ML20055C214
| ML20055C214 | |
| Person / Time | |
|---|---|
| Issue date: | 05/24/1988 |
| From: | Treby S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Knapp M NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20055C215 | List: |
| References | |
| FOIA-90-A-32, FOIA-TUYL90-36 NUDOCS 8806020197 | |
| Download: ML20055C214 (5) | |
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I nAs*HNotoN, D, c. a0sss NUCLEAR REGULATORY COMMISSION May 24, 1988 s
MEMORANDUM FOR:
Malcolm R. Knapp, Director Division of Low Level Waste 1
Management and Decommissioning, NMSS l
FP.OM:
Stuart. A. Treby -
i Assistant General Counsel for Rulemaking and Fuel Cycle, OCC i
SUBJECT:
THE ROLE OF MAINTENANCE IN IMPLEMENTING THE URANIUM MILL TAILINGS RADIATION CONTROL ACT OF 1978, AS AMENDED In your March 14, 1988 memorandum you requested the views of OCC on the role and function of meintenance in the design of covers for reclamation of:
uranium mill tallings-disposal areas under the Atomic Energy Act of 1954, as amended (AEAct), the Uranium Mill Tallings Radiation Control Act of 1978.
as amended (UMTRCA), the EPA standards in 40 CFR 192, and the NRC regulations in 10 CFR Part 40, as these authorities relate to the role and i
function of maintenance in the design of covers for reclamation of uranium mill tallings disposal areas.
Your n.emorandum specifically referenced Criterion 6 of Appendix A to Part 40 which establishes the radiation protection. and longevity standards for impoundn.ent covers.
Our uriderstanding of your question, however, precludes limiting the discussion The auestion of the role of mcIntenance in design also to Criterion 6 alone..
implicates Critt.rla 1 and 10, and the scope of Commission discretion and flexibility outlined in the introduction to Appendix A. We approach the
. question from-this broadcr perspective.
The' fundamental question asked by your memorendum is, what is the scope of the Commission's discretion, if any, to include active maintenance as an l
elonent in the design of a' cover for a uranium mill tallings impoundment?
To clarify our understanding of the issue, we accept as a given that some maintenance of a disposal site will always be needed,' l.e., repair of fences and markers, elimination of burrowing animals, removal of undesirable deep rooted plant species, etc. _ What is at issue is the more deliberate inclusion of the need for, and character of, periodic repair in the design of a cover in order to be able to meet -the radiation protection and cover longevity Such a desI n would be submitted and reviewed on the premise standards.
D that the design, although meeting.the radon emanation standard for early years, would not meet the stability and radiation protection standards in the long term without the provision for periodic repair of the cover.
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2 STATUTORY B ASIS FOR THE PRESENT, RUBES ON AC,TIVE MAINTENANCE Our analysis of the Commission's discretion to allow active maintenance u a design feature begins with Section 161x of the AEAct, added by Sectio W of UMTRCA.
This section gives authority to the-Commission to rg/drc financial'suretles for the reclamation, decontamination and decommisW6h.g o; mill sites and disposal areas and for long term monitoring and maintenance of the reclaimed areas.
It includes a performance standard for rec!wstion, that "the need for lon0 term maintenance and monitoring of such sitet structures and equipment after termination of such license will be mm,W6 7
ano, to the maximum extent practicable, eliminated..."
Section 161x also requires the Commission to execute its provisions by rule, regulation or order. The Commission implemented the general statutory performance standard by rule in Appendix A, particularly in Criterion 10, but also importantly in Criterion 1.
Criterion 1 states a broad design goal.
The goal of " siting and design decisions" is " permanent isolation of talling and associated contaminants by minimiring disturbance and dispersion by natural forces, and to do so without ongoing maintenance."
- Further,
- (T)allings should. be disposed of in a manner that no _ active maintenance is required to preserve conditions of the site."
CriterTon 10, which addresses long term.' funding, underscores the Intended result by not requiring any funding for maintenance in the long term, but only for " surveillance and
" control".
