ML20044A133

Responds to on Questions Re NRC Position on House Bill 0717.Enrolled Bill Would Vest Portion of State Regulatory Responsibility in County Boards & Would Appear to Be Consistent W/Regulatory Program.Related Info Encl

ML20044A133
Person / Time
Issue date:	09/25/1987
From:	Nussbaumer D NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA)
To:	Joyce J ILLINOIS, STATE OF
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ML20044A120	List: ML20044A133
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NUDOCS 9006280109
Download: ML20044A133 (48)

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UNITED ST Af ts ia* *84w

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• t NUCLE AR REGULATORY COMMisslON W ASHINGTON. 0 C. 20555 spj)'j Vt o

%, *v September 25, 1987 1,

Senator Jerome J. Joyce Illinois State Senate 329' State House Springfield Illinois 62706

Dear Senator. Joyce:

1 We are pleased to respond to your September 3,1987 letter in which you raised questions concerning the NRC's position on House Bill 0717. We had provided our connents on this bill to Ms. Betsy Salus, Staff Attorney for the Illinois 1

17, 1987, a copy of which Department of Nuclear Safety, by letter dated August is enclosed.

In regard to the specific questions you raised, our responses are as follows:

The enrolled bill would vest a portion of State regulatory responsibility 1.

in county boards and the governing bodies of municipalities and thus would appear to be inconsistent with the regulatory program which Illinois submitted in its application to become an Agreement State and on which the Comission relied in making its detemination to enter into a section In addition, the bill could also have a 274b Agreement with Illinois.

significant impact upon the ability of the Illinois Department of Nuclear Safety, which the Agreement recognizes as the responsible State regulatory i

t agency, to exercise its responsibility for licensing and regulating a low-level radioactive waste treatment, storage and disposal facility in a manner which will-provide adequate protection for the public health and safety in accordance with the intent of the Low-Level. Radioactive Waste Policy Act and Criterion 9(b) of the Comission's Statement of Policy on

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" Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and. Assumption Thereof by States Through Agreement" which place licensing and regulatory responsibility for land disposal of low-level radioactive waste directly on the State.

Qur interpIntation of the bill, however, is that no low-level radioactive waste treats &t or L

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disposal activity could take place without a license having been issued Therefore, at this time, by the Illinois Department of Nuclear Safety.

it is our judgement that if the bill is enacted as enrolled, it would not affect the Agreement State status of the State of Illinois.

The Comission's authority to affect Agreement State statas is provided 2.

by section 274j of the Atomic Energy Act of 1954, as amr.nded (42 U.S.C.

2021(j)).

Under section 274j the Comission is author'. zed, upon its own i

9006280109 900615 PDR STPRG ESGI Attachment I w

l Septemoe r 25, 1987 Senator Jerome J. Joyce initiative after reasonable notice and opportunity for hearing to the State, to teminate or suspend all or part of its ?greement with the State and reassert the licensing and regulatory authority vested in it under the Atomic Energy Act if the Comission finds that such temination or suspension is required to protect the public health and safety or the State has not complied with one or more of the requirements of section 274 of the Act.

Our concerns regarding HB 0717 are provided in item (1) above and in our 3.

August 17, 1987 letter to Ms. Salus.

We have no alternative language to suggest, but would be pleased to 4.

review and coment on any revisions that may be made to HR 0717.

Sincerely, Y

Ms<<

//W Donald A. Nussbaumer, Assistant Director j

for State Agreements Program State, Local and Indian Tribe Programs Office of Governmental and Public Affairs

Enclosure:

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August 17, 1987 letter to Ms. Salus I

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JOINT COMAUTTEE ON ADhUNISTRATTVE RLILES.

ILLINOIS GENERAL, ASSEMBLY f

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L JOINT COMMITTEE ON ADMINISTRATIVE RULES I

CERTIFICATION'OF NO OBJECTION TO PROPOSED RULEMAKING 1

1' This is to certify that the Joint Committee on Administrative Rules, at its y

December 14, 1990 meeting, considered Licensing Requirements for. Source l

Material Milling Facilities; 32 111. Adm. - Code 332, proposed by the Department of Nuclear Safety and published in the April 28, 1989 issue of the Illinois Register.

After consideration, and based upon the agreements -for.

modification of the rulemaking made by the agency and attached ' to this document, it was determined by the Joint Committee that no objection will be 4

issued to the above-mentioned rulemaking.

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December 14. 1990

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Executivg(Johnson' Directo-1

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JOINT COMMITTEE ON ADMINISTRATIVE RLILES c.x ILLINOIS CENTRAL A00;EM!LY co.cHaiRMcNc

. HovSt McMetRS-l SEN. EMIL JONES. JR.

LARRY W. HICK $

REP. JOHN W. COUNTRYMAN -

ELLIS S. LtVIN 4*N THOMAS J. MCCRACKEN. A vlCE CHAIRMAN-

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SEC RET ARY THOMAS A. DUNN REP. MONROC L. FLINN DORIS C. KARPitL -

WILLIAM L. o'OANitL EntCUTivt DimtCTOR)

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• SAGE" WOOOYARD BRUCE A. JOHNSON SPRINGFitLD. ILLINOIS 62701 217/788 2254 JOINT COMMITTEE ON ADMINISTRATIVE RULES REVIEW OF EXISTING RULES CERTIFICATION OF OBJECTION The Joint Committee on Administrative Rules hereby certifies that, pursuant

.to Sections 7.04 and.7,07 of the Illinois Administrative Procedure Act, as amended, the Joint Committee on Administrative Rules objected on January.10, i

1990, to-the Depa rtment of Nuclear Safety's rules entitled Licensing Requirements for Source Material Milling Facilities; 32 lil. Adm. Code 332.

A statement of specific objection of the Joint Committee accompanies this certification.

Please take notice that failure to respond to this objection within 90 days of the receipt of this Certification of Objection, constitutes a refusal to remedy the objection.

Certified: July 28,1989 Senator Emil Jones, Jr.

Representative Countryman Co-C hai rmen,.

Joint Committee on Administrative Ruh,

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By(.

Brty:e A. John on:

Executive Dir tor Subscribed and sworn to before me this 10th day of January,1990

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JOINT COMMITTEE-ON ADMINISTRATIVE RULES lLLINOIS GENERAL ASSEMBLY FTATEMENT OF OBJECTION TO EXISTING RULES DEPARTMENT OF NUCLEAR SAFETY Headina'of Part:

Licensing Requirements for Source Material Milling Facilities Code Citation:

32 - Ill. Adm.. Code 332 Section Numbers:

332.20 332.40 332.60 332.100 332.110 332.130 332.180 332.200 332.210 332.220 332.230 332.240 332.250 332.290 Date Orlainally Published in Illinois Reciater:

April 28,1989 13 Ill, Reg. ~ 5874 At its meeting on January 10, 1990, the Joint Committee objected to the above existing ' rulemaking.

Failure of the Department to respond.within-90 days of the receipt of this Statement of Objection shall constitute. a-refusal to amend or repeal this rule,

'The specific objections are as follows:

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Objection l '

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The Joint Committee objects to Section 332.20 of the Department of I

Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities" (32 Ill.

Adm.

Code 332),

because, the Department has failed to provide cross refersaces, clarify, or provide standards governing how the Department will make key _ f actual E

determinations serving as _the basis - for words defined by the i

Department, notably:

" active maintenance", "acquifer", " buffer zone",

" commencement of construction", " compliance period", " closure", " closure plan", " disposal area", " existing portion", " licensed site", and " point of compliance", in violation of Section 4.02 of the lilinois Administrative Procedure Act.

The Department of Nuclear Safety proposed a comprehensive regulatory scheme for the licensing of radioactive source material milling facilities.

The rules' objective la to regulate milling of uranium or thorium and storage and disposal of byproduct material.

The rules define key terms, require a license for such activities and prescribe license application

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION 4

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 2) s q

l procedures - and standards for evaluation of license applications.

Conditions of licensure are prescribed, including ~ provisions for closure i

of a milling facility site and - termination of a license.

Radiation protection standards are stated for the general population, trespassers and employees.. Technical requirements for byproduct material disposal sites are included, embracing such topics as groundwater protection and control of radiation hazards.

The - Department is proposing these rules in order to obtain " agreement state" status with the Nuclear Regulatory Commission (NRC) whereby the State will henceforth assume jurisdiction over sou rce material milling facilities f rom the NRC. This =. is accomplished pursuant to 42 U.S.C.

2021(b).

The NRC, prior to entering into any such agreement, must make4 a finding that the State regulatory program-is in-compliance with 42 USC 2021(o) and is compatible with the NRC's regulatory program.

Subsection (o) of 42 U.S.C. 2021 requires a State to pursue rulemaking with public notice and comment procedures and that license applicants prepare a study of a proposed license site and facility assessing-environmental effects.

Section 332.20 : of the Department's rulemaking defines terms used throughout the rulemakin more particularly:

" active maintenance",

"acquifer", " buffer - zone",g," commencement of construction", " compliance period", " closure", " closure plan", " disposal area", " existing, portion",

" licensed site", and " point of compliance",

in the course of the Joint Committee's review of this rulemaking, the Department was asked to 4

provide standards, cross-references or clarify how it would reach a finding that various elements of the above-quoted terms had been met

[ questions 2-11 and 13 of the Joint Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to.the Department on December 12,1989).

In all instances, the Department declined to do.

stating that its revision of the text of the various defined terms so, would jeopardize approval by the NRC of the Department's rules and subsequent -obtainment by the Department of " agreement state" status with the NRC granting it jurisdiction to regulate source material milling facilities.

The Department stated it might, in response to an objection or recommendation from the Joint Committee, provide some requested cross-references to other provisions of this Part, but generally declined to provide text clarifying various phrases or standards governing how it would make the factual determinations called for by the various terms which are defined.

The Department refused, however, to provide even cross-references to other provis(ons of this Part at this juncture.

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JOINT COMMITTEE ON ADMINISTRATIVE RULES h

ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION L

i DEPARTMENT OF NUCLEAR SAFETY-(Continued Page 3) l Illustrations of the Depa rtment's refusal to address Joint Committee inquiries follow:

1)

Section 332.20 defines the term "acquifer" and states any zone created by uranium recovery operations is not to be considered an i

acquifer unless the zone is or potentially - is:

hydraulically interconnected to. a natural acquifer, capable of discharge or reasonably accessible because of migration beyond the vertical-projection of the boundary of the land.

The Department refused to prcvide standards governing how it will determine that.a zone potentially meets the elements stated

(" hydraulically interconnected",

" reasonably accessible" and

" capable of discha rge").

'2)

Section. 332.20's definition of " compliance period" states such a period is to end when the owner's license is terminated and the disposal site is transferred to' a governmental agency.

The Department refused -to provide cross-references in its rulemaking :to the applicable Administrative Code provision ~s outlining license termination and site transfer.

3)

Section 332.20's Agency Note for " disposal area" states such a site

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includes only the surface area of the land "immediately underlain by byproduct, material."

The Department could not specify what it means by the phrase "immediately underlain by byproduct material",.

stating such a determination. was on a

" case-by-case" basis, and that it could not provide standards governing how each " case" would be evaluated.

Section 4.02 of the Illinois Administrative Procedure Act (lAPA) (Ill.

Rev.' Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an ' agency shall include the standards by which the agency shall exercise the power.

Such -standards shall be. stated as precisely and clearly as practicable under the-conditions, to inform fully those persons affected. "

The Department's rulemaking fails to satisfy this standard.

Parties are instructed, for example, that a disposal site is to include only the land "immediately underlain by byproduct material" but fails to state the parameters of that volume of land or the standards the Department will apply to reach such a finding, s

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JOINT COMMITTEE ON ADMINISTRATIVE RULES-ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY j

(Continued Page 4) l The Department's argument that the rules must be accepted as proposed

.or the NRC will not approve the Department's rules and-permit the

~ Department to obtain agreement state status has been made before, and was not accepted by the Joint Committee, in 1986 the Department proposed a series of rulemakings in order to obtain initial agreement state status, in the cou rse of the Joint Committee review, the Department agreed to make numerous changes in its rulemakings to address Joint Committee concerns, and, the Joint Committee voted numerous objections and recommendations concerning the Department's rulemakings at its June 23, 1986 meeting, citing the rules as inadequate insofar as. to the provision of standards and lack of specific ststutory authority to conduct certain activities.

This contrasts sharply _ with the Department's posture in this instance, in which it has refused to provide clarifying text, cross-references or standards governing the licensing determinations it plans to make.

The Department's argument that its rules must be in the format approved by. the NRC echoes the position taken by the Department of Mines and Minerals 'with regard to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal program approval would be. denied.

Ultimately, the Department of Mines and Minerais pledged to pursue further rulemaking.

The Department of.

Nuclear Safety can do so as well, if the Department was apprehensive about - possible NRC rejection of.its rules, it could have obtained a preliminary review by the Joint Committee of its' rulemaking and

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submitted the concerns of the Joint Committee to the NRC, or, negotiated with the NRC.to have clarifying text added.

The' Depa rtment

'did not request a preliminary review, and those changes in _ text that it did submit to the-NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in

1988, without input or participation by the Joint Committee.

As was the case with the Department of Mines and

Minerals, compliance with the Illinois Administrative Procedure Act does not preclude state agencies f rom -

obtaining federal program approval of their administrative rules.

In response to these and other inquiries by the Joint Committee that the Department was unwilling to address, the Department suggested that such outstanding issues be addressed in the same manner as were unanswered questions of the Joint Committee concerning the Department's rules entitled " Licensing Requirements for Land Disposal of Radioactive Waste" (32 Ill. Adm. Code 601), considered by the Joint Committee at its June 23, 1986 meeting.

In that 6 stance, the Department again stated

5-JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION -

f DEPARTMENT OF NUCLEAR SAFETY 4

(Continued Page 5) p that " agreement state" status of Illinois with the NRC would be imperiled if the Joint Committee voted objections regarding more than 100 questions submitted by the Joint Committee concerning topics for which the Department lacked a distinct policy posture.

The Joint Committee voted a recommendation that the Department:

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Initiate rulemaking within one year regarding the policies and-standards required to implement the' sections identified in Appendix A of this statement, in addition, the Joint Committee requests that the Department,

-when it initiates such rulemaking, answer the questions raised by the staff concerning the implementation of Part 601, and identified in Appendix B of this statement, which the Department was unable to answer at this time due to the uncertainty of the policies to be implemented.

Despite the Joint Committee's recommendation that the Department address via rulemaking within one year the topics raised in Appendices A and B of the Joint Committee's recommendation, the Department has not as - yet proposed. amendatory rulemaking in the - intervening three years prescribing its policies pertaining to " Licensing Requirements for Land Disposal of Radioactive Weste" (32 I ll.~ Adm. Code 601).

The Department stated it has not done so because concerns relating-to selection of a disposal site and " contractor" have taken precedence over revision of its licensing rules.

The Department stated no license will be granted until late.1991 and that there was adequate time to propose amendatory-' rulema king.

Given the ' Joint Committee's Certification of No Objection to this rulemaking at its December 14, 1989 meeting to accommodate the Department's wish to quickly adopt this rulemaking and achieve agreement state status, and the Department's omission during the last t5ae years to fulfill the Joint Committee's June 23, 1986 recommendation that-it initiate rulemaliing within one year to address concerns cited by the Joint Committee, it would appear the accommodation taken by the

- Joint Committee with respect to the Depa rtment's licensing rules for low-level radioactive waste facilities may not have any utility in this instance.

The Deps.rtment obtained experience in 1986 of the concerns historically voiced by the Joint Qommittee, and could have negotiated m

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r JOINT COMMITTEE ON ADMINISTRATIVE RULES IILLINOIS GENERAL ASSEMBLY i

j STATEMENT OF' OBJECTION DEPARTMENT OF NUCLEAR SAFETY-(Continued Page 6) with the NRC during the intervening three years to obtain approval for the provision of standards and necessary. clarifying text for both rulemaking..

The Department cannot expect its failure to fulfill Its pledge to pursue further rulemaking to be supportive of its position that 1

the Joint Committes make the same accommodation that it did for low-level waste-facilities for this rulemaking.

The circumstances are not ' the same.

The Department is - aware of-the alternatives it and the Joint Committee, can take in -response to an objection by the Joint Committee, j

and therefore, the. action taken by the Joint Committee with respect to-32 Ill. Adm. Code 601 is not appropriate in this instance.

.1 y

Therefore, the ~ Joint Committee objects to Section ' 332.20 of the Department of Nuclear Safety's -

rulemaking entitled. " Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code-332), because, the Department has failed to provide ~ cross-references,

. clarify,l or. provide ' standards governing how the Department will make-key factual determinations serving as the' basis for words defined-by the Department, notably:

" active maintenance", "acquifer", " buffer zone",

" commencement of construction", " compliance period", " closure", " closure plan", " disposal area", " existing portion", " licensed site", and " point of compliance", in violation of Section 4.02 of the Illinois. Administrative

' Procedure Act.

y Obiection 2 e

The Joint Committb objects to Sections 332.40 and 332.'110(h) of 'the Department of Nuclear. Safety's - rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to provide standards governing how the-Department-will request additional information from a license applicant'and grant, modify or revoke a license application or license, in violation of Section3 02 of the Illinois Administrative Procedure Act.

~

n Section 332.40 of. ties Department's rulemaking outlines license applicati>n contents and procedures.

More particularly, Section 332.40(c) of - the 1

Department's rulemsking states the Department may ' require additional information from a license applicant so as to enable the Department to c

determine whether the application should be denied or a license granted, modified or revoked; in the course of the Joint Committee's review of this rulemaking, the Department was asked to provide standards governing how it would make such findings.

The Department declined to do so, stating that 1ts revision of sthe text of the various defined terms

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page '7)'

would' jeopardize approval by the U.S.

Nuclear Regulatory Commission (NRC) of the Department's rules and subsequent obtainment by the 4

Department of " agreement state" ' status with the NRC granting it jurisdiction to regulate source material milling facilities.

The Department's argument that its rules must be in the format approved by the NRC echoes the-position taken by the Department of Mines and Minerals with regard to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal program approval would be denied.

Ultimately, the Department of Minas and Minerals pledged to pursue further rulemaking and the Department of Nuclear _ Safety can do so as well.

The Department could have obtained a preliminary review by the Joint Committee of its rulemaking and submitted the concerns of the Joint Committee to the NRC, or, mgotiated with the NRC to have clarifying. text added.

The Department aid not request a preliminary review, and those changes in text that it did submit to the NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in_ 1988, without input or participation by _ the Joint Committee.

Compliance with the = litinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Section 4.02 of the lilinois Administrative Procedure Act (I APA) (Ill.

Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which -

implements a discretionary power to be - exercised by an agency shall include the standards by which the agency shell-exercise the power.

Such standards shall be stated as precisely and clearly as practicable

under the conditions, to inform fully those persons affected. "

The Depa rtment's rulemaking fails to satisfy this standard.

Parties are instructed that the Department may request additional data on which.the Department' will base its licensing decision, but are not advised as to the circumstances when additional information will be required or the standards the Department deems critical in reaching a decision to deny a license application and grant, modify or revoke a lic nse.

Therefore, the Joint Committee objects to Sections 332.40 and 332.110(h) of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities" (32 111. Adm. Code 332), because, the Department has failed to provide standards governing how the Department will request additional information from a license applicant and grant, modify or revoke a license application or license, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

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JOINT COMMITTEE ON ADMINISTRATIVE RULES i

lLLINOIS GENERAL ASSEMBLY j

STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 8) l Obiection 3 i

The - Joint Committee objects to Section 332.60 - of the Department of Nuclear Safety's > rulemaking entitled " Licensing liequirements for Source Material Milling Facilities" (32 lll.

Adm.. Cod s 332),

because, the i

Department has failed to provide cross-reference.s, clarify, or provide-standards -governing how the Department wih make key licensing application approval determinations concerning:

proposed site characteristics; design features of a source material milling facility; description of the construction and operatior of a byproduct material-surface impoundment and disposal area; the " design" and " technical" criteria of this Part; design features intended to facilitate closure; classification and specifications -of radioactive material; managerial controls, including criteria and standards; environmental monitoring programs required. of licensees; stabilization of a site; - admin!strative procedures of licensees including management audit and internal inspection programs';

regional and site specific data; and - reports describing methodology, calibration procedures, quality control and data analysis for measurements performed by licensees, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Section 332.60 of the Department's rulemaking prescribes technical information that license-applicants must provide to the Department.

The application is to contain a description of the site as " determined by-selection and characterization activities" including such topics as topography, geochemistry, seismology, radioactivity, ecology, history, mineral resources and endangered plants and animals; design features of the facility and byproduct material surface impoundment area embracing topics such as surface and groundwater management, effluent discharges and monitoring, site monitoring, method-of construction, and procedures for waste segregation.

Applicants must also describe design features intended to facilitate closure; the classifications and specifications of radioactive material to be received; their quality assurance prog ram, including

" audits and managerial controls including criteria and standards" and administrative procedures including management audit programs and internal inspection programs.

Also required to be listed are the distinct elements of their proposed environmental monitoring program including air, water, soll and vegetation samples; " stabilization" measures; regional and site specific data reflecting seasonal or cyclical variations and a

report describing the

" methodology, calibration s

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'V JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Ngo 9) b o rocedu res, quality control and data enalysis" for each type of measurement to be performed by the licensee.

The Department was asked to prescribe the level of detail and provids-standards, cross references or clarify how it would reach a finding that the above elements ana terms had been met [questicas 17-25 and 27-30 L

and 32-33 of the Joint Committee's Genera Problems ed Questions m

Concerning Proposed Rulemaking submitted to the Depa rtment or.

December 12,1989).

In all instances, the Department declined to do so, stating that its revision of the text of the various elemnts would jeopardize approval by the NRC of the Department's rules and subsequent obtainment by the Department of " agreement state" status.

The Department stated it might, in response to an objection or recommendation from the Joint Committee, provide some requested cross references to other provisions of this Part, but generally declined s-to provide text clarifying various phrases or standards governing how it would make determinations that the above stated license application i

requirements had been met.

The Department refused to provide even cross-references to other provisions of this Part at this juncture, r

Illustrat: ens of the Department's refusal to address Joint Committee inquirlos follow:

1)

Section 332,90(a)(1)-(5) lists topics that must be described in en application concerning a proposed site:

the area's

• • eology,"

g

" toxicology,"

" natural resources",

" local economy",

ate.

The Department refused to specify in its rulemaking the scope and detail of material to be submitted in support of an applicant's description e

of the local topics stated in Sections 332.60(a)(1) through (5),

2)

Section 332.60lb) requires applicants to submit a description of the L

design features of the source material milling facility and impoundment and disposal area, embracing such topics as: surface and groundwater rr.enagement; effluent discharges and monitoring:

" buffer zona adequacy for monitoring and potential mitigative measures," etc.

The Department refused to prescribe in its Ir rulemaking the scope and level of detail required of applicants for each of the elements listed in Gections 332. A0(b)(1)-(6) or provide w

standards governing how it will determine that those elements have been satisfied, most particularly,

" buffer zone adequacy for monitoring and potential mitigative measures".

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JOINT COMMITTEE ON ADMIN STRATIVE RULES lLLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 10) i 3)

Section 332.60(f) requires applicants to submit a description of the construction and operation of any byproduct material service impoundment and disposal area including such topics as:

method of construction, waste segregation, waste storage

methods, engineering quality control program, etc.

The Department declined to provide the scope and level of detall required of applicants for each of the elements listed in Sections 332.60(f)(1)-(9) and provide standards governing how it will determine that these elements have been satisfied, i

4)

Section 332.60(l) requires applicants to submit a description of the

" classification" and " specifications" of radioactive material to be received.

The Department refused to describe the quoted terms in its rulemaking or provide a cross-reference to a statutory or Administrative Code provision in which they are defined, in fact.

the Department stated this material was in its license application L

form, but not in its rules, thereby being policles not contained in the rules of the Department.

This issue, of course, is another basis upon which the Joint Committee could issue an objection.

5)

Section 332.60(l) states components of an environmental monitoring program generally include such factors as:

sampling of air.

aurface, groundwater, soil, vegetation, of direct radiation with both passive integrating devices and survey instruments and "other environmental analysis that might be indicated as a result of site specific conditions."

The Department failed to provide in its rulemaking the scope and level of detail required of applicants for each of the elements listed in Sections 332.60(l)(1)-(9) and provide standards governing how it will determine these elements have been met.

Sect!on 4.02 of the Illinois Administrative Procedure Act (lAPA) ( 111.

Rev. Stat.1987, ch.127, par.1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely _ and clearly as practicable under the conditions, to inform fully those oorsons affected. "

The Department's rulemaking falls to satisfy this standard.

The regulated class is told to prepare en exhaustive application covering several dozen components, but is not advised as to the level of specificity of material required to be submitted or the standards by which the Department will evaluate submitted information.

Clearly the Department could do more to i

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY l

STATEMENT OF ORJECTloN DEPARTMENT OF NUCLEAR SAFETY (Continued Page 11) describe " precisely and clearly as practicable" what data is to be submitted concerning a site's " toxicology", " method of construction",

I classification of rad'osctive material, groundwater, soll and air sampling 4

procedures, " audits and managerial controls", " management audit" and

" internal inspection" programs, in some instances, the Joint Committee only requested that illustrations of acceptable procedures or information be provided, or, for example, that a d:,finition of " stabilization" of a site be added.

In all instances, the Department refused to do so, stating that NRC approval was dependent on the rules remainirig in their present form, i

The Department's argument that its rules must be in the format approved by the NRC echoes the position taken by the Department of Mines and Minerals with regard to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal program approval would be denied.

The Joint Committee did not accept the Department's argument and ultimately the Department pledged to pursue further rulemaking.

The Department of Nuclear Safety can do so as well.

The Department could have obtained a preliminary review by l

the Joint Committee of its rulemaking and submitted the concerns of the Joint Committee to the NRC, or, negotiated with the NRC to have clarifying text added.

The Department did not request a preliminary review, and those changes in text that it did submit to the NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in 1988, without input or participation by the Joint Committee.

Compilance with the Illinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects to Section 332.60 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 lll. Adm. Code 332), because, the Department has failed to provide cross-references, clarify, or provide standards governing how the Department villl make key licensing application approval determinations concerning: proposed alte characteristics; design features of a source material milling facility; description of the construction and operation of a byproduct material surface impoundment and disposal area; the " design" and " technical" criteria of this Part; design features Intended to facilitate closure; classification and specifications of radioactive material; managerial

controls, including criteria and standards; environmental monitoring programs required of licensees; stabilization of a site; administrative i

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 12) procedures o8 licensees including management audit and internal inspection

.- oc h

't ;

regional and site specific data; and reports describing metboe gy, calibration procedures, quality control and data analysis fo men fements performed by licensees, in violation of Section 4.02 of the i

es Administrative Procedure Act.

Objection 4 The Joint Committee objects to Section 332.100 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Fadlities" (32 Ill.

Adm.

Code 332),

because, the Department has failed to provide cross references, clarify, or provide standards governing how the Department will make key licensing application approval determinations concerning:

license approval or amendment before commencement of major construction activity; verification of compilance with license specifications; reach a

determination to impose additional license terms or conditions; require

reports, examine records and inspect a licensee's operations; and evaluate a licensee's monitoring program to demonstrate compliance with Administrative Code-Parts 332,

310, 340 and

400, evaluate the performance of control systems and procedures, evaluate environmental impacts and detect potential long term effects; and describe " emission control devices" required to be provided by licensees, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Section 332.100 of the Department's rulemaking is captioned " Evaluation of License Application and Issuance of a License",

it provides that upon a determination that an application meets the requirements of this Part, the Department shall issue a license authoriting construction of a facility l

and authorire operations at a licensed site after construction after confirmation of compliance with license specifications.

Section 332.100(a) states license approval or amendment must be granted by the Department prior to the initiation of

" major c?nstruction activity ".

Section 332.100(d) states the Department may impose additional license terms or conditions to ensure compliance with this rart, reduce a public safety t

hazard, protect the environment or prevent loss or theft of materials subject to this Pa rt.

The Department reserves the right in Section 332.100(e) to require reports, examine records or conduct inspections in order to demonstrate compliance with this Pa rt.

Section 332.100(f) requires licensees to conduct a monitoring program to demonstrate compliance with these rules, evaluate the performance of control systems and procedu res, evaluate environmental impacts and detect potential

I t

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY l

STATEMENT OF OBJECTION t

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 13) long term effects.

Section 332.100(g) states licensees are to limit emissions and exposures by emission control devices.

The Department was asked to prescribe the level of detail and provide standards or clarify how it would reach a finding that the above elements and terms had been met [ questions 40-41, 42(a), 43 45 of the Joint Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to the Department on December 12, 1989).

In almost all instances, the Department declined to do so, stating that its revision of the text would jeopardire approval by the NRC of the

')

Department's rules and subsequent obtainment by the Department of

" agreement state" status.

The Department did offer to amend Section 1

332.100(a) to read as follows:

"Each application for a license or license amendment must be reviewed and the license or amendment must be lesued by the Department before commencement df/ddphhdW construction as defined in Section 332.20 duMft." lilustrations of the Dep, ' ment's refusal to address Joint Committee inquiries follow:

1)

Section 332.100(c) states the Department shall authorire operations at the licensed site after verification of compliance with license specifications.

The Department refused to state in its rulemaking the scope, procedures and standards employed by it in verifying compliance with license specifications.

1 2)

Section 332.100(e) states the Department may require reports,

4 examine records and inspect activities as necessary to demonstrate compliance with this Pa rt.

The Department declined to provide factors or standards to be employed by it in making such determinations.

3)

Section 332.100(f) requires licensees to conduct a monitoring program to demonstrate compliance with this and other Parts of the Administrative Code; evaluate the performance of control systems and procedures; evaluate environmental impacts;

and, detect potential long-term effects.

The Department refused to provide in its rulemaking the scope and level of detail required of applicants for each of the elements listed in Sections 332.100(f)(1)-(4) and provide standards governing how it will determine that these elements have been satisfied.

4)

Section 332.100(g) states licensees shall limit emissions and exposures by using " emission control devices."

The Department i

1 JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY l

(Continued Page 14) declined to describe in its rulemaking such devices, provide illustrations or examples of the types of devices that may be i

appropriate.

Section 4.02 of the Illinois Administrative Procedure Act (IAPA) (lit.

Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such st6ndards shall be stated as precisely and clearly as practicable 1

under the conditions, to inform fully those persons affected. "

The 2

Department's rulemaking falls to satisfy this standard.

The regulated class is told to prepare en exhaustive application concerning numerous components, but is not advised as to the level of specificity of material i

required to be submitted or the standards by which the Department will l

evaluate submitted information.

Clearly the Department could do more to -

describe " precisely and clearly as practicable" what data is to be submitted concerning the procedures and level of scrutiny it will employ in verifying compliance with this and other Parts, the circumstances in which it will request added information or impose new license conditions, the scope and level of detail of required monitoring programs and the c

i standards by which such programs shall be evaluated.

in one instance, l-the Joint Committee only requested that illustrations of acceptable emission control devices be provided.

The Department refused to address the inquiries of the Joint Committee, arguing that NRC program approval and agreement state status would be jeopardized if the rules were modified.

i As stated in previous recommendations, this argument was not accepted by the Joint Committee when-the Department first sought agreement state status, nor has it been accepted when put forth by other agencies, such as the Department of Mines and Minerals.

Compliance with the Illinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects to Section 332.100 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to provide cross-references, clarify, or provide standards governing how the Department will make key licensing application approval determinations concerning: license approval or amendment before commencement of major construction activity; verification of compilance with license specifications; reach a

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JOINT COMMITTEE ON ADMINISTRATIVE RULES

+

ILLINOIS GENERAL ASSEMBLY l

STATEMENT OF OBJECTION i

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 15) determination to impose additional license terms or conditions; require

reports, examine records and inspect a licensee's operations; and evaluate a licensee's monitoring program to demonstrate compliance with i

Administrative Code Parts

332, 310, 340 and 400, evaluate the performance of control systems and procedures, evaluate environmental impacts and detect potential long-term effects; and describe "emis sion control devices" required to be provided by licensees, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Obloction 5 The Joint Committee objects to Section 332.130 of the Department of i

Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities' (32 Ill.

Adm.

Code 332),

because, the Department has failed to clarify or provide standards governing how the Department will make key licensing determinations concerning approval of amendment of a license for closure of a !! censed site, more particularly:

supplemental information concerning geologic, hydrologic or other data pertinent to the containment of emplaced material; the submission of data including the results of any tests, experiments relating to surface impoundments or containment of material, and revisions. of plans for decontamination, reconturing or backfilling of areas and stabillration of the disposal

area, in violation of. Section 4.02 of the Illinois Administrative Procedure Act, i

Section 332.130 of the Department's rulemaking concerns the subject matter requirements of an application to amend a license for closure of a i

licensed site.

The basic intent of this Section la to compel licensees to amend and revise previously submitted material to reflect changes to the l

site in the period after a license is granted.

Section 332.130(a) requires l

licensees to submit an application to amend the license for site closure in -

i certain circumstances which shall include any additional

geologic, hydrologic or other data pertinent to the containment of emplaced I

material.

Section 332.130(b) requires licensees to submit the results of tests, experiments or other. analyses relating to any surface impoundment or disposal area, closure, waste migration,... or any tests, experiments l

or analyses pertinent to the long-term containment of emplaced byproduct material.

Section 332.130(c) requires applications to include any proposed revision of plans for decontamination or reconturing of areas and stabilization of the disposal area, s

-. - - - - - - ~ -

i JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOl$ GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 16)

During the Joint Committee's review of this rulemaking, the Department was asked to prescribe the level of detail of required submissions in Sections 332.130(a), (b) and (c) and provide standards govsrning how it would reach a finding that the above elements and terms had been met

[ questions 50-52 of the Joint Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to the Departme,nt on December 12, 1989).

Again, the Department declined to do so, stating that its revision of the text would jeopardize approval by the NRC of the 1

Department's rules and subsequent obtainment by the Department of

" agreement state" status.

This argument was not recognized by the Joint Committee when it reviewed the Department's initial series of rulemakings to achieve agreement state status or when put forth by other agencies, such as the Department of Mines and Minerals.

The Department made many revisions to its rulemaking in 1986 to address Joint Committee concerns, action 1

that it is not willing to take in this instance.

The Department could have submitted Joint Committee concerns to the NRC to advise that body of Illinois state rulemaking procedures and review criteria, instead, the Department argues that its rules be taken as is.

The Depa rtment's argument has not - been accepted by the Joint Committee before, and should not be accepted now.

Section 4.02 of the Illinois Administrative Procedure Act (lAPA) ( 111.

Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected."

1 The Department's rulemaking falls to satisfy this standard.

The regulated class is told to prepare an application covering numerous components, but is not advised as to the level of specificity of material t-required to be submitted or the standards by which the Department will evaluate submitted information.

Clearly the Department could do more to t

i describe what hydrologic, geologic data is to be submitted or what data the Department deems

" pertinent to the containment of emplaced material. "

The regulated class is not advised as to which tests and analyses are deemed by the Department to be adequate relating to surface impoundment (s) and the disposal area, or tests deemed by the Department to be " pertinent to the long-term containment" of the emplaced byproduct material.

Tht Depa rtment plans to regulate this F

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l JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 17) licensed activity, and yet it has failed to advise the regulated class what is expected of it.

Revisions of plans for decontamination and stabilization are required to be submitted, but again the regulated class is left in the dark as to what level of detail is required or the standards by which the Department will evaluate such submissions.

Therefore, the Joint Committee objects to Section 332.130 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 lll. Adm. Code 332), because, the Department has failed to clarify or provide standards governing how the Department will make key licensing determinations concerning approval of amendment of a license for closure of a licensed site, more particularly: supplemental information concerning geologic, hydrologic or other data pertinent to the containment of emplaced material; the submission of data including the results of any tests, experiments relating to surface impoundments or containment of material, and revisions of plans for decontamination, reconturing or backfilling of areas and stabilization of the disposal area, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Objection 6 1

1 The Joint Committee objects to Section 332.180 of the Department of 1

Nuclear Safety's rulemaking entitled " Licensing Requirements for Source l

Material Milling Facilities' (32 111.

Adm.

Code 332),

because, the Department has failed to provide standards governing how the Department will evaluate whether a source material milling facility's design, operation and closure shall protect any individual inadvertently-antering into the area, in violation of Section 4.02 of the Illinois

{

Administrative Procedure Act, i

Section 322.180 of the Department's rulemaking states a source material milling facility's

design, operation and closure shall protect any l

individual inadvertently entering in the area at any time after i

l termination of the license by the Department.

The Department was asked to provide standards gdverning how it would make such findings.

The Department declined to do so, stating that revision of the text of the rulemaking would jeopardize ' approval by the NRC of the Department's rules and subsequent obtainment by the Department of

" agreement state" status, granting it jurisdiction to regulate source material milling facilities, s

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 18) e The Department's argument that its rules must be in the format adopted or approved by the NRC echoes the position taken by the Department of Mines and Minerals with regard to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal program approval would be denied.

Ultimately, the Department of Mines and Minerals pledged to pursue further rulemaking and the Department of Nuclear Safety can do so as well.

The Department could have obtained a preliminary review by the Joint Committee of its rulemaking and submitted the concerns of the Joint Committee to the NRC, or, negotiated with the NRC to have clarifying text added.

The Department did not request a preliminary review, and those changes in text that it L

did submit to the NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in

1988, without input or participation by the Joint Committee.

Compilance with the Illinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Section 4.02 of the Illinois Administrative Procedure Act (lAPA) (Ill.

Rev. Stat.1987, ch.127, par.,;004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected. "

The Department's rulemaking falls to satisfy this standard.

Parties are advised they must construct and operate a licensed site so that trespassers are protected, even after a site have been transferred to the State or Federal governments, but they are not advised as to_ the standards the Department will employ in reaching such a finding.

The rules fall to advise the licensees what is required of them.

Therefore, the Joint Committee objects to Section 332.180 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to provide standards governing how the Department will evaluate whether a source material milling facility's - design, operation and closure shall protect any individual Inadvertently entering into the area, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

s

1 1

1 JOINT COMMITTEE ON ADMINISTRATIVE RULES

(

ILLINOIS GENERAL ASSEMBLY l

STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 19)

Objection 7 The Joint Committee objects to Section 332.200 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source t

Material Milling Facilities" (32 Ill.

Adm.

Code 332),

because, the Department has failed to provide standards governing how 'the Department will evaluate whether a byproduct material disposal site is designed, used, operated, stabilized and closed to achieve long-term stability, in violation of Section 4.02 of the Illinois ' Administrative Procedure Act.

Section 332.200 of the Department's rulemaking states a byproduct disposal site is to be " designed, used, operated, stabilized and closed to l

achieve long-term stability" and to eliminate the need for active maintenance following closure.

The Department was asked to provide standards governing how it would make such findings.

The Department declined to do so, stating that its revision of the text of the rulemaking would jeopardize approval by the NRC of the Department's rules and subsequent obtainment by the Department of " agreement state" status.

The Department also stated the questioned text expressed the ALARA

~

concept expressed throughout this rulemaking, in which any radiation exposure is presumed to be bad and regulated parties are directed to take measures to reduce radiation exposure "as low as reasonably achievable".

The Department's argument that its rules must be in the format adopted or approved by the NRC echoes the position taken by the Department of Mines and Minorels with regard.to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal program approval would be denied.

Ultimately, the Department of Mines and Minerals pledged to pursue further rulemaking.

The Department of Nuclear Safety can do so as well.

The Department could have obtained a preliminary review by the Joint Committee of its rulemaking and submitted the concerns of the Joint Committee to the NRC, or, negotiated with the NRC to have clarifying text added.

The Department i'

did not request a preliminary review, and those changes in text that it did submit to the NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in 1988, without input or participation by the Joint Committee.

Compliance with the lliinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules, s

____,_.__m__

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l I

l JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION i

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 20)

Section 4.02 of the Illinois Administrative Procedure ~ Act (l APA) (Ill, i

Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which i

implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the condition s, to inform fully those persons affected. "

The Department's rulemaking falls to satisfy this standard.

Despite the-Department's explanation that the questioned text merely advises regulated parties of the ALARA goal or concept, the fact remains licensees are directed to construct and operate a disposal site that achieves long term stability, but are not advised as to the standards the Department will employ in evaluating a licensee's disposal site.

Clearly, i

the Department could do more to state its policies " precisely and clearly as practicable" In this circumstance, but the Department has not done so.

c Therefore, the Joint Committee objects to Section 332.200 of the Department of Nuclear - Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to provide standards governing how the Department will evaluate whether a byproduct material disposal site is designed, used, operated, stabilized and closed to achieve long-term stability, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Objection 8 i

The Joint Committee objects to Section 332.210 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities' (32 lll.

Adm.

Code 332),

because, the Department has failed to clarify or provide standards governing how the Department will make key determinations pertaining to siting criteria for byproduct material disposal si tes, including:

whether a buffer zone distance is adequate; that a site's geology is simple enough to provide reliable hydrological modeling; that the depth to the water table at a site will not permit groundwater intrusion; that the hydrology, geology, etc., of a site contribute to co ttinued immobilization and containment and ensure weste containment for 1,000 years after decommissioning of the site; that a site's location '. s located near where other activities or facilities could affect the ability of a site to meet the requirerr.ents of this Part; that a site is not located above a geologic fault system; how an earthquake evaluation is to be' performed by licensees; and what is deemed by the Department to be a "large" byproduct disposal site, in violation of Section 4.02 of the Illinois Administrative Procedurs Act.

l JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 21)

Section 332.210 of the Department's rulemaking prescribes technical criteria for radioactive byproduct material disposal

sites, more particularly, siting criteria.

It provides that a buffer zone distance for a disposal site waste control unit and the control boundary be

" adequate" to carry out monitoring and remedial activities.

Section 332.210(b)(3) states that a site's " geology must be simple enough to allow reliable hydrological modsling" and Section 332.'!10lb)(4) provides that the " depth to the water table at the disposal s'.te seall not permit groundwater intrusion, perennial or otherwise, into fne waste."

Section 332.210(b)(5) of the Department's rulemaklag requires ' hat:

[T]he natural characteristics of tF.e disposal site such as hydrology,

geology, and I

topography shall

- contribute to continued immobillration and containment, and shall ensure that waste will be contained within the disposal site boundary for a period of at least 1,000 years after the decommissioning; Section 332.210(b)(6) of the Department's rulemaking states that:

[T]he disposal site shall not be located where other facilities, activities or land uses could adversely impact the ability of the site to meet the technical criteria of this Part, or mask the environmental impacts of the l

disposal area; 1

Section 332.210(b)(7) of the Department's rulemaking states that:

[T]he disposal area structure shall not be located above a geologic fault system.

The disposal site geology must be stable, i.e.,

mass wasting, erosion, slumping, or land sliding shall not adversely affect the long-term containment.

Section 332.210(b)(8) defines the phrase " maximum credible earthquake" as that earthquake which would cause maximum ground motion " based upon an evaluation of earthquake ' potential considering the regional and s-m.

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION j

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 22) l local geology and seismology and specific characteristics of local subsurface material."

Section 332.210(d) states byproduct material shall be disposed of at existing large byproduct disposal sites.

The Department was asked to prescribe th level of detall and provide-standards, cross-references or clarify how it would reach a finding that the above elements and terms had been met [ questions 63-70 of the Joint Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to the Department on December 12, 1989].

In all instances, the Department declined to do so, stating that its revision of the text of the various elements would Jeopardize approval by the NRC of the Department's rules and subsequent obtainment by the Department of " agreement state" status.

The Department generally declined to provide text clarifying various phrases or provide standards governing how it would make determinations that the above stated requirements had been met.

Illustrations of the Department's refusal to address Joint j

Committee inquiries follow:

1)

The Department refused to provide standards governing how it would determine that a licensee's buffer zone distance between a waste control unit and control boundary was " adequate".

2)

The Department refused to clarify how a site's depth to the water table shall not permit groundwater intrusion into the weste disposed at the site.

3)

The Department refused to provide standards or critaria by.which a licensee could achieve compliance with the require went that the natural characteristics of the site such as hydrology, geology, and topography contribute to continued immobilization and containment, and ensure that waste will be contained within the disposal site boundary for a period of at least 1,000 years after decommissioning.

4)

Section 332.210(b)(8) defines the phrase

" maximum credible earthquake" as that earthquake which would cause maximum ground motion

" based upon an evaluation of earthquake potential considering the regional and lo:al geology and seismology and specific characteristics of iocal subsurface material. "

The Department refused to cle'ify its rulemaking to state how this evaluation is to be perforr.ed.

s

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 23)

Section 4.02 of the Illinois Administrative Procedure Act (lAPA) (Ill.

I Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected. "

The Department's rulemaking falls to satisfy this standard.

The Department could state with more precision and clarity the standards by which it will evaluate technical data submittod by the regulated class or how correliance with the Department's rules could be achieved.

How, for e'. ample, is a licensee to make certain that the natural characteristics of a disposal site contribute to containment of eraplaced material and ensure containment for 1,000 years after decommissioning if the Department fails to provide in its rulemaking the standards and technical specifications by

)

which it shall evaluate the licensee's submitted material?

For each of questions 63-70 prepared by the Joint Committee, the Department refused to provide standards or clarifying text, stating that NRC approval was dependent on the rules remaining in their present form.

As has bw.* stated in previous recommendations, this argument was not accepted by the Joint Committee in 1986 when the Department sought initial agreement state status, nor has it been accepted when put forth by other agencies, such _as the Department of Mines and Minerals.

Compilence with the Illinois-Administrative Procedure Act does not precluda state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects to Section 332.210 of the Department of Nuclear Safety's rulemaking entitled

" Licensing l

Requirements ' for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to clarify or provide standards l-governing how the Department will make key determinations pertaining to siting criteria for byproduct material disposal sites, including:

whether i

a buffer zone distance is adequate; that a site's geology is simple enough to provide reliable hydrological modeling; that the depth to the

. water table at a site will not permit groundwater intrusion; that thu hydrology, geology, etc., of a site contribute to continued immobilizatior and containment and ensure waste containment for 1,000 years after l

der.ommissioning of the site; that a site's location is located near where other activities or facilities could affect the ability of a site to meet the requrements of this Part; that a site is not located above a geologlu fault system; how an earthquakat evaluation is to be performed by l

1

1 JOINT COMMITTEE ON ADMINISTRATIVE RULES I

ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION l

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 24) licensees; and what is deemed by the Department to be a "la rge" byproduct disposal site, in violation of Section 4.02 of the Illinois 1

Administrative Procedure Act.

Obloction 9 The Joint Committee objects to Section 332.220 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities" (32 Ill.

Adm.

Code 332),

because, the Department has failed to clarify or provide standards governing how the Department will make licensing determinations pertaining to approval of design criteria for byproduct material disposal sites, including: whether groundwater formation is "relatively close" to the surface or "not very well isolated" by overlying soll or rock, that conditions make full below grade disposal impracticable; the level and scope of detail required of below or above grade disposal plans; that disposal site surfaces are contoured to " avoid areas of concentrated surface runoff or abrupt or sharp changes in slope" and that areas toward which surface runoff might be directed shall be "well protected with rock cover or rip rap";

that rock covering of slopes is unnecessary because " bulk cover i

materials have inherently favorable erosion resistance characteristics";

"there is negligible drainage catchment area upstream"; that " topographic t

features of the site provide wind protection"' and how the Department will determine that rock cover fragments are " dense", " sound" and are resistant to abrasion, and, free of defects that will tend to unduly increase their destruction and is not " weak, friable or laminated aggregate", in violation of Section 4.02 of the l APA.

Section 332.220 of the Department's rulemaking prescribes technical design criteria for ~ radioactive byproduct material disposal sites.

The Agency Note for Section 332.220(a)(1) states that below grade disposal is not the most environmentally sound approach if a groundwater formation is "relatively close" to the surface or "not very well isolated" by overlying soils or rock and that geologic "and topographic conditions might make full below grade disposal impracticable. "

Sections L

332.220(a)(1) and (a)(2) state the licensee is to submit either a below or l

above grade disposal plan.

Section 332.220(b)(2) states disposal site surfaces shall be contoured to l~

" avoid areas of concentrated surface runoff or abrupt or sharp changes in slope" and that areas toward which surface runoff might be directed shall be "well protected with rock cover or rip rap,"

Section

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i JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY i

(Continued Page 25) j 332.220(e)(3), (4) and (5) list five circumstances in which rock covering

{

of slopes is u n neces sa ry, such as:

" bulk cover materials have inherently favorable erosion resistance characteristics";

there is negligible drainage catchment area upstream"; and " topographic features of the site provide wind protection".

Finally, Section 332.220(f)(4) states individual rock fragments for rock cover at a site shall be " dense, sound, and resistant to abrasion, and shall be free of cracks, seams and other defects that would tend to unduly increase their destruction - by water and frost actions. Weak, friable, or laminated aggregate shall not be used."

]

The Department was asked to prescribe the level of detail and provide standards or clarify how it would reach a finding that the above elements and terms had been met (questions 71-72 and 74-79 of the Joint Committee's General problems and Questions Concerning Proposed Rulemaking submitted to the Department on December 12,1989).

In all instances, the Department declined to do so, stating that its revision of the text of the various elements would jeopardire approval by the NRC ef the Department's rules and subsequent obtainment by the Department of " agreement state" status.

Illustrations of the Department's refusal to address Joint Committee inquiries follow:

)

1)

The Department declined to clarify its rulemaking or provide standards governing how it will determine whether a groundwater J

formation is "relatively close" or "not very well isolated," or prescribe in its rulemaking the circumstances under which " geologic and topographic conditions might make full below grade disposal impracticable".

2)

The Department in its rulemaking refused to provide the scope and level of detall, - subject matter requirements and documentary requirements for below or above grade disposal plans submitted to it.

3)

The Department refused to state in its rulemaking how it shall make a finding that " bulk cover materials have inherently favorable erosion resistance characteristics", how it will make a finding that a site has "a negligible drainage catchment area upstream" or how it shall make a finding that " topographic features of a site provide wind protection".

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1 JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY i

i STATEMENT OF OBJECTION t

DEPARTMENT OF NUCLEAR SAFETY (Continued Page 26)

Section 4.02 of the Illinois Administrative Procedure Act (IAPA) ( 111.

Rev. Stat. 1987, ch. 127, par.1004.02) provides that "Esch rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected. "

The

. Department's rulemaking falls to satisfy this standard.

Licensees are to submit an extensive inventory of technical design criteria for byproduct disposal sites, but are left in the dark as to what, specifically, will satisfy concerns expressed by the Department in its rulemaking.

Rock cover for a site, for example, is to be " dense, sound and free or cracks",

but the Department declines to specify the degree of

" denseness" that will satisfy this requirement.

Clearly, the Department could provide technical specifications for many of the unresolved inquiries of the Joint Committee, but it refuses to do so, arguing that NRC program approval is dependent on the Department's rules remaining in their present form.

The Department's argument that its rules must be in the format approved or adopted by the NRC echoes the position taken by the Department of Mines and Minerals with regard to its mine reclamation rules that it could not change its rules to address Joint Committee concerns because federal i

program approval would be denied.

The Joint Committee did not accept the Department's argument in 1986 when it first sought agreement state status, nor did it accept it when put forth by the Department of Mines and Minerals.

The Department could also have obtained a preliminary review by the Joint Committee of its rulemaking and submitted the concerns of the Joint Committee to the NRC, or, negotiated with the L

NRC to have clarifying text added.

The Department did not request a l

preliminary review, and those changes in text that it did submit to the NRC to avoid inquiries by the Joint Committee were not submitted to the NRC until late in 1988,- without input or participation by the Joint Committee.

Compliance with the Illinois Administrative Procedure Act e

does not preclude state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects to Section 332.220 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to clarify or provide standards governing how the Department will make licensing determinations pertaining to approval of design criteria for byproduct material disposal

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i JOINT COMMITTEE ON ADMINISTRATIVE RULES i

ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY

{

(Continued Page 27) sites, including: whether groundwater formation is "relatively close" to the surface or "not very well isolated" by overlying soll or rock, that conditions make full below grade disposal impracticable; the level and scope of detail required of below or above grade disposal plans; that disposal site surfaces are contoured to " avoid areas of concentrated surface runoff or abrupt or sharp changes in slope" and that areas toward which surface runoff might be directed shall be "well protected t

with rock cover or rip rep"; that rock covering of slopes is unnecessary because

" bulk cover materials have inherently favorable erosion resistance characteristics"; "there is negligible drainage catchment area upstream";

that

" topographic features of the site provide wind protection"' and how the Department will determine that rock cover fragments are " dense", " sound" and are resistant to abraslon, and, free of defects that will tend to unduly increase their destruction and is not

" week, friable or laminated aggregate", in violation of Section 4.02 of the IAPA.

Objection 10 The Joint Committee objects to Section 332.230 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities" (32 Ill.

Adm.

Code 332),

because, the l

Department has failed to provide cross-references, clarify, or provide 1

standards governing how the Department will mako key licensing determinations concerning groundwater protection technical measures for L

radioactive byproduct material disposal sites, including: how it will l

determine submitted information has a " sufficient basis to identify those hazardous constituents which require concentratlea limit standards to j

enable the Department to set lim;ts for those const;tuents"; how it shall determine that data p.-ovidu a basis' for adjustments to the point of l

compliance; how ~lt shall determine compliance monitoring and corrective action program adequacy; and describe the " stated objective" of a grcundwater monitoring program, in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Section 332.230 of the Department's rulemaking outlines technical requirements for groandwater protection programs for radioactive byproduct - material disposal sites.

Section 332.230(b) of the Department's rulemak'.ng states that material to be submitted to the Department "shall provide a sufficient basis to identify those hazardous constituents which require concentration limit standards and to enable the Department co set the limMs for those constituents and the p

l-

i JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT Of OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 28) compliance period.

The data and information shall also provide the basis for adjustments to the point of compilance, if necessary."

Section I

332.230(c) makes reference to a " compliance monitoring program" and

" corrective action monitoring program" to determine compilance with

" standards" set by the Department and " demonstrate the effectiveness of the corrective actions".

Section 332.230(c) states a licensee is to establish a groundwater monitoring program, whose stated purpose is to demonstrate the effectiveness of the corrective actions and that any required monitoring program may be based on existing monitoring programs to the artent the existing programs can meet the " stated objective" for the program.

The Department was asked to prescribe the level of detall and provide standards or clarify how it would reach a finding that the above elements and terms had been met

[ questions 81-83 of the Joint i

Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to the Department on December 12, 1989].

In all Instances, the Department declined to do so, stating that its revision of the text of the various elements would jeopardize approval by the NRC of the Teepartment's rules and subsequent obtainment by the Department of " agreement state" status.

Section 4.02 of the Illinois Administrative Procedure Act (IAPA) (Ill.

Rev. Stat. 1987,- ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected. "

The Department's rulemaking falls to satisfy this standard.

The regulated class is told to prepare an exhaustive groundwater protection plan concerning numerous technical components, but is not advised as to the level'of specificity of material required to be submitted or the standards by which the Department will evaluate submitted information.

Clearly the Department could do more to describe " precisely and clearly as practicable"' what data is to be submitted concerning the procedures and level of scrutiny it will employ in evaluating compliance and corrective action programs, that submitted data has a " sufficient basis to identify hazardous constituents which require concentration limit standards, and clarify what the " stated objective" is for a groundwater protection p rog ram.

The Department refused to address the inquiries of the Joint Committee, arguing that NRC program approval and agreement state-status would be Jeopardized if the rules were modified.

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i JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENL RAL ASSEMBLY STATEMENT OE OBJECTION i

DEPARTMFNT OF Nts': LEAR SAFETY

('lontinued Pap 29)

As stated in previous recommendations, this argument was not accepted by the Joint Committee when the Department first sought agreement state status, nor, has it been accepted when put forth by other agencies, such as the Department of Mines and Minerals.

Compliance with the lilinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects to Section 332.230 of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 Ill. Adm. Code 332), because, the Department has failed to provide cross references, clarify, or provide standards governing how the Department will make key licensing determinations concerning groundwater protection technical measures for radioactive byproduct material disposal sites, includingt how it will determine submitted information has a " sufficient basis to identify those hazardous constituents which require concentration limit standards to enable the Department to set limits for those constituents";

how it shall determine that data provides a basis for adjustments to the point of compilance; how it shall determine compilance. monitoring and corrective action program adequacy; and describe the " stated objective" of a groundwater monitoring program, in violation of Section 4.02 of the l

lilinois Administrative Procedure Act.

h Obloction ll The Joint Committee objects to Section 332.240 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities" (32 lil.

Adm.

Code 332),

because, the L

Department has failed to clarify or provide standards governing how ths Department will make key licensing dete minations concerning: how it will L

evaluate whether a disposal site's design assures compilance with Section 332.170(c) of this rulemaking for 1,000 years; that soil samples are taken from similar soll samples under similar circumstances; that soils used for near surface cover are essentially the same as surrounding surface soils; what the Department considers to be " elevated levels of u

l radium" at a site;' that long term substituted cover motorial does not degrade over long-term intervals and that to "the exteit necessary to u

l prevent threats to human health and the environment, t} e licensee shall control or eliminate postclosure escape of nonradiolorical hazardous constituents, leechate, contaminated rainwater, or wasts decomposition products to g roundwater, surface water or to the atmosphere,"- in violation of Section 4.02 of the Illinbis Administrative Procedure Act.

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JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 30)

Section 332.240(a) of the Department's rulemaking is captioned " Technical Criteria for Byproduct Material Disposal Sites - Control of Radiation Hazards." Subsection (a) provides in relevant part:

Licensees shall... close the disposal site in accordance with a design which assures compliance with the requirements specified in Section 332.170(c) for a period of 1,000 s

years....

In. computing required byproduct material area cover thicknesses, average moisture in the cover shall be determined from similar soils and under similar 1

circumstances.

If material other than soil is proposed as cover material, it shall be demonstrated that such material will not t

crack or degrade by differential settlement, weathering, or other mechanism, over long-time intervals... soils used for near i

surface cover shall be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils.

Section 332.240(b) provides: that to "the extent necessary to prevent threats to human health and the environment, the licensee shall control or eliminate postclosure escape of nonradiological hazardous constituents, leachete, contaminated rainwater, or waste decomposition products to groundwater, surface water or to the atmosphere." The Department was asked to provide standards or clarify how it would reach a finding that L

the above elements and terms had been met (questions 84 88] of the Joint Committee's. General Problems and Questions Concerning Proposed J

Rulemaking submitted to the Department on December 21,1989),

in all instances,, the Department declined to do so, stating that its revision of 2

the text. of various elements would jeopardine approval by the NRC of the Department's rules and subsequent obtainment by the Department of

" agreement state" status.

The Department refused to provide standards governing how it will evaluate whether a design assures compliance with Section 332.170(c) of its rulemaking for a period of 1,000 years, prescribe in its rulemaking how it will find that samples are taken from similar soils under similar circumstances, state in its rulemaking what it considers to be elevated levels of' radium or how it shall find that soils used for near surface i

o i

9 t

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 31) cover are " essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils. "

Section 332.240(e) of the c

Depa rtment's rulemaking states substituted cover material is not be degrade over "'ag-term intervals. "

The Department refused to state what it deems to be "long-term intervals."

Section 4.02 of the Illinois Administrative Procedure Act (lAPA) (til.

Rev. Stat.1987, ch.127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power, Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons af fected. "

The Department's rulemaking fails to satisfy this standard.

The regulated class must comply with radiation protection requirements, but is not advised tl s standards by which the Department will evaluate a licensee's operation.

The Department refused to address the inquiries of the Joint Committee, arguing that NRC program approval and agreement state status would be jeopardized if the rules were modified.

As stated in previous recommendations, this argument was not accepted by the Joint Committee when the Department first sought agreement state status, nor has it been accepted when put forth by other agencies, such as the Department of Mines and Minerals.

Compliance with the Illinois Administrative Procedure Act does not preclude state agencies from obtaining federal program approval of their administrative rules.

Therefore, the Joint Committee objects' to Section - 332.240 of the Department. of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 lil. Adm. Code 332), because, the Department has failed to clarify or provide standards 9overning how the Department will make key licensin determinations concerning: how it will evaluate whether a disposal site'gs design assures compliance-with Section 332.170(c) of this rulemaking for 1,000 years; that soil samples are taken - from similar soil samples under similar circumstances; that soils used for near surface cover are essentially the same as surrounding surface soils; what the Department considers to be

" elevated levels of radium" at a site; that long term substituted cover material does not degrade over long term intervals and that to "the extent necessary to prevent th reats to human health and the i

environment, the licensee shall control or eliminate postclosure escape of nonradiological hazardous constituents, leachate, contaminated rainwater.

or weste decomposition products to' groundwater, surface water or to the

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 32) atmosphere," in violation of Section 4.02 of the Illinois Administrative Procedure Act.

Qblection 12 The Joint Committee objects to Section 332.250 of the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for 3ource Material Milling Facilities (32 111.

Adm.

Code 332)

because, the Department has failed to clarify or provide cross-references or standards concerning how tho' Department will make key determinations concerning its review of technical criteria concerning source material milling operations, more particularly: the procedures by which an independent quality assurance program is established; what it deems to be adverse groundwater impacts or conditions conducive to alleviate such impacts; that all " practicable measures" to control emissions at the source have been taken; and whether' conditions are within a " range prescribed to ensure that equipment is operating consistently near peak efficiency".

Section 332.250 of the Depa rtment's rulemaking outlines technical requirements for operations at a source material milling facility licensed by the Department under this Pa rt.

Section 32.250(c) states "an independent quality assurance program shall be established to assure that specifications of the monitoring program" are - met and that if

" adverse groundwater impacts or conditions ccnducive to adverse groundwater impacts occu r",

action shall be taken to alleviate the conditions.

Section 332.250(d) states that institutional controls, such as extending the licensed site boundary and exclusion area, may be employed to ensure that offsite exposure limits are met, but only after all practicable measures have been taken to control emissions at the l

source and that source material milling operations shall be conducted so that all airborne effluent releases and radiation exposures are reduced to levels as low as is reasonably achievable.

Section 332.250(d) states it i

shall be determined whether or not conditions are within a range prescribed to ensure that the equipment is operating consistently near peak efficiency and that when operations are shutdown and repairs conducted, that " drying and packaging operations shall cease as soon as p racticable. " '

During the Joint Committee's review of this rulemaking, the Department was asked provide standards governing how it would reach a finding that the above elements and terms had been met (questions 89-90 and 92-94 of the Joint Committee's' General Problems and Questions

- ~...

.i JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 33)

Concerning Proposed Rulemaking submitted to the Department on December 12,1989).

The Department declined to do so, stating that its revision of the text of the various defined terms would jeopardize approval by the NRC of the Department's rules and subsequent obtainment by the Department of " agreement state" status.

This argument was not recognized by the Joint Committee when it reviewed the Department's initial series of rulemakings to achieve agreement state status or when put forth by other agencies, such as the Department of Mines and Minerals.

The Department made many revisions to its rulemakings in 1986 to address Joint Committee concerns, action that it is not willing to take in this instance.

The Department could have submitted Joint Committee concerns to the NRC to advise that body of Illinois state rulemaking procedures and review criteria.

Instead the Department argues its rules be taken as is.

The Department's argument has not been accepted by the Joint Committee before, and should not be accepted now.

Section 4;02 of the Illinois Administrative Procedure Act (lAPA) ( 111.

Rev. Stat.1987, ch.127, par.1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall be stated as precisely and clearly as practicable I

under the conditions,. to inform fully those persons affected."

The Department's rulemaking falls to satisfy this standard.

The regulated class is told to achieve numerous radiation protection components, but is not advised of the standards by which the Department will evaluate a licensee's activities.

Clearly the Department L

could do more to specify the method by which an independent quality l,

assurance program is to be established) provide technical specifications as to what it deems to be adverse groundwater impacts; and provide standards evaluating whether all practicable measures to control L

emissions at the source have been taken and the range prescribed that l

equipment is operating consistently near peak-efficiency, in response to L

the last stated element, the Department. reported it was referring to l

manufacturer's specifications, but stated it would not so state in its L

rulemaking, again citing the fear that its rules would not be approved by the NRC.

The NRC should not object to additional text clarifying the Department's polleios.

The Department plans to regulate this licensed activity, and yet it has fa,iled to advise the regulated class what is expected of it.

l.

l

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY i

STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 34)

Therefore, the Joint Committee objects to Section 332.250 of the Department of Nuclear Safety's rulemaking entitled

" Licensing

'i Requirements for Source Material Milling Facilities" (32 111. Adm. Code 332)

because, the Department has failed to clarify or provide cross-references or standards concerning how the Department will make key determinations concerning its review of technical criteria concerning source material milling operations, more particularly: the procedures by which an independent quality assurance program is established; what it deems to be adverse groundwater impacts or conditions conducive to alleviate such impacts; that all " practicable measures" to control emissions at the source have been taken; and whether conditions are within a " range prescribed to ensure that equipment is operating consistently near peak efficiency".

(

Obloction 13 The Joint Committee objects to Section 332.290(f) of _the Department of Nuclear Safety's rulemaking entitled " Licensing Requirements for Source Material Milling Facilities (32 Ill.

Adm.

Code 332)

because, the Department has failed to clarify or provide standards governing how the Department will evaluate status reports prepared by licensees, in l

violation of Section 4.02 of the Illinois Administrative Procedure Act, t

Section 332.290(f) of the - Department's rulemaking - requires licensees to submit status reports twice annually to the Department including such information as:

(1) the quantity of radionuclides; (2) results of an -

i environmental monitoring program; (3) a requirement that data be reported in a manner that the Department can confirm potential radiation doses to the public; (4) a summary of survey and maintenance activities; (5) a summary of milling operations; (6) a report of circumstances l.

"significantly different" from those reported in the license application; and (7) a discussion of the cause of a release if 25% greater than anticipated in the license application.

o During the Joint Committee's review of this rulemaking, the Department was asked to prescribe the level of detail of required submissions in Sections 332.290(f)(1)-(7) and provide standards governing how it would l

reach a finding that the above elements and terms had been met (question 104 of the Joint Committee's General Problems and Questions Concerning Proposed Rulemaking submitted to the Department on December 12,1989).

The Departm,ent declined to do so, stating that its

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 35) revision of the text of the various defined terms would jeopardize obtainment by the Department of " agreement state" status.

This argument was not recognized by the Join 5 Committee when it reviewed the Depa rtment's initial series of rulemakings to achieve agreement state status or when put forth by other agencies, such as the Department of Mines and Minerals.

The Department made many revisions to its rulemakings in 1986 to address Joint Committee concerns, action that it is not willing to take in this instance.

The Department could

'have submitted Joint Committee concerns to the NRC to advise that body of Illinois state rulemaking procedures and review criteria.

Instead, the Department argues its rules be taken as is.

The Department's argument has not been accepted by the Joint Committee before, and should not be accepted now.

Section 4.02 of the lilinois Administrative Procedure Act (I APA) ( 111.

Rev. Stat. 1987, ch. 127, par. 1004.02) provides that "Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power.

Such standards shall _ be stated as precisely and clearly as practictble under the conditions, to inform fully those persons affected."

The < Department's rulemaking falls to' satisfy this standard.

The regulated class is told to prepare status reports twice annually covering numerous components, but is not advised as to the level of specificity of 4

material required to be submitted or the standards by which the Department will' evaluate submitted information.

Clearly the Department could do more to describe what it deems to be an adequate summary of survey and maintenance activities,. milling' operations, and what is deemed by the Department to be circumstances "significantly different" j

than those reported in the license application.

The Department plans to

. regulate this licensed activity, and yet it has failed to advise the regulated class what us expected of it.

Once again the regulated class

-is left in the dark as to what level of detail is required or the standards by which the Department will evaluate such submissions.

Therefore, the Joint Committee objects to Section 332.290(f) of the Department of Nuclear Safety's rulemaking entitled

" Licensing Requirements for Source Material Milling Facilities" (32 ll1. Adm. Code 332) because, the Department has failed to clarify or provide standards governing how the Department will evaluate status reports prepared by l

JOINT COMMITTEE ON ADMINISTRATIVE RULES ILLINOIS GENERAL ASSEMBLY STATEMENT OF OBJECTION DEPARTMENT OF NUCLEAR SAFETY (Continued Page 36)

Ilconsees, in violation of Section 4.02 of the Illinois Administrative-Procedure Act.

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STATE OF lLLINO!S DEPARTMENT OF NUCLEAR SAFETY-1035 OUTER PARK DRIVE f

SPRINGFIELO. 11. 62704 i

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(217) 785 9900

. kbN April 12, 1990 D A(C?On

,t i

'N;?

i Mr. Bruce A. Johnson Executive Director Joint Committee on Administrative Rules 509 South Sixth Street 1

Room 500 9'

Springfield, Illinois 62701-Re:

32 Ill. Adm. Code 332 1

Dear Mr. Johnson:

Enclosed please find the Department's responses to the Joint Committee's 4

Notice of Objection to Existing Agency Rules pertaining to the Department of Nuclear Safety's rules entitled " Licensing Requirements for Source Material' Milling Facilities," 32 Ill. Adm. Code 332.

The Notice of Objection was i

received by the Department on January 16, 1990.

If you have ar.y questions regarding the Department's responses, please do not. hesitate to contact our office. -Questions may be directed to Ms. Babette l

Salus, Senior Staff Attorney, at 785-9880.

Sincerely, l

i-:

2x A homasW.Ortcigek Director TWO:rm Enc.

i

,a i

AGENCY RESPONSE TO JOINT COMMITTEE OBJECTION TO EXISTING RULES Date: April 12, 1990 Agency:

Department of Nuclear Safety The Heading of the Part:

Licensing Requirements for Source Material Milling Facilities I

Code Citation:

32 111. Adm. Code 332 Response (check one):

Initiate rulemaking to repeal i

tne rules to meet the Joint Committee's objection Initiate rulemaking to amend the rules to meet the Joint Committee's objection i

X Refusal to initiate rulemaking to remedy the i

Joint Committee's objection If rulemaking will be initiated, date notice of proposed rulemaking was, or is expected to be, published in the Illinois Register.

Not Applicable Agency Response to Specific Joint Committee Objections:

The Department's response to Specific Joint Committee Ob ctions and the rationale for that response is attached to this notice.

Signature of Aper 4 (spa 1

c:

DEPARTMENT OF NUCLEAR SAFETY RESPONSE TO THE JOINT COW 41TTEE ON ADMINISTRATIVE RULES o

STATEMENT OF.0BJECTION TO EXISTING RULES

. Heading of the Part:

Licensing Requirements-for Source Material Milling Facilities Code Citation:

32 111. Adm. Code 332 Section Numbers:

332.20 332.40 332.60 332.100 332.110 332.130 332.180 332.200 3

332.210 332.220 332.230 332.240 332.250 332.290 Objection 1:

The Joint Comittee objected to several definitions in Section 332.20, i.e.,

active maintenance, aquifer, buffer zone, commencement of construction, compliance period, closure, closure plan, disposal area, existing portion, 3

licensed site, and point of compliance, because it believed that the Department failed to provide cross-references or standards, or to clarify how.

i it would reach a finding that various elements had been met and how it would 4

make the factual determinations called for by the various terms which are

' defined.

At this time, the Department refuses to initiate rulemaking to remedy the Joint Comittee's objection to Section 332.20 of Part 332. The Department does not agree that this Section of the rule in any way violates Section 4.02 i

of the Illinois Administrative Procedure Act.

That Section provides: "Each i

tule which implements a discretionary power to be exercised by an agency shall

-_ include the standards by which the agency shall exercise the power.

Such standhrds shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected." The Department believes it has done this. The definitions of most of the terms used in this Part are identical to the definitions used in 10 CFR 40, the federal regulations that currently govern those perrons that will be affected by 32 Ill. Adm. Code 332. Therefore, the Department believes that the definitions contained in Section 332.20 do' inform fully those persons affected by Part 332.

In fact, although the Department did receive coments when the rule was being promulgated, none of the comments indicated that the definitions lacked specificity.

When the Department promulgated Part 332, the Department indicated to the Joint Comittee on~ Adminittrative Rules that it was doing so in order to fulfill a legislative directive that the State pursue an agreement with the U.S. Nuclear Regulatory Comission that would transfer to the State regulatory authority over byproduct material as defined in Section lle.(2)'of the Atomic Energy Act.

In order to obtain this regulatory authority, the State must have a regulatory program in place that the NRC has determined is adequate to

protect the public health and safety and compatible with the NRC's program for regulation of 11e.(2) byproduct material.

The NRC staff has considered the regulatory program established by 32 Ill. Adm. Code 332 and has made a i

determination that the State's program meets the criteria for transferring regulatory authority (55 Fed. RA 1459).

For the Department to amend its rules now to address the concerns raised by the Joint Comittee would seriously jeopardize the State's application to assume regulatory authority.

If the NRC approves the State's application to enter into an Agreement with the State, the Department could attempt to modify the rules, to the extent such modifications:are consistent with the Agreement, to address concerns raised by the Joint Comittee.

Objection 2:

The Joint Comittee objected to Sections 332.40 and 332.110(h) because it believed that the Department failed to provide standards governing how the Department will request additional information for a license applicant and grant. ~~""y or revoke a license application or license.

The Depare refuses to initiate rulemaking to remedy the Joint Comittee's objection u Sections 332.40 and 332.110(h).

The Department believes these rules contain standards that are stated "as precisely, and clearly as practicable under the conditions, to inform fully those persons affccted," and therefore, conform to the requirements set out in Section 4.02 of the Illinois Administrative Procedure Act.

Furthermore, as noted above, any attempt by the Department'to initiate rulemakings at this time to address the concerns raised by the Joint Comittee could jeopardize the State's application for transfer of regulatory authority currently pending before the U.S. Nuclear Regulatory Comission.

Objection 3:

The Joint Comittee objected to Section 332.60 because it believed that the Department failed to provide cross-references, clarify, or provide standards governing how the Department will make key licensing application approval determinations concerning: proposed site characteristics; design features of a source material milling facility; description of the construction and operation of'a byproduct material surface impoundment and disposal area; the design and technical criteria of this Part; design features intended to facilitate closure; classification and specifications of radioactive material; managerial controls, including criteria and standards; environmental monitoring programs required of licensees; stabilization of a site; administrative procedures of licensees including management audit and internal inspection programs; regional and site specific data; and reports describing q

methodology, calibration procedures, quality control and data analysis for measurements performed by licensees.

The Department refuses to initiate rulemaking to remedy the Joint Committee's objection to Section 332.60. The Department does not believe that Section l

332.60 implements a discretionary power to be exercised by the Department, and, therefore, is not subject to the requirement specified in Section 4.02 of the Illinois Administrative Procedure Act.

Section 332.60 merely specifies the technical information that is to be submitted to the Department by a license applicant, and does not provide for the Department to exercise any L

.o-

. powers.

Furthermore, for reasons stated above, the Department believes that initiating rulemaking, at this time, to address the concerns of the Joint Comittee.would jeopardize the State's application for assumption of regulatory authority.of 11e.(2) byproduct material.

Objection 4:

The Joint Comittee objected to Section 332.100 because it believed that the Department failed to provide cross-references, clarify, or provide standards governing how the Department will make key licensing application approval determinations concerning: license approval or amendment before commencement of major construction activity; verification of compliance with license specifications; reach a determination to impose additional license terms or conditions; require reports, examine records and inspect.a licensee's operation; and evaluate a licensee's monitoring program to demcnstrate compliance with Administrative Code Parts 332, 310, 340 and 400, evaluate the performance of control systems and procedures, evaluate environmental impacts and detect potential long-term effects; and describe emission control devices required to be provided by licensees.

The Department refuses to initiate rulemaking to remedy the Joint Comittee's objection to Section 332.100.

For the reasons stated in the Department's response to Objection 2, the Department contends the rules conform to Section 4.02 of the Illinois Administrative Procedure Act.

The decisions to be made under Section 332.100 are technical in nature and require the application of technical expertise. Under the 9 cumstances. the Department believes that Section 332.100 contains standards that sa stated as " precisely and clearly as practicable and that Section 332.100 infor.3 fully those persons affected

-by the requirements.

Objection 5:

The Joint Comittee objected to Section 332.130 because it believed that the Department failed to clarify or provide standards governing how the Department will make key licensing determinations concerning approval of amendment of a license for closure of a licensed site,~more particularly:

supplemental information concerning geologic, hydrologic or other data pertinent to the containment of emplaced material; the submission of data including the results of any tests, experiments relating to surface impounduents or containment of material, and revisions of plans for decontamination, recontouring or backfilling of areas and stabilization of the disposal area.

The Department refuses to initiate rulemaking to remedy the Joint Comittee's objection to Section 332.130.. The Department disagrees with the Joint Comittee's conclusion that'the rule fails to conform to Section 4.02 of the Illinois Administrative Procedure Act.

Section 332.130 does not purport to implement a discretionary power to be exercised by the Department.

Rather it specifies technical information that a licensee is required to include in any application for site closure and stabilization.

The standards that the Department will apply when evaluating such applications are provided in Section 332.100 (Evaluation of License Application and Issuance of a License),

Section 332.160 (General: Requirements), Section 332.170 (Protection of the General Population from Radiation), Section 332.180 (Protection of Individuals from Inadvertent Access), Section 332.200 (Stability of the Byproduct Material 3

j Disposal Site After. Closure), and Sections 332.210 - 332.240 (Technical Criteria for Byproduct Material Disposal Sites).

Objection 6:

The Joint Comittee objected to Section 332.180 because it believed that the Department failed to provide standards governing how the Department will evaluate whether a source material milling facility's design, operation and i

closure will protect any individual inadvertently entering.into the area.

The Department-refuses to initiate rulemaking to remedy the Joint Comittee's objection to Section 332.180.

Section 332.70(d) requires the applicant to demonstrate in its license application that its proposed facility satisfies the requirement of Section 332.180.

Compliance with Section 332.180 is achieved through application of engineering principles.

The'particular method for achieving compliance is left to the license applicant.

For the Department to prescribe acceptable methods of protecting against inadvertent intrusion would unnecessarily restrict latitude afforded to license applicants under the current regulations.

In addition, as noted above, any attempt by the Department to initiate rulemaking at this time to address concerns raised by the Joint Comittee could jeopardize the State's application for assumption of regulatory authority-over 11e.(2) byproduct material.

Objection 7:

The Joint Comittee objected to Section 332.200 because it believed that the

. Department failed to provide standards governing how the Department will evaluate.whether a byproduct material disposal site is designed, used, operated, stabilized and closed to achieve long-term stability.

The Department refuses to initiate rulemaking to. remedy the' Joint Comittee's objection to Section 332.200. Section 332.70(e) requires the applicant to demonstrate in its application that the proposed facility will satisfy the requirements of Section 332.200. As with Section 332.180, the requirements of Section 332.200 ere satisfied by engineering design.

For the reasons stated in the Department's response to Objection 6 the Department believes that this rule satisfies Section 4.02 of the Illinois Administrative Procedure Act.

Therefore, the Department is not initiating rulemaking to address the concerns of the Joint Comittee.

Objection 8:

The Joint Comittee objected to Section 332.210 because it believed that the Department failed to clarify or provide standards governing how the Department will make key determinations pertaining to siting criteria for byproduct l.

material disposal sites.

i The Department refuses to initiate rulemaking to remedy the Joint Comittee's L

objection to Section 332.210. The Department believes that Section 332.210 provides standards that are " stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected."

Section 332.210 identifies about a dozen characteristics that the Department will look L

at when evaluating the suitability of the disposal site selection by the license applicant. These criteria are, for the most part, derived from and.

,3:.r reflect the requirements contained in 10 CFR 40, the federal regulations that-currently govern persons that will be affected by 32 Ill. Adm. Code 332.

Objection 9:

The Joint' Committee objected to Section 332.220 because it believed that the-Department failed to clarify or provide standards governing how the Department will make licensing determinations pertaining to approval of design criteria for byproduct material disposal sites.

The Department refuses to initiate rulemaking to remedy the Joint Committee's objection to Section 332.220.

The Department's response to Objection 8 is equally applicable to the Joint Committee's objection to Section 332.220. The design criteria specified in Section 332.220 are derived from 10 CFR 40, Appendix A.

Since adoption of these requirements is a prerequisite to the NRC transfe* ring regulatory authority to the State, the Department believes that this rule complies with Section 4.02 of the Illinois Administrative Procedure Act.

Objection 10:

The Joint Committee objected to Section 332.230 because it believed that the Department failed to provide cross-references, clarify, or provide standards governing how the Department will make key licensing determinations concerning technical groundwater protection measures for radioactive byproduct material disposal sites.

The Department refuses to initiate rulemaking to remedy the Joint Committee's-objection to Section 332.230.

Like the requirements of Sections 332.210 and

.332.220, Section 332.230 is derived from 10 CFR 40 Appendix A.

As adoption of these requirements is a prerequisite to NRC transferring regulatory authority to the State, the Department believes that it has complied with Section 4.02 of the Administrative Procedure Act.

Objection 11:

The-Joint Committee objected to Section 332.240 because it believed that the Department failed to clarify or provide standards governing how the Department will make key licensing determinations concerning disposal site design and disposal site closure.

The Department refuses to initiate rulemaking to remedy the Joint Committee's objection to Section 332.240.

The Department contends that the requirements contained in Section 332.240 are expressed as precisely and clearly as practicable under the conditions. For reasons stated above, the Department is not initutbg rulemaking to address the Joint Committee's concerns at this time.

Objection 12:

The Joint Committee objected to Section 332.250 because it believed that the Department failed to clarify, or provide cross-references or standards governing how the Department will make key determinations concerning its review of technical criteria concerning source material milling operations, 0

gf.. - -

3 more particularly: the procedures by which an independent quality-assurance program is established; what it deems'to be adverse groundwater impacts'or conditions. conducive to alleviate such impacts; that all practicable measures to control emissions at the source have been taken; and whether conditions are within a range prescribed to ensure that equipment is operating consistently near peak efficiency.

The Department refuses to initiate rulemaking to remedy the Joint Committee's objection to Section 332.250.

The Department believes that Section 332.250 is written in terms that are sufficiently precise and clear to inform fully those persons affected.

The requirements of Section 332.250 are derived from equivalent regulations of the, U.S. Nuclear Regulatory Commission (10 CFR 40, Appendix A) that currently govern the activities of persons that would be affected by 32 Ill. Adm. Code 332.

For this reason, and for other reasons stated above, the Department is not initiating rulemaking to address the Joint Committee's concerns at this time.

Objection 13:

The Joint Committee objected to Section 332.290(f) because it believed that the Department failed to clarify or provide standards governing how the Department will evaluate status reports prepared by licensees.

The Department refuses to initiate rulemaking to remedy the Joint Committee's objection to Section 332.290(f). The Department believes that Section-332.290(f) incorporates standards that are precise and clear enough to inform fully persons who are affected by the rule.

The requirements of Section 332.290(f) are derived from NRC rules that are currently applicable to persons who are affected by Part 332.

As noted previously, adoption of this rule is a prerequisite to NRC transferring regulatcry authority to the State-over byproduct material as defined in 11e.(2) of the Atomic Energy Act.

Furthermore. the Department does not believe that Section 4.02 of the Illinois Administrative Procedure Act applies to the requirements specified.in Section 332.290(f).

Section 332.290(f) specifies the type of information that the licensee must include in a status report submitted to the Department and does not provide for the Department to exercise a discretionary power.

For these reasons, the Department is not initiating rulemaking at this time to address the concerns of'the Joint Committee.

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