ML20057B645
| ML20057B645 | |
| Person / Time | |
|---|---|
| Issue date: | 05/04/1993 |
| From: | Grimsley D NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Facaros N AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20057B646 | List: |
| References | |
| FOIA-93-156 NUDOCS 9309230063 | |
| Download: ML20057B645 (3) | |
Text
E' U.S. NUCLEAR REGULATORY COMMISslON NRC FOsA REOutS1 NUMBL R(S)
FOIA 156
. [..s~g RESPONSE TYPE i
Y RESPONSE TO FREEDOM OF y yl 'IN^t i IPARTIAL I3 a
j
/p INFORMATION ACT (FOIA) REQUEST DATE MAY 4 1993 DOCKET NUMBL R($1 Uf aMiscalde)
REQUESTE R Nickolas Facaros PART 1.-AGENCY RECORDS RELEASED OR NOT LOCATED (See checAedbones/
No agency records subject to the request have been located.
No additional agency records subject to the reques, have been located.
Requested records are available through another public distribution program. See Comments section, y
Agency records subject to the request that are identified in Append.xies)
C are already available for pubhc inspection and copying at the NRC Public Document Room,2120 L St:eet, N.W., Washington. DC.
Agency records subject to the request that are identified in Appendix (es)
O are being made available for pubhc mspection and copying E
at the NRC Pubhc Document Room,2120 L street, N.W., Washington DC,in a folder under this FOIA number.
The nonproprietary version of the proposaHsl that you agreed to accept in a telephone conversation with a member of my staff is now being made asailable for public inspection and copying at the NRC PubHc Document Room,2120 L atreet, N.W., Washington, DC, m a folder under this F OI A number.
Agmey records subject to the request that are identified in Appendixfes) may be inspected and copied at the NRC Local Pubhc Document r am identif;ed in the Comments section.
i Enclosed is intormation on how you may obtain access to and the charges for copying records located at the NRC Pubhc Document Room. 2120 L Street, X
N w.. Washington. Dc X
Agency records subject to the request are enclosed.
- Records subject to the request have been referred to another Federa! agencybes) for review and dWect response to you.
i Fees You will be billed by t e NRC for fees totahng $
h You will receive a refund from the NRC in the amount of s t
ic view of NRC's response to this request. no further action is being taken on appeal letter dated
.No PART 11. A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE Certain information in the requested records is being withheld from pubhc disclosure pursuant to the exemptior s described in and 'or the reasons stated in Part 11, B, C, and D. Any released portions of the documents for which only part of the record is being withheld are being made availaole for puhhc inspection and copylng in the NRC Pubbc Document Room,2120 L Street, N W., Washington. DC in a f older under this FOI A number.
COMMENTS i
- Agency records subject to your FOIA request that are identified on the enclosed Appendix D are enclosed.
This coinpletes NRC's action on your FOIA request.
9309230063 930504 PDR FOIA FACAROS93-156 PL'R SIWTUR E, DIRE CTOR, DIV O.,
N OF F REED ( M OF INFORMATION AND PUBLICATIONS SE RVICE$
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Re:
FOIA-93-156 APPENDIX C DOCUMENTS ALREADY IN THE PDR HUMBER DATE DESCRIPTION 1.
12/10/90 Letter from Grimsley to Husseman (1
page)
PDR Accession No. 9107190104 2.
02/26/93 Letter from Chilk to Yaden (1 page)
PDR Accession No. 9303190077 3.
02/26/93, Letter from Chilk to Husseman (1 page)
PDR Accession No. 9303190075
.4.
02/26/93 Letter from Chilk to Stewart-Smith (1
page)
PDR Accession No. 9303190073 5.
02/26/93 Letter from Chilk to Silver (1 page)
PDR Accession No. 9303190068 6.
02/26/93 Letter from Chilk to Sanchey (1 page)
PDR Accession No. 9303190008 7.
03/02/93 Letter from Bernero to Lytle (29 pages)
PDR Accession No. 9303190077
u.
i Re:
FOIA-93-156 APPENDIX D DOCUMENTS BEING PLACED IN THE PDR HUMBER DATE DESCRIPTION 1.
07/22/91 Memorandum from Silberberg to Holonich (14 pages) 2.
10/29/91 Memorandum from Silberberg to List of I
Addressees (13 pages) 3.
11/07/91 Memorandum from Meyer to Silberberg (12 pages) 4.
11/15/91 Memorandum from Linehan to Silberberg (12 pages) 5.
02/21/92 Memorandum from Heltemes to Bernero (75 pages) 6.
03/16/92 Memorandum from Norry to Beckjord (21 pages)
[
7.
05/20/92 Memorandum from Beckjord to Taylor (22 pages) 8.
09/21/92 Memorandum from Bechjord to Taylor (94 pages) 9.
02/18/93 Memorandum from Silberberg to Lesar (3
pages) 10.
undated Draft letter from Beckjord to Graham (1
f page) 11.
undated Draft memorandum from Taylor to Commissioners (14 pages) i l
P l.,
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March 12, 1993 i
Director Division of Freedom of Information and Publications Service fRf.EDOM 0F INF0< M Office of Administration ACT REQUEST U.S.
Washington, Nuclear Regulatory Commission D.C.
20555 dI[
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Re!
PreeIingLof TnlcImation Rnquest
'd' 3 / 1 4 3
Dear Director:
3 Under the Freedom of Information Act l
me copies of the following records withiI request that
)
you send n 10 working days.
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(1) by telephone or any other means of commAll records
- nquiries, any person or entity to the NRC:
unication, from (a) Between July 31
- 1990, petition of Oregon and Washington for rulreg y 1990 the classification of radioactive w emaking on Nuclear Reservation, aste at Hanford submitted by the undersigned; records under the t
ct i
(b)
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- 1993, Between September 12, 1
September 1991 and April 1992 petitiregarding or Cook and the Yakima Indian Nation fo ons by Mr.
Hanford Nuclear Reservation,on the classification o e at Information Actrequests for records under the Freedomexcluding only of submitted by the undersigned; (2)
Connissioners' meeting at which theyThe minutes and of the states ' petition; voted to deny the (3) the Commissioners on the states' petitiThe NRC staff's y report to on; (4)
Commissioners voted to deny the statAll notices of the m e
es' petition; (5) All press or media releases re states ' petition and the Commissioners' lated to the denial thereof; f30(2250219' 3rr.
J
- ~
NRC FOIA March 12, 1993 Page 2 6
(6) All NRC policies and procedures on handling and recording inquiries, by telephone or otherwise, excluding requests for agency records under the l
Freedom cf Information Act; and (7) All NRC policies and procedures for determining whether any given subject matter should l
be included in or excluded from press-or media releases.
Please provide these records without exception or deletion, j
If any material responsive to this request is withheld,
[
please provide ample justification.
j I hereby petition for a waiver of all fees otherwise incurred for the processing of this request under 10.C.F.R.