(The concept of " control" in Criterion 10, undefined in the rule, refers to Government ownership of the disposal site after closure in order to place supervision of land use in a long lasting stable Institution.
See, Final Ceneric Environmental Impact Statement, NUREG-0706, Vol.1, sections 12.2.2.7, 12.3.11, and 13.4 The administrative costs of such Government control are a part of the custodlal agency activities funded under Criterlon 10).
Implicit is the understanding and conclusion that if the cover is desl ned and Installed in accordance with the _ prescriptive requirements of 0
Appendix A, there will be no need for active maintenance.
Therefore, no fur' ding' of active maintenance is included in Criterion 10.
(But see 10 CFR 150.32(a) which' requires long term maintenance funds coIIected by an Agreement State to be turned over to the Federal Government if the Federal Covernment becomes the custodial agency).
Although the performance standard in Section 161x is not absolute and visibly grants a range of discretion to the Commission regarding the role of maintenance, the Commission's codified rules state that it is feasible to eliminate long term active maintenance altogether and that the. regulatory position against any long term active maintenance is a valid exercise of the Commission's discretiop..
This position is supported by the leglstative record. See, House Report 95-1480', Part 1, p.20 (Report of the Committee on Interior and Insular Affairs), and Part 2, p.44 (Report of the Committee on Interstate and Foreign Commerce).
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SUBSEQUENT LEGISLATION Subsequent legislation and Complssion rulemaking have clouded the issue.
The NRC Authorization Act for Fiscal Years 1982-1983, Pub. Law 97-415, amended Section 84 of the AEAct in two major re=oects.
First, Section 84a(1) was amended to require that, in the management of mill tallings, the Commission give due consideration to the economic costs and other factors that the Commission deems appropriate.
Second, the Congress added Section 84c that permits licensees to submit disposal regimes for. tallings that vary from the Commission's requirements.
The Commission must determine, however, that the alternatives will achieve a ~ level of stabillration and containment equivalent to, to the extent practicabje, or more strinDent than the level of stability and containment that would be provided by adherence to the Commission's codified rules.
Both the recognition of economic costs in evaluating reclamation plans required by Section 84a(1) and the site specific flexibility provisions of Section 84c have been incorporated into the Commission's regulations in the Introductior to Appendix A,10 CFR Part 40, for the stated purpose of enhancing Commission flexibility (see, 50 Fed.
Reg. 41852, October 16,1985).
The range of flexibility provided by these amendments is, however, inhibited by the content of the Commission's preser.1 rules.
This is clearly stated in Section 84c.
The alternatives must be equivalent to, to the extent practicable, or more stringent then the Commission's codified requirements and the EPA standards.
The codified ir.hlbition against ongoing maintenance is, therefore, one of the Commission's rules as to which a licensee pursulng alternatives under SecQn 84c would beve to demonstrate the equivalence, to the extent practicable of his alternatives.
For a specific site, the issue becomes one of determiilnD the impracticability of ensuring long term (1000 years, or in any case not less than 200 years) containment and stability without any provision for active maintenance at some. point within the long term timeframe appropriate to the site.
EPA REGULATIONS in 40 CFR 192, the EPA standards for mill tallings environmental protection, the EPA incorporated several provisions of its groundwater protection standards promulgated originally Dr hazardous waste disposal under the Resources Conservation and Recovery Act of 1976.
40 CFR 192.32(b)(1) expressly incorporates the closure perfor: nance standard for hazardous waste disposal sites found in 40 CFR 264.111. This performance standard requires closure in a
manner
- that, a(M)lnimlres the need for further maintenance....." -
The preamble to the EPA rule does not discuss 40 CFR 264.111 in detall.
In response to comments, however, the EPA stated its regulatory preference for passive controls such as provided by thick earthen covers, in contrast to institutional cont?ols, for assuring stability of the covered tallings.
See, 48 FR 45935-85936.
