L

in the Federal Register [Section 5(e)(1)(E)].

"@ h Nueber th=h shall transmit any certineation received i

g and publish any such certM (O to the l

the Federal l

Section5(e)(1)(F)oftheActalsoallowsStatestomeetthe1990milestoneby making disposal agreements with sited compacts. States or Compacts which do not meet the milestone face loss of surcharge rebates from the U.S. Department of l

Energy (DOE) as well as denial of access by the sited States to the Regional l

disposal facilities (Barnwell, Hanford, 'and Beatty).

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GUIDANCE AND OTHER INFORMATION RELEVANT TO THE GOVERNOR'S CERTIFICATION PROVISIONS OF THE LOW-LEVEL RADI0 ACTIVE WASTE POLICY AMENDMENTS ACT (LLRWPAA) 0F 1985 Introduction This. document provides guidance and other information intended to assist States that are seeking to comply with the 1990 milestone of the LLRWPAA by filing Governors' certifications pursuant to Section 5(e)(1)(C)(ii) of the Act. The U.S. Nuclear Regulatory Cornission (NRC) is issuing this guidance in recognition of its role, under the Act, to serve as recipient of the certifications, to transmit them to Congress, and to publish them in the Federal Register. NRC is not a party to the compliance determinations of the Department of Energy relative to surcharge rebates or the sited States (South Carolina, Washington, and Nevada) relative to continued access to Regional disposal facilities. Any certif1 cation which facia 11y complies with the requirements of the Act will be fonrarded to Congress and published in the Federal Register.

However, NRC considers provision of this guidance to be responsive to the needs of the States and Regional Compacts.

This document is organized into three sections:

1.

. Technical content of the certifications:

2.

Procedures for submittal of certifications to NRC; and 3.

What NRC will do with the certifications.

Technical Content of the certifications The LLRWPAA requires that the certifications contain a statement of intent as well as a description of actions that will be taken by each State. The requirements of the statement of intent are fairly clear: 1.e., the Governor aust certify that the State will be capable of providing for, and will provide for, the storafie, disposal or management of any low-level radioactive waste generated with"n the State and requiring disposal af ter December 31, 1992.

However, neither the Act nor the leilislative history specifies the content of the required description of the acttons to be taken to ensure such capacity exists. NRC has provided preliminary technical guidance on this subject, in response to a request from the Midwest Interstate Compact.

In addition, hRC disseminated this guidance to State Liaison Officers, Agreement and Non-Agreement States and Compact Officials, soliciting their views and comments.

Having considered these comments NRC believes that the description of actions should address the following points:

4

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1.

. An estimate of the volume and types of waste and who will L

generate it after 12/31/92, 2.

A description of the proposed storage, disposal or management actions to be taken with respect to any low-level radioactive waste generated within the State and requiring disposal after 12/31/92, including low-level radioactive waste contaminated with E

non-radioactivehazardouswaste(i.e.,mixedwaste).

Where the L

certification provides for continued storage of such waste by the b

generator, the certification shall set forth the actions to be taken by the State to secure all applicable permits and approvals, including. any amendments that may be required in the generator's MRC (or Agreement State) license as well as comments, if any, of such generators on the feasibility and acceptability of on-site storage.

3.

A statement that the proposed actions are within existing legal authorities and are consistent with NRC or Agreement State lv regulations and guidance.

L

4..

The logistics of the proposed action in terms of organizational responsibility, timing and scheduling.

Procedures-for Subaittal of Certifications to NRC Upon passage of the LLRWPAA, NRC recognized that it would be useful, if not necessary, to specify procedures for submitting certifications to meet the 1990 milestone of the Act.

These procedures are specified in the following paragraphs:

1.

Format:

The certification should contain the statements required by the Act.

The Governor (or Chief Executive Officer, if applicable) should sign and date the original certification.

2.

Copies: The State should send to NRC, along with the original signed certification, nine complete official copies of the certification.

3.

Address: The State should submit the original certification and copies to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Cosmission, Washington, D.C.

20556.

Mailing should be done such that the certification is received by January 1 - 1990.

4 Additional Copies: Although NRC is the designated recipient for the certifications under the LLRWPAA, States should also send copies to the following parties, for their milestone compliance detensinations:

k L

.S.

a.

Mr. William F. Newberry U.S. Department of Energy Low-Level Waste Program Manager Division of Weste Treatment Projects (NE-24)

Office of Nuclear Energ Washington, D.C.

20545 b.

Mr. Heyward Shealy Chief, Bureau of Radiological Health Department of Health and Environmental Control 2600 Bull Street Colustia, SC 29211 c.

Ms. Elaine Carlin Low-level Waste Management Prograa Department of Ecology Mail Stop PV-11 Olympia, WA 98504 d.

Mr. Jerry Griepentrog Director, Department of Human Resources 505 East King Street l

Room 600 Carson City, NV 89710 l

l-What NRC will do with the certifications The Act directs that NRC serve as a location for submittal of certifications; transmit them to Congress; and publish them in the Federal Register. We believe that NRC should not take any role which could Interfere with the 1990 o

milestone compliance deteminations of DOE and the sited States.

In the case of D0E,leted within 30 days of the applicable silestone date.these determinations be comp However, we also l

h believe that NRC's broad mission for protecting public health and safety under the Atomic Energy Act, and our Five-Year Plan objective of providing active leadership may call for a broader role.

Consequently, NRC will undertake a two-phase approach for the processing of certifications, as outlined in the L

following paragraphs:

L Phase 1--Receipt, Transmittal and Publication Each certification that NRC receives will be checked to assure that the '

Governor of the respective state has signed and dated it. We will then transmit each such certification to both houses of Congress as well as to the Federal Register for publication. These actions will fulfill NRC's statutory obligation.

l=

l

4 Copies of the transmittals to Congress will also be sent to DOE and the sited States for their compliance determinations.

NRC will not review the certifications at this time, but will respond to Congressional inquiries on a case-by-case basis.

i Phase 2--Content Review Upon completion of Phase I, if the Governor requests and resources permit, NRC will conduct a review of any technical or implementation issues associated with the program described in that State's certification.

This review is not intended to influence any subsequent NRC or Agreement State determination as to the licenseability of planned facilities.

Rather, NRC believes this review and corsnunication can be useful to the States in identifying potential problems at an early time as they proceed to meet the mandates of the LLRWPAA.

e t-a m-

L-Midwest Interstate Low Level Radioactive Waste Commission Room 588

• 350 N. Robert Street

• St. Paul, MN 55101 * (612) 293 0126 l

L April 19, 1989

(

l Mr. Paul Lohaus Chief, Operations Branch Division of Low-Level Waste Management and Decommissioning

)

Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission Washington, D.C.

20555

Dear Mr. Lohaus:

l On February 22, 1989, the Nuclear Regulatory Commission (NRC) published a notice of guidance in the Federal Register (54:34, p.

7616) on Governor's Certifications for the 1990 milestone.

This guidance included a listing of actions that should be described as part of the technical content of the certifications (p. 7618).

Prior to publication of the guidance in the Federal Register, NRC staff frequently consulted with the Compacts and States regarding the proposed guidance.

Upon publication, however, new language had been added to the listing of actions referenced above.

The language, added to point #2 of the listing, requires that certifications providing for continued storage by generators, " set forth the actions I

to be taken by the State to secure all applicable permits and 1

approvals, including any amendments that may be required in the generator's NRC (or Agreement State) license as well as comments, if any, of such generators on the feasibility and acceptability of on-site storage."

State compliance with this new guidance language does not appear possible, based on the following:

1) The generators will store the waste.

Therefore, the necessary permits, approvals, and license amendments must be secured by 1

the appropriate parties with title, possession, and liability for the waste and responsibility for the storage actions, i.e.,

the licensees, not the State.

2) States have no~1egal authority to secure such permits, approvals, or license amendments.

With the possible exception of Agreement States or states with their own supplementary programs, they also lack any authority to require licensees to secure permits, approvals, or license amendments.

The Midwest Compact will require that generators store their waste.

after January 1, 1993.

The member states intend to do everything B904240119 890419 NMSS SUBJ p'

409.52 CDC Indiana lowa Michigan Minnesota Missouri Ohlo Wisconsin

2 Mr. Paul Lohaus April 19, 1989 Page Two possible to ensure that generators proceed with the necessary actions to ensure on-site storage capability.

The feasibility and acceptability of on-site storage, the legal authorities, and the logistics will be addressed in the certifications.

cannot, however, The states license amendments for the generators. secure the applicable permits, approvals, and Therefore, the Midwest Compact Commission requests clarification of the NRC's position on this aspect of the guidance and some assurance 1

that the NRC will not find certifications insufficient if they do not comply with the new language.

Although the NRC does not currently plan to review the content of the certifications, such review could occur in the future at the request of Congress.

If you have any Commission's Executive Director. questions regarding this matter, please cont Sincerely, lw' i

Barbara Lindsey S ms Chair l

cc:

Midwest Compact States LLW Forum Sited States DOE l

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