- 9. 41 (b) :
j I
(1) The information will be used for a related story; i
(2) Each record-will be fully analyzed, and the analysis will determine the extent of extraction; i
(3) The records are expected to be used for an investigative story in various publications, and the -
l requester is an editor of an environmental newsletter j
titled The Seamless Neb and an accomplished writer competent in legal analysis; l
i (4) The public will develop an understanding of I
the internal operations and activities-of the NRC on f
matters of potential public interest; l
(5) The information is targeted to reach people who read newspapers, the circulation of which exceeds 1 million; (6) The Seamless Web expects to. publish the story 1
in its capacity as a news service, and will make the j
story available for reprinting by other newspapers, i
(7) The story will be copyrighted and made available for reprinting in original form, with proper i
credit, at no charge, and The Seamless Web itself will
.i be distributed at no charge; and l
(8) It is possible, though unlikely, that the i
requester will win an award for investigative environmental reporting.
i i
l l
)
i
,NRC t'OIA
. March 12, 1993 4
Page 3 Please send the records to me at The Seamless Neb, P.O.
Box i
5448, Eugene, OR 97405-0448.
If you have t.ny questions, olease call me at (503) 345-9907.
Thank you for your time and cooperation.
Sincerely, fit tl 4 AlcHO]
Nickolas Facaros NF/nf I
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l JUL 2 2 1;;)
l MEMORANDUM FOR:
Joseph J. Holonich, Acting Director Repository Licensing and Quality Assurance Project Directorate Division of High-Level Waste Management Office of Nuclear Material Safety and Safeguards i
FROM:
Mel Silberberg, Chief Waste Management Branch 1
Division of Engineering Office of Nuclear Regulatory Research l
SUBJECT:
DRAFT FEDERAL REGISTER NOTICE OF DENIAL OF PETITION (PRM-60-4)
Enclosed for your review and comments is a draft Federal Register notice for the denial of the petition of rulemaking from the States of Washington and Oregon (PRM-60-4). Please let us have your comments as soon as possible so that we can finalize the notice and prepare the Commission Paper package.
l Mel Silberberg, Chief Waste Management Branch Division of Engineering Office of Nuclear Regulatory Research
Enclosure:
As stated cc:
P. Altomare, NMSS D. Fehringer, NMSS C. Glenn, NMSS J. R. Wolf, OGC Distribution:
Subj/ Circ /Chron Shao Bosnak Silberberg Randall Prichard WMB Rdg/ Circ NAME & LOCATION:
C:\\WP51\\WPDOCS\\FEDREG.CP Of-
.'ard dall 1 erberg 07 p/91 0 //2 /91 07/ e7/91 T-D
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DRAFT NUCLEAR REGULATORY COMMISSION 10 CFR PART 60 DOCKET NO. PRM-60-4 STATES OF WASHINGTON AND OREGON; DENIAL OF PETITION FOR RULEMAKING AGENCY:
NUCLEAR REGULATORY COMMISSION ACTION:
DENIAL OF PETITION FOR RULEMAKING
SUMMARY
- The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-60-4) submitted by the States of Washington and Oregon which deals with the classification of radioactive waste materials at defense reprocessing facilities.
ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 2120 L Street, NW.
(Lower Level), Washington, DC.
For further Information
Contact:
Clark Prichard, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington D.C. 20555, telephone (301) 492-3884.
SUPPLEMENTARY INFORMATION:
I I.
THE PETITION On December 17, 1990 the Nuclear Regulatory Commission published a Notice a Receipt of a petition for rulemaking from the States of Washington and Oregon (55 FR 51732). The petition requested that the Commission revise the definition of "high-level radioactive waste" (HLW) so as to establish a
DRAFT procedural framework and substantive standards by which the Comission will determine whether reprocessing waste, including in particular certain waste stored at the U. S. Department of Energy's site at Hanford, Washington, is HLW and therefore subject to the Commission's licensing authority (low-level radioactive waste generated at defense facilities is exempt from Commission licensing authority).
The petitioners request that the Commission amend 10 CFR 60.2 to clarify the definition of HLW and the definition of "HLW facility"." The petitioners request that the Commission-
- 1. Establish a process to evaluate the treatment of defense reprocessing wastes in tanks so that such wastes will not be considered HLW if, prior to disposal, each tank is treated to remove the largest technically achievable amount of radioactivity; and
- 2. Require that the heat produced by residual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment technology) will be within limits established to ensure that grout meets temperature requirements for long-term stability for low-level waste forms.
The petitioners state that this rulemaking is based, in part, on section f
202 of the 1974 Energy Reorganization Act, which defines Commission authority over retrievable surface storage facilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by DOE which are not used for, or are part of, research and development activities.
According to the petitioners, legislative history reveals that Congress intended the Commission to license defense reprocessing tank wastes at the point of long-term storage or disposal. The petitioners note that low-fraction wastes resulting from pretreatment of tank wastes are scheduled to be grouted and disposed of in land-based grout vaults on the Hanford site in accordance with regulations developed under the Resource Conservation and Recovery Act (RCRA). The petitioners believe that if such wastes are HLW, they 2
sRAFT clearly fall under the Commission's licensing jurisdiction under section 202 (4) of the Energy Reorganization Act of 1974.
The petitioners point out that the present definition of HLW in the Commission's regulations is based upon the source of the waste.
The petitioners claim that incidental waste source is impossible to ascertain due to mixing in defense tanks and the unavailability of accurate records. They point out, in particular, that over the last 45 years, mixing of wastes from different sources has complicated classification of Hanford tank wastes, including double-shell tank wastes. Moreover, the petitioners state that radionuclide inventories are estimates and subject to substantial uncertainty.
The petitioners assert that neither DOE, the Commission, nor the petitioners have adequate information regarding the radioactive portion of the double-shell tank waste. The petitioners believe that the Commission needs to establish both a procedure and a standard for making an evaluation as to whether wastes are HLW on a tank-by-tank basis.
The petitioners assert that the proposed amendment is essential to provide protection of the future health and safety of the citizens of the Pacific Northwest.
II. NRC STAFF PROCESS FOR CLASSIFICATION OF DOE REPROCESSING WASTES At Savannah River, West Valley, and Hanford, questions have ariren regardino the classification of reprocessing wastes for which DOE must provide disposal. The NRC staff has reached decisions regarding the classification of several such wastes on a case-by-case basis, as described below.
It should be noted at the outset that the NRC has long maintained that the appropriate definition of HLW for purposes of determining the extent of NRC's licensing authority over DOE waste disposal facilities is the source-based definition of Appendix F of 10 CFR Part 50 (see 52 FR 5993, February 27,1987).
Accordingly, any facility to be used for the disposal of "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels" must be licensed by the NRC. Most of the waste storage tanks at Savannah River, West Valley, and Hanford contain wastes meeting this definition, and the facilities 3
0 3.A FT to be used for disposal of these wastes are therefore potentially subject to l
NRC licensing jurisdiction.
When the Appendix F definition was promulgated, the Atomic Energy Commission specifically noted that the term HLW does not include " incidental" l
waste resulting from reprocessing plant operations such as ion exchange beds, sludges, and contaminated laboratory items, clothing, tools, and equipment.