It can be concluded that, althouDh not prohibiting active
.e
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l maintenance as a design element, the EPA standard impiles that the cover should be effective to control redletion harards for 1000 years and, in any case, for at least 200 years, without dtpendence on Institutional controls.
1 Undtr EPA's approach, active tnalntenance In design would most likely be considered an Institutional control, that is, the design would assume rellence upon a government agency's preplanned maintenance to prevent the exposure of the public to radiation hazards or chemical hazards for the site specific stability period, in the same way one would rely on government control to prevent disturbance of the tallings by intruders.
This aspect of the EPA standard was already present in the NRC regulation, stated in terms of no ongoinD or active maintenance.
j ACTIVE MAINTENANCE AS A DESIGN ELEMENT-LFCAL CONCLUSIONS The preceding discussion o' relevant statutes and reDulations leads to the conclusion that, in a generic sense under Appendix A, active maintenance should not be considered as a factor or element in the design of a tallings disposal area tover with respect to providing reasonable assurance that the design will provide effective protection of public health and safety for the site speelfic stability period (which may range from 200-1000 years, depending upon analysis of site specific conditions with due consideration of economic costs and other factors).
This conclusion does not clerive from the statutes, but rather from the Commis sion's regulations.
The partinent statut&s give the Cornmission discretion to consider active ner.lntenance in L
rulemakinD for f.he management of tallings disposal sites. Section 161x only requites minimi Ing maintemnce, or eliminating. maintenance to the maximum extent possible.
The desipn goals of Appendix A state a Commission choice to proceed, in the first lastance, without :ensidsration of maintenance in e
design of covers.
1 Lat2r ernendments to Section 64, in particular Section tec, make it clear, bewever, that the ConDress intended the Commiss!on' to exercise its best technical and scient.lfic judgment in establishing technically feasible and workable site speelf.c closure plans.
That judgment could allow active maintenance as a design factoi If active maintenance were put forward by the licensee as an alternative, and demonsteated to provide stability er,d containment equivalent to, to the extent practicable, to the Commission's regulations.
Under Section 44c, as incorporated into Appendix A, conditions of practicality at a site, in terms of site specific geology, topography, hydrology, meteorology and other unique features, would have to tie described and analysed by the ll(insee to meet his burden of demonstration.
Before allowing such an alternative, the Commission must also determine that the alternative, with Ks alement of.ective meintenance, provides containment l
and stabilisation equivalent to, to the extent practicable, or more stringent than the Commission's rules., in order for such a determination not to appear arbitrary or copricious, and to be supportable on the licensing record, the staff should develop a set of deelslon criterla to be used in its L
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review of a licensee's analysis of practicality and equivalency of an offered alternative.
FUNDING FOR ACTIVE MAINTENANCE As noted above, Criterlon 10 does not mandate funding for other than long term surveillance and control.
This is not, however, a bar to funding long i
term maintenance incorporated into a design on a site specific basis as part of the licensee's alternative under Section 84c.
Section 161x also allows the l
Commission to proceed by " order" In establishing long term funding, in agency practice, the concept of ' order", as used in Section 161x, includes the option of imposing requirements by license condition on an Individual ba sis.
Accordingly, the amount needed to fund the preplanned long term n alntenance could be included in the license amendment authorialng the licensee's alternative.
SUMMARY
The flexibility given the Commission by Section 84c of the AEAct offers an avenue by which licensees can present alternatives to the prescriptive requirements and performance objectives of the criterla in Appendix A.
The inhlbition against active maintenance in design of tallings impoundment covers is one of the requirements for which an alternative may be presented and considered by the staff.
The equivalency and practicality of the alternative are to be considered in relation to the site specl'lc geology, topography, hydr ology, meteorology, and other site specific facic rs, includir.g economic costs.
It is recommended that the staff develop dec!slon criteria for making the required determinetton.
4 t
Stuart
. Treby Assistant Central Counsel for Rulemaking 8
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