Neither are radioactive hulls and other irradiated and contaminated fuel structural hardware within the Appendix F definition. Under the same reasoning, incidental wastes generated in further treatment of HLW (e.g.,
i decontaminated salts or miscellaneous trash from waste glass processing) would be outside the Appendix F definition.
In the cases of Savr.nnah River and West Valley wastes, DOE plans to retrieve the wastes from their storage tanks and to separate essentially all of the radioactive materials for eventual repository disposal. At these facilities, the decontaminated salt residues will contain only trace levels of l
radioactive contamination. Therefore, the NRC has been able to determine that f
projected recovery of HLW from the wastes in tank storage is sufficiently complete that the decontaminated salts and other residual wastes should be appropriately classified as " incidental" (i.e., non-HLW), and that the NRC should have no licensing authority over the facilities to be used for disposal of such wastes.
At Hanford, DOE plans to process stored double shell tank wastes in a manner that is conceptually the same as at Savannah River and West Valley.
l Most of the radioactive constituents of the wastes would be separated for eventual repository disposal and the residual decontaminated salts would be disposed of on site in a concrete like grout facility.
(Plans for processing of single shell tank wastes are still under development.) However, classification of the Hanford double shell tank wastes has proven more problematical than did classification of Savannah River and West Valley wastes.
f I
At Hanford, many of the primary reprocessing wastes were generated using older separation technologies, which resulted in substantial dilution of those wastes i
)
with non-radioactive materials.
It appears to be technically and economically i
unreasonable to try to achieve the same degree of recovery of radioactive j
materials at Hanford that DOE projects to be acheivable at Savannah River and West Valley.
In addition, many of the tanks at Hanford contain mixtures of HLW and wastes from other sources that are not properly classified as HLW under the 4
l
F DRAFT Appendix F definition. There would be no basis for the NRC to require recovery and repository disposal of those tank wastes that are not within the Appendix F definition. Finally, record keeping at Hanford was not always thorough enough to allow precise determinations of the origins of waste now present in specific tanks at Hanford. For these reasons, some of the Hanford tank wastes cannot be readily classified as either HLW or incidental wastes using only the definitions and concepts discussed above. Therefore, the NRC staff worked with DOE in a series of meetings to develop classifications of the Hanford double-shell tank wastes that would be conceptually consistent with the Appendix F definition, including the incidental waste concept.
First, management records were adequate for DOE to determine that two double-shell waste tanks contain wastes from sources other than reprocessing of reactor fuels. Therefore, these wastes clearly do not contain HLW within the Appendix F definition. The NRC agrecd with DOE that the disposal facility for these wastes is not subject to NRC licensing authority.
Second, DOE has carried out a " mass balance" analysis of waste management activities at Hanford. This analysis determined the total amount of "first cycle reprocessing wastes" generated at Hanford and, to the extent practical, the current location of those wastes.
DOE also estimated that the amount of radioactive material expected to be recovered for repository disposal would be nearly as large as the inventory of reprocessing waste originally generated.
The proposed on-site grout disposal of the residual waste from the double-shell tank waste processing would be only a very small fraction of the reprocessing wastes originally generated at the site. (on-site disposal of single-shell tank wastes, if pursued by DOE, would represent a somewhat larger fraction of the total waste inventory generated).
Finally, DOE agreed to study possible technologies for additional waste processing, and to use such technologies to remove the largest reasonably achievable amount of radioactive material from any double-shell tank wastes to
/,
be disposed of in on site grout facilities. This commitment by DOE to remove the largest reasonably achievable amount of radioactive material, coupled with the mass-balance study indicating that a large fraction of the originally generated radioactive material vould be recovered, allowed the NRC staff to agree with DOE that the residual waste material after processing of double-shell tank wastes should be classified as incidental waste, i. e. a waste incidental to the process of recovering HLW from tank wastes for disposal in 5
i
-MAFT the repository. With this classification, DOE could proceed with on site disposal in a grout facility without licensing by the NRC.
It should be noted that the appropriate classification of some Hanford wastes remains to be determined--specifically any single-shell tank wastes that DOE might decide to dispose on site, and any empty but still contaminated waste tanks DOE might dispose of in place.
For both types of wastes the residual levels of radioactive materials may be larger than for the decontaminated double shell tank waste residues, and a case-by-case determination of the appropriate waste classification might be necessary.
Ill. PUBLIC COMMENTS ON THE PETITION The NRC received comment letters from 12 commenters. Two letters were from other Federal agencies, two were from public interest groups, one was from a nuclear industry corporation, and seven were from private individuals. Most comments were opposed to the petition.
A. Process and Standards Proposed in Petition Several comments expressed concern that granting the petition would have an adverse effect on the timely disposal of radioactive waste at Hanford. This was a concern as many of the Hanford waste tanks were seen as nearing or exceeding their design life. The provisions of the rulemaking proposed in the petition were viewed as limiting DOE's flexibility in selecting the most effective processes for waste treatment and disposal. The petition's request that "best available technology" be used in removing HLW material from the tank wastes was seen as ignoring costs of disposal, exposures to workers, and environmental impacts.
Some comments rebutted the petition's claim that the rulemaking proposed in the petition would offer a better process for classification and disposal of the Hanford tank wastes. These commenters did not see any advantage in the proposed process over the process for classification and disposal currently in use. One comment noted that the Commission's rulemaking requiring disposal of Greater-than-Class C waste in a geologic repository or Commission-approved alternative (53 FR 17710, May 19, 1989) forces DOE to address this problem.
6
DRAFT The action proposed by the petitioner's was viewed as not increasing the safety of disposal of the waste.
{
The Commission agrees that the alternative process proposed in the petition would limit DOE's flexibility and is not preferable to the process already in place.
1 B. Creation of a Risk Based Classification System
)
Several comments, while noting that the rulemaking proposed by the petition would not do so, favored creation of a risk-based system of radioactive waste classification.
The Commission has previously addressed the costs and benefits of creating
[
a new system of radioactive waste classification.
Its rationale for not doing so is outlined in the statement of considerations to the proposed Part 61 rulemaking on disposal of Greater-than Class C waste (53 FR 17709, May 18, 1988).
C. NRC Licensing Authority Some comments focused on the licensing authority of NRC over the Hanford tank wastes. DOE stated that the rulemaking suggested in the petition would involve NRC in regulation of DOE's predisposal waste treatment and processing activities, which would be inconsistent with NRC authority to license specific DOE facilities under the ERA. Another commenter stated that the proposed rulemaking was inconsistent with the statutory responsibilities of DOE and NRC.
The Commission is aware of its limited authority over management of the Hanford tank wastes. A rulemaking such as proposed in the petition could be seen as exceeding the Commission's authority.
A commenter concluded that DOE was currently in violation of 10 CFR Part 30 requirements for a license because various near surface waste disposal 1
facilities at Hanford meet the definition of " geologic repository" in 10 CFR Part 60. These disposal facilities currently hold what the commenter believes is HLW in either long-term storage or disposal facilities. This commenter wanted NRC to clarify the meaning of "long-term storage" by adding some suggested language to Part 60 or Part 30.
7
DRAFT
]
The Commission believes that it has licensing authority over defense HLW which is in long-term storage or disposal. The Comission's position that the
]
Hanford double-shell tank wastes are not presently in long-term storage or f
disposal has been upheld by the Courts. Thus, the Commission does not find any violation of 10 CFR Part 30.
D. Public Input A number of comments stressed the importance of adequate public input into decision making regarding disposal of the Hanford tank wastes. Some called for public hearings on this subject to be held in the Pacific Northwest.
One commenter noted that the EIS which was done for Hanford provided the opportunity for public comment. Another commenter believed that the Comission's rulemaking procedures did not offer the public a better opportunity for input than does the current licensing procedure.
The Commission's views are in Section IV. " Reasons for Denial".
E. Other Coments One commenter was opposed to the petition's claim that the radioactive inventory of the Hanford tank wastes was inadequately known. The comenter believed that the contents of the tanks can be bounded well enough to judge the relative safety of various disposal options.
The Commission views the uncertainty regarding the waste inventory as one reason for allowing DOE the flexibility to treat waste without being held to a "best available technology" standard.
One comment stated that while the petition was aimed solely at the Hanford tank wastes, its provisions would affect all radioactive wastes from reprocessing, including those at Savannah River, West Valley, and the Idaho National Engineering Laboratory. As the waste management programs at these other sites are in different stages of implementation, the impacts of the provisions would vary from site to site.
The Commission agrees (see " Reasons for Denial").
8
DRAFT Some comments urged the Comission not to change the present definition of HLW.
No such change is being made by the Commission.
IV. REASONS FOR DENIAL The petition requests several major changes regarding the classification of radioactive wastes in the Hanford double-shell tanks.
First, it calls for a change in the process by which the classification has taken place to date. This process, already described, has consisted of interactions between NRC and DOE staffs. The petition views this process as j
inadequate, and advances what it considers a more formal process--rulemaking--
as a vehicle for classification of the tank wastes.
Second, the petition advances an alternative criterion for classifying the tank wastes into HLW and incider.tal waste. The criterion it advocates is that each tank be treated to remove the " largest technically achievable amount of radioactivity". This is a different, more stringent criterion than the criteria used to date.
A third aspect to the petition is its request for NRC to require that the DOE program for waste disposal in grout facilities at Hanford meet certain standards regarding heat generation and long term stability of the LLW placed therein.
Each of these three aspects of the petition is addressed in the following.
P A.
Proposed Change In The Process For Waste Classification The petition advocates specifying by rulemaking how the Hanford double-shell tank wastes should be classified. Reasons cited in the petition for the belief that rulemaking is the preferred process are: (1) rulemaking procedures are appropriate to provide the maximum degree of public involvement and scrutiny for HLW treatment and disposal decisions, and ensure that Federal agency actions are accountable; and (2) rulemaking is best suited to the two tasks necessary for waste classification, which are interpretation of statutory language in the Nuclear Waste Policy Act and formulation of agency policy.
9 i
.R A R Regarding item (1), the Commission disagrees that rulemaking is necessary to provide adequate levels of public input into the process of radioactive waste management at Hanford. The petition fails to recognize the opportunities for public input which have been accorded in the past and which exist at present. Public input was part of the environmental review process followed by DOE in its publication of the EIS for defense wastes at Hanford. (Final Environmental Impact Statement, " Disposal of Hanford Defense High-Level, Transuranic, and Tank Wastes", US DOE, December,1987.)
Public input was also part of the process which produced the Hanford Federal Facility Agreement and Consent Order, the agreement among DOE, EPA, and the State of Washington regarding management of the Hanford tank wastes.
The existing DOE-NRC process for waste classification affords opportunity for public input. The State of Washington and the Yakima Indian Tribe have been informed of the DOE-NRC interactions regarding classification of the Hanford tank wastes. The State and Tribe were invited to comment on the classification process, and did so.
f Should there be concern over lack of opportunity for public involvement, the Commission's procedures in 10 CFR 2.206 allow for redress. Requests for a proceeding to review the Commission's actions regarding waste classification at Hanford are possible under this provision.
Regarding item (2), the position that rulemaking is necessary to interpret statutory language and formulate agency policy, the Commission also disagrees.
The interpretation of statutory language is not the primary purpose of agency rulemaking, but is instead more appropriately an adjudicatory function. Agency policy has been, and will continue to be, developed independent of agency rulemaking. There are instances where rulemaking is the appropriate vehicle to implement agency policy, but there are other instances where it is not.
The classification of the Hanford tank wastes is in this latter category.
Each of the double-shell tanks at Hanford contains a different mix of waste material. As the petition notes, each tank may need an individual documentation and determination procedure for effective classification. The 10
'9 AFT petition recognizes that even a rulemaking would not eliminate the need for individual classification of particular tank wastes.
Furthermore, the same type of classification problem may exsist at other DOE facilities, such as Savannah River and Idaho National Engineering Laboratory, and at the former conrnercial reprocessing site at West Valley, NY.
Inventories of reprocessing wastes at these other facilities have different characteristics from those in the the Hanford tank wastes. A rulemaking would impact waste management at all of these other facilities, not just at Hanford.
In summary, the petition does not cite convincing evidence that the alternative procedure advocated, rulemaking, would have any advantage over the process currently in place.
B proposed Standard For Waste Classification The petition asks te substitute an alternative standard for classification of the Hanford tank wastes.
It asks that the "best technically available technology" be used to remove HLW f rom the tank wastes; only af ter this process j
has been completed would the remaining material in the tanks be classified as incidental wastes. This approach is a departure from the process for classification which is presently being used.
It appears to be a more stringent standard than what presently exists.
The basis for the petition's proposed standard is that the Hanford double-shell tank wastes are HLW by law. The definition of HLW which is applicable to the Hanford tank wastes is that contained in 10 CFR Section 50, Appendix F, I
which is a source-based definition.
It is this definition which Congress intended to apply to HLW when the Energy Reorganization Act of 1974 was passed.
The Commission agrees with the position taken by the petitioners regarding the applicable definition of HLW.
In its rulemaking regarding the proposed j
revision of the definition of HLW (51 FR 5992, February 27,1987),the Commission outlined its position concerning this point.
It also reiterated its position that the ERA gives the Commission licensing jurisdiction over the disposal of HLW generated in defense reprocessing.
I i
11
l DRAFT However, as the petition acknowledges, many of the Hanford tanks contain waste materials that cannot be traced by source and present a classification problem. To date, the NRC/ DOE interactions regarding classification of these j
wastes have considered a number of aspects. These include the availability of f
technology for separation of HLW, the expense involved in partitioning the tank j
wastes, occupational exposures involved, possible environmental impacts, and other aspects of waste management.
The petition seeks to focus the process solely on the use of the "best available technology". The other aspects of waste management, such as cost and j
occupational exposures, do not appear to play any role.
The Commission believes that the complexity of the problems involved in effective treatment and disposal of defense reprocessing wastes make the unidimensional standard advocated by the petition unrealistic. The Commission believes that the criteria being used in the present process of waste classification are preferable to the standard advanced in the petition.
C.
Proposed Commission Requirements For Disposal of Waste in the Grout Facility at Hanford The reasons for denial presented above discuss the rationale behind the Commission's process for classification of the Hanford double-shell tank wastes.
It is clear from these reasons that the Comission regards those wastes which can be classified as incidental wastes by that process are eligible for treatment as low-level radioactive wastes. The Hanford grout facility is planned for disposal of low-level radioactive waste. These incidental wastes, among other low-level wastes, have been generated at a DOE facility. By law the disposal of such wastes is not within the jurisdiction of the Commission. Accordingly, the Commission lacks the authority to establish the requirements called for in the petition and must deny this aspect of the petition.
As noted in the September 25, 1989 letter from Robert M. Bernero to Mr.
A.J. Rizzo of DOE's Richland Operations Office, the NRC staff has indicated a desire to be informed about the inventories of key radionuclides entering the grout facility at Hanford. The intent is to ensure that only waste materials determined to be incidental wastes are placed in the grout facility.
12
f DRAFT The Commission continues to hold to the belief that the disposal of any defense HLW at the Hanford site would be subject to its licensing authority.
Dated at Rockville, Maryland this day of
,1991.
For the Nuclear Regulatory Commission Samuel J. Chilk Secretary of the Commission 23
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'7,
'f OCT 2 9 rgg; (e
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^
t MEMORA!!DUM TOR:
List of Addressees j-g 9
O FROM:
Mel Silberberg, Chief Waste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Research
SUBJECT:
DRAFT FEDERAL REGISTER NOTICE OF DENIAL Of PETITION (PRM-60-4)
Enclosed for your review and comments is a revised draft federal Register notice for the denial of the petition of rulemaking from the States of Washington and Oregon (PRM-60-04). An earlier draf t was issued on July 22, 1991.
Comments and input to the July 22, 1991 draft have been provided by J. Wolf, OGC; and by D. Fehringer and P. Altomare, HLWM.
Please let us have your comments by November 12, 1991 so that we can finalize the notice and prepare the Commission Paper package.
If you have any questions, please contact N. S. Tanious on x23878.j/
p p-p f2 ;
Mel Silberberg, Chief Waste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Applications
Enclosure:
As stated cc:
P. Altomare, NMSS D. Fehringer, NMSS C. Glenn, EDO J. R. Wolf, OGC Distribution:
Subj/ Circ /Chron, Morris, Costanzi, Silberberg, Randall, Tanicus, WMB Rdg/ Circ, (Memo name: G:\\ Groups \\DRA\\WMB\\ memo.nt)
(Enclosure name:
G:\\ Groups \\DRA\\WMB\\HNFRDPET.WP)
- SEE PREVIOUS CONCURRENCES k(DRA:WMB DRA:WMB DRA:WMB
- /Silberberg
- Tanicus
- Randall 10/28/91 10/28/91,
10/)7/91 i
bf Qt f20 % 0250
List of Addressees:
For memo dated 0 0 7 9 e 7? ?;.
Stuart A. Treby, Assistant General Counsel for Rulemaking and fuel Cycle Office of the General Counsel David L. Meyer, Chief Regulatory Publications Branch Division of freedom and Publications Services Office of Administration Carlton C. Kammerer, Director State Programs Office of Governmental and Public Affairs Joseph J. Holonich, Acting Director Repository Licensing and Quality Assurance Project Directorate Division of High-Level Waste Management Office of Nuclear Material Safety and Safeguards John H. Austin, Chief Decommissioning and Regulatory 1ssues Branch Division of low-level Waste Management
& Decommissioning Office of Nuclear Material Safety and Safeguards
NUCLEAR REGULATORY COMMISSION 10 CFR PART 60 i
DOCKET NO. PRM-60-4 STATES OF WASHINGTON AND OREGON; DENIAL OF PETITION FOR RULEMAKING AGENCY:
Nuclear Regulatory Commission ACTION:
Denial of petition for rulemaking
SUMMARY
- The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-60-4), submitted by the States of Washington and Oregon, which deals with the classification of radioactive waste materials at defense reprocessing facilities.
l l
ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Naiem S. Tanicus, Office of Nuclear j
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington D.C.
20555, telephone (301) 492-3878.
i SUPPLEMENTARY INFORMATION:
I.
THE PETITION On December 17, 1990 the Nuclear Regulatory Commission published a notice of receipt of a petition for rulemaking from the States of Washington and Oregon (55 FR 51732).
The petition requested that the Commission revise the definition of "high-level radioactive waste" (HLW) so as to establish a-procedural framework and substantive standards by which the Commission will determine whether reprocessing waste, including in particular certain waste stored at the U. S. Department of Energy's site at Hanford, Washington, is HLW and therefore subject to the Commission's licensing authority.
The petitioners request that the Commission amend 10 CFR 60.2 to clarify the definition of HLW and the definition of "HLW facility." The petitioners request that the Commission-
- 1. Establish a process to evaluate the treatment of defense reprocessing wastes in tanks so that such wastes will not be considered HLW if, prior to disposal, each tank is treated to remove the largest technically achievable amount of radioactivity; and
- 2. Require that the heat produced by residual radionuclides, together with the heat of reaction during grout processing (if employed as a treatment
)
technology) will be within limits established to ensure that grout meets temperature requirements for long-term stability for low-level waste forms.
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1 The petitioners state that this rulemaking is based, in part, on section 202 of.the 1974 Energy Reorganization Act, which provides for the Commission-to exercise licensing and related regulatory authority over facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by DOE which are not used for, or are part of, research and development activities.
According to the petitioners, legislative history reveals that Congress
,s Uh,. 2 intended the Commission to license defense reprocessing tank wastes at the C'
point of long-term storage or disposal. The petitioners note that low-
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k'b fraction wastes resulting from pretreatment of tank wastes are sche ~diiTed to be
@ ~ grouted and~ disposed of in land-based grout vaults on the Hanford site in accordance with regulations developed under the Resource Conservation and Recovery Act (RCRA). The petitioners believe that if such wastes are HLW, e
they clearly fall under the Commission's licensing jurisdiction under section 202(4) of the Energy Reorganization Act of 1974,42USC584g(4).
The petitioners acknowledge that the present definition of HLW in the Commission's regulations is based upon the source of the waste, and that such
" incidental waste" as may be generated in the course of reprocessing is not HLW.
(The latter point is evident from the proposal to amend 10 CFR Section 60.2 to provide that a residual fraction would be " considered an incidental waste and therefore not HLW.") The petitioners claim, however, that wastes stored in tanks at Hanford cannot practicably be classified as
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incidental waste (as opposed to HLW) because of mixing inQe_fenselankstand the unavailability of accurate records.
Moreover, the petitioners state that radionuclide inventories are estimates and subject to substantial uncertainty.
The petitioners assert that neither DCE, the Commission,_nor the petitioners have adequate information regarding the source and composition of the tank waste. The petitioners believe that the Commission needs to establish both a procedure and a standard for making an evaluation as to whether wastes are HLW on a tank-by-tank basis.
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The petitioners assert that the proposed amendment is essential to provide protection of the future health and safety of the citizens of the Pacific Northwest.
- 11. CLASSIFICATION OF 00E REPROCESSING WASTES At Savannah River, West Valley, and Hanford, questions have arisen regarding the classification of reprocessing wastes for which DOE must provide disposal.
In the long-standing view of the Commission, such questions must be resolved by examining the source of the wastes in question. The reason for 3
i this is that when Congress assigned to NRC the licensing authority over certain DOE facilities for storage (and disposal) of "high-level radioactive wastes," it was referring to those materials encompassed within the meaning of the term "high-level radioactive waste" in Appendix f of 10 CFR Part 50. (For a full statement of this position, see the discussion at 52 FR 5993, February 27,1987). Accordingly, any facility to be used for the disposal of "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes' from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels" - as "high-level liquid radioactive wastes" is defined in 2
1
Appendix F - must be licensed by the NRC. Most of the waste storage tanks at Savannah River, West Valley, and Hanford contain wastes meeting this definition, and the facilities to be used for disposal of these wastes are therefore potenti.lly subject to NRC licensing jurisdiction.
However, when the Appendix f definition was promulgated, the Atomic Energy Commission specifically noted that the term HLW did not include
" incidental" waste resulting from reprocessing plant operations such as ion exchange beds, sludges, and contaminated laboratory items, clothing, tools, and equipment. Neither were radioactive hulls and other irradiated and contaminated fuel structural hardware encompassed by the Appendix F definition. Under the same reasoning, as the Commission has previously indicated, incidental wastes generated in further treatment of HLW (e.g.,
decontaminated salts or miscellaneous trash from waste glass processing) would be outside the Appendix f definition.
In the cases of Savannah River and West Valley wastes, DOE plans to retrieve the wastes from their storage tanks and to separate essentially all of the radioactive materials for eventual disposal in an HLW repository. At these facilities, the decontaminated salt residues are to contain only trace levels of radioactive contamination. Accordingly, that projected recovery of HLW from the wastes in tank storage at those sites will be sufficiently complete that the decontaminated salts and other residual wastes should be appropriately classified as " incidental" (i.e., non-HLW).
The NRC will have no licensing authority over the DOE facilities to be used for disposal of such
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wastes.
%'I At Hanford, DOE plans to process stored double shell tank wastes in a manner that is conceptually the same as at Savannah River and West Valley.
Most of the radioactive constituents of the wastes would be separated for eventual' repository disposal and the residual decontaminated salts would be disposed of on site in a concrete-like grout f acility.
(Plans for processing
'/.
of single shell tank wastes are still under development.) However, classification of the Hanford double shell tank wastes has proven more problematical than did classification of Savannah River and West Valley wastes. At Hanford, many of the primary reprocessing wastes were generated using older separation technologies, which resulted in substantial dilution of y
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those wastes with non-radioactive materials.
For technical and economic I,A(,*Steasons, it may be unreasonable to try to achieve the same degree of recovery of radioactive materials at Hanford that DOE projects to be achievable at
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Savannah River and West Valley.
In addition, many of the tanks at Hanford contain mixtures of wastes-from both reprocessing sources and other sources, s
finally, record keeping at Hanford was not always thorough enough to allow precise determinations of the origins of waste now present in specific tanks at Hanford.
For these reasons, some of the Hanford tank wastes cannot be readily classified as either HLW or incidental wastes using only the definitions and concepts discussed above.
Because of the factual uncertainties and their implications with respect to NRC jurisdiction, the NRC staff and DOE held several meetings to explore the situation in detail. A principal objective of the parties was to ascertain, to the extent practicable, whether some or all of the wastes should be regarded as HLW and whether, on the other hand, some or all of the wastes should be classified as non-HLW. Several things became clear as a result of 3
f g
these meetings.
First, management records were adequate for DOE to determine that two
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4 double-shell waste tanks contain wastes from sources other than reprocessing of reactor fuels. Therefore, these wastes clearly do not contain HLW within p.y J
the Appendix F definition.
The NRC agreed with DOE that any disposal facility 9
intended exclusively for these wastes would not be subject to NRC licensing V
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authority.
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Second, DOE has carried out a "mJss_ba)ancg" analysis of waste management d activities at Hanford. This analysis determined the total amount of "first q
cycle reprocessing wastes" generated at Hanford and, to the extent practical, the current location of those wastes. DOE also estimated that the amount of c/
radioactive material expected to be recovered for repository disposal would be j. q.
nearly as large as the inventory of reprocessing waste cricjinally generated.
I( f,' v' J The proposed on-site grout disposal of the residual waste from the double-9 shell tank waste processing would be only a very small fraction of the s
reprocessing wastes originally generated at the site. (On-site disposal of at t single-shell tank wastes, if pursued by DOE, would represent a larger fraction of the total waste inventory generated).
Finally, DOE agreed to study possible technologies for additional waste processing, and to use such technologies to remove the largest reasonably achievable amount of radioactive material from any double-shell tank wastes to be disposed of in on site grout facilities. This commitment by DOE to remove the largest reasonably achievable amount of radioactive material, coupled with the mass-balance study indicating that a large fraction of the originally generated radioactive material would be recovered, led the NRC staff to,
conclude that the residual waste material after processing of double 'shell tank wastes (which, under the criteria in 10 CFR Part 61, would be considered suitable for shallow land burial) should be classified as incidental waste, i.e. a waste incidental to the process of recovering HLW from tank wastes for disposal in the repository. With this classification, DOE could proceed with on site disposal in a grout f acility without licensing by the NRC.
It should be noted that the appropriate classification of some Hanford wastes remains to be determined--specifically any single-shell tank wastes that 00E might decide to dispose of on-site, and any empty but still contaminated waste tanks DOE might dispose of in place.
For both types of wastes the residual levels of radioactive materials may be larger than for the decontaminated double shell tank waste residues, and a case-by-case determination of the appropriate waste classification might be necessary.
111. DISCUSSION The petition for rulemaking presents two basic issues. The question is not whether or not "high-level waste" should be interpreted by reference to the source-based concepts derived from Appendix f to 10 CFR Part 50: even the
)
petitioner agrees that this is proper. Nor is there any fundamental challenge to the concept that " incidental wastes" are excluded from the definition of "high-level waste." lhe issues are much narrower ones. The first is a substantive one - the criterion to be applied in differentiating incidental waste from high-level waste. The second issue is a procedural one - the process that should be employed by the Commission in arriving at a judgment 4
i w". ether or not it has jurisdiction over particular facilities. These will be addressed in turn.
A. The Standard for Classification We first consider the standard proposed by petitioners for distinguishing high-level waste from incidental waste. Under this standard, applied on a tank-by-tank basis, wastes would be considered to be high-level waste unless they have been treated, prior to disposal, "to remove the largest technically achievable amount of radioactivity." Since this is not the concept embodied in Appendix F to 10 CFR Part 50 (and, hence, Section 202 of the Energy Reorganization Act), it is inappropriate.
Rather, under Appendix F, it is anticipated that incidental waste streams will be generated in addition to the primary solvent extraction wastes; and there is no suggestion that further steps be undertaken to remove (and treat as HLW) "the largest technically achievable amount of radioactivity" therefrom.
Although Appendix F does not require separation of the largest technically achievable amount of radioactivity, it does contemplate a degree of separation consistent with the technology for fuel reprocessing that was available at the time of its adoption. Although Appendix F itself is silent, the contemporaneous views of the Atomic Energy Commission with respect to management of the AEC's defense wastes shed light on the principles that should apply. These views appear in AEC Manual Chapter 0511, called to our attention by one of the commenters, which reflects a policy of controlling the release of radioactive materials to the lowest levels " technically and l
economically practical." Although this policy refers to control of releases rather than stages in the waste management regime, it is not unreasonable to view it as applying to the latter as well.
In determining whether reprocessing wastes remain HLW or not, therefore, one appropriate question is whether the quantities of radioactive materials have been reduced to the lowest levels that are " technically and economically practical." At an August 4, 1989 meeting with the States of Washington and Oregon and the Yakima Indian Nation, DOE presented the results of a study of the cost-effectiveness of various waste processing alternatives.
(Minutes of the meeting are available for public inspection in the NRC Public Document Room.) DOE's " baseline" disposal plans would have recovered all but about 12-13 million curies of cesium-137. DOE's study of the cost-effectiveness of further processing indicated that an additional 6 million curies of cesium-137 could be economically removed for repository disposal. However, efforts to further recover cesium-137 or other radionuclides for repository disposal would involve substantial increases in costs; and the NRC staff agreed that such costs appeared to be unreasonably high.
The staff was concerned, nevertheless, that even the degree of separation proposed by DOE might not satisfy the underlying policies of Appendix F to 10 CFR Part 50.
(In legalistic terms: although those aqueous wastes resulting from the extraction cycles would be converted to dry solids to be transfered to a geologic repository, the " extraction cycles" themselves might not achieve sufficient recovery to carry out the regulatory objectives.) While there is no particular quantitative criterion in Appendix F, clearly it was the goal to remove the great bulk of the hazardous radioactive material to a repository.
In response to the NRC staff concern, DOE developed a material balance 5
S that demonstrated (albeit on the basis of incomplete records) that nearly all of the radionuclides in the original spent fuel would be extracted or would have decayed. The amount of residual radioactive material in DOE's " baseline" plans would have constituted only about 3-5% of the radioactive material originally generated at the site, and with the additional cost-effective processing identified by DOE, the residual activity level would be reduced to about 2-3% of that originally generated. This showing alone might have sufficed. However, the staff went further: in order to conclude that the Commission's policies were faithfully implemented, the staff wanted to make sure that whatever remained in DOE's custody was capable of being handled in a manner that presented no unreasonable risk to the health and safety of the public. Fortunately, there are some benchmarks for making the necessary judgments - in particular, the Commission's technical requirements for land disposal facilities (for Class A, Class B, and Class C low-level radioactive wastes) as set out in 10 CFR Part 61. The radionuclide concentrations to be achieved by DOE are well within the relevant limits of Part 61.
In addition, the waste volumes and the total radioactive inventories anticipated to be generated by DOE appear to be comparable to those characteristic of other low-level waste disposal sites.
To summarize: the staff considered that (1) DOE proposed to do all that was technically and economically practical, (2) that DOE would in fact remove the aqueous wastes resulting from the extraction processes to a geologic repository, and (3) that any wastes that were not thus removed could be disposed of in a manner that would present no unreasonable risk to the health and safety of the public.
On the basis of these judgments, the staff concluded that the policies set out in Appendix f to 10 CFR Part 50 were satisfied, that the high-level radioactive waste (within the meaning of the Reorganization Act) would be removed from the site, and that any radioactive material remaining on site would not be high-level radioactive waste subject to NRC's licensing jurisdiction.
B. Procedural issues
- 1. Whether Rulemakina is Necessary and Desirable The petitioners urge that the Commission should initiate rulemaking procedures that would result in the establishment of substantive criteria for determining whether particular radioactive wastes either are or are not high-level waste. Generally, a decision whether to proceed by rulemaking (as requested) or to make determinations in individual, ad hoc litigation lies within the informed discretion of the cognizant administrative agency.
Rulemaking is most appropriate where an agency seeks to establish a general principle, having prospective effect, to be applied in a wide variety of factual contexts. Where the issue before an agency involves the application of law to a very specific existing fact situation -- and especially where that situation is not representative of other matters that may need to be decided by the agency -- then it is clearly more efficient and more to the point to decide by a process of adjudication (i.e., on a case-by-case basis).
Applying these principles to the petition at hand, the Commission has little difficulty in concluding that rulemaking is neither necessary nor desirable.
Reprocessing wastes from defense activities are located at only four principal locations in the United States. The Commission has previously 6
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9 determined that the residual contamination anticipated from proposed operations at Savannah River should be characterized as incidental waste and not high-level weste. [D0E/EIS-0023, Nov.1979, and 52 FR 5993, Feb. 27, 1987]. Defense wastes generated at the Idaho Chemical Processing Plant are l
markedly different from those at Hanford and Savannah River; so that if questions about classification of the Idaho wastes should arise, precedents established at Savannah River and Hanford would be difficult to apply. Any defense wastes at the Western New York Nuclear Service Center will require treatment in accordance with the applicable provisions of the West Valley Demonstration Project Act.
The limited practical effect of the decision - i.e., restricted to Hanford - is reason enough, we believe, to proceed by way of adjudication instead of rulemaking.
But we are persuaded, further, by the need to avoid making premature decisions with respect to the wastes stored at Hanford in single-walled tanks that are not the subject of pending treatment plans.
If we were to establish rules to apply to the wastes in those tP7ks, our inquiry would have to be greatly broadened; and it might become necessary to consider a wide range of factual situations that might or might not ever come to pass in the future.
- 2. Whether the Commission Is Adeauately informed Petitioners suggest that their proposed procedures, which include detailed tank-by-tank assessments, are necessary to ensure confidence in the treatment process fully employed by DOE and to building confidence that the treatment standard is being met.
The issue to be decided by the Commission is a much narrower one: it is merely to determine whether the activities being undertaken by the Department of Energy fall within the NRC's statutory jurisdiction. As in the case of other persons whose activities may fall within our regulatory sphere, the Commission may from time to time demand information so as to be able to determine whether or not to initiate an enforcement action. The NRC staff has acted in this manner in its inquiries to DOE.
It has obtained and evaluated information that is relevant and material to a determination whether or not the proposed activities of the DOE are subject to NRC licensing jurisdiction.
(And, all the information so obtained and evaluated has been made available contemporaneously to the public.)
If a standard of " largest technically achievable amount... will be isolated" were to be applied, then the facts submitted by DOE might not be sufficient to conclude that NRC lacked jurisdiction, But the proper standard includes considerations of economical practicality as well. As indicated in an earlier part of this decision, the Commission has obtained the information that is needed to apply this standard in the case of the double-shell tank waste and so the procedures proposed by the petitioners will not be required.
- 3. Future Ad.iudications The petitioners contemplate that if a rule were to be adopted in accordance with their proposal, particular determinations of how specific wastes would be characterized would be "left to individual adjudicative prcceedings." We infer that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of the Atomic 7
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Energy Act, as amended, 42 USC 2239. Adjudications in such proceedings are in some cases to be conducted in accordance wit'i the hearing provisions of Subpart L of 10 CFR Part 2.
Such procedures are appropriate with respect to activities that are subject to NRC regulatory and licensing authority. But we are reluctant to employ them in the context that is proposed - to determine if NRC has jurisdiction; such scrutiny of DOE activities might be seen as an unwarranted intrusion into a sphere which Congress has determined is not of regulatory concern to this agency. Moreover, if we were to find that the adjudications were properly to be regarded as Section 189 proceedings, we would not be able to undertake them, inasmuch as NRC is barred from using any appropriated funds "for any purpose related to licensing of any defense activity or facility of the Department of Energy." 42 USC 7272.
f
- 4. Other Considerations While both NRC and DOE have focused their attention upon the meaning of the statutory term "high-level waste" and its application to the materials in
[N'g storage at Hanford, other considerations might come into play in determining whether or not DOE activities are subject to licensing.
In particular, it i
should be recalled that NRC exercises licensing authority only as to
" facilities authorized for the express purpose of subsequent long-term storage of [ DOE-generated] high-level waste." The content of individual waste tanks 1ofthetreate~ waste'aresubjecttolicensino.is by no means dispositive of the questio d
A number of other factors
[mightneedtobeexamined: (1) what are the limits, geographically and i
functionally, of facilities"; (2) have those facilities been " authorized" Lj (and by whom is such authorization required); and (3) have those facilities been authorized "for the express purpose of subsequent long-term storage of high-level waste" where those who may authorize the facility make no express mention of high-level waste.
It is not necessary for the Commission to l
address these questions in order to dispose of the pending petition.
IV. PUBLIC COMMENTS ON THE PETITION The NRC received comment letters frr..
-.menters. Two letters were
_s from other federal agencies, two were fr pu9 "
interest groups, one was from a nuclear industry corporation, and aver sere from private individuals.
Most comments were opposed to the petitim A. Process and Standards Proposed in Petition Several comments expressed concern that granting the petition would have an adverse effect on the timely disposal of radioactive waste at Hanford.
This was a concern as many of the Hanford waste tanks were seen as nearing or exceeding their design life. The provisions of the rulemaking proposed in the petition were viewed as limiting DOE's flexibility in selecting the most effective processes for waste treatment and disposal.
The petition's request that "best available technology" be used in removing HLW material from the tank wastes was seen as ignoring costs of disposal, exposures' to workers, and environmental impacts.
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L Some comments disputed the petition's claim that the rulemaking proposed in the petition would offer a better process for classification and disposal of the Hanford tank wastes. These commenters did not see any advantage in the proposed process over the process for classification and disposal currently in One comment suggested that the Commission's rulemaking requiring s
use.
disposal of Greater-than-Class C waste in a geologic repository or Commission 'iv.
approved alternative (53 FR 17710, May 19, 1989) might force DOE to allocate -" ~
resources to handle the hazards, rather than to waste further time fruitless. j/
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searching for ways to remove more and more activity from one part of the waste. The action proposed by the petitioners was viewed as not increasing the safety of disposal of the waste.
The Commission believes that adherence to the standard of technical and economic practicality generally reflects agreement with these comments.
B. Creation of a Risk Based Classification System f
Several comments, while noting that the rulemaking proposed by the petition would not do so, favored creation of a risk-based system of radioactive waste classification.
The Commission has previously addressed the costs and benefits of creating a new system of radioactive waste classification.
Its rationale for not doing so is outlined in the statement of considerations to the proposed Part 61 rulemaking on disposal of Greater-than Class C waste (53 FR 17709, May 18, 1988).
Further consideration of these issues is beyond the scope of the.4 L,,
\\ present rulemaking action.
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C. NRC Licensino Authority Some comments focused on the licensing authority of HRC over the Hanford tank wastes. DOE stated that the rulemaking suggested in the petition would involve NRC in regulation of DOE's predisposal waste treatment and processing activities, which would be inconsistent with NRC authority to license specific DOE facilities under the ERA. Another commenter stated that the proposed rulemaking was inconsistent with the statutory responsibilities of DOE and NRC.
These arguments have already been discussed, above, and require no further response.
A commenter concluded that DOE was currently in violation of 10 CFR Part 30 requirements for a license because various near surface waste disposal facilities at Hanford are being used for "long-term storage" of high-level radioactive waste. The issue is not pertinent to the subject matter of the petition.
However, in any case, the comment does not take into consideration the judicial interpretation of the term in Natural Resources Defense Countjj, Inc. v. U.S. Nuclear Reaulatory Commission, 606 F.2d 1261 (D.C. Cir.,1979).
D. Public Inout A number of comments stressed the importance of adequate public input into decision making regarding disposal of the Hanford tank wastes.
Some called for public hearings on this subject to be held in the Pacific Northwest.
One commenter noted that the EIS which was done for Hanford 9
provided the opportunity for public comment.
Another commenter believed that the Commission's rulemaking procedures did not offer the public a better opportunity for input than does the current licensing procedure.
As indicated in the Disctusion, above, the NRC's review of the situation with respect to the double-wa' led tanks has been carried out publicly from the start. Meetings with DOE havi been open, and at least one of the petitioners (the State of Washington) hat been provided advance notice and an opportunity to attend. Documents have boen placed in the Public Document Room and have been available for public in pection.
It appears to the Commission that the nub of the issue concerns it appropriate standard for evaluating whether certain wastes should be re arded as high-level waste or not. Sufficient factual information is ava' f able to carry out such evaluations. And thqsg s,[h_presentrulemakingactivit has afforded an opportunity for views to be y <,yf >
expressed with respect to the appropriateness of the standa'rd.
A decision that NRC lacks licensing jurisdiction does not mean that opportunities for public input will be denied. As DOE undertakes its waste management activities, it will afford such opportunities to the extent required by its own enabling statutes, regulations, and orders.
E. Other Comments One commenter took exception to the petition's claim that the radioactive inventory of the Hanford tank wastes was inadequately known.
The commenter believed that the contents of the tanks can be bounded well enough to judge the relative safety of various disposal options.
The Commission considers the available information to be sufficiently bounded to enable it to conclude that DOE's proposed operations (with respect to the material stored in the double-walled tanks) night be carried out without unreasonable risk to the health and safety of the public. The information is sufficient, as well, to determine that those operations can result in the removal from Hanford of as much of the radioactive waste as may be technically and economically practical.
Once these judgments are made, it is not the NRC's role to judge the relative safety of various disposal options, and we decline to do so.
i One comment stated that while the petition was aimed solely at the Hanford tank wastes, its provisions would affect all radioactive wastes from reprocessing, including those at Savannah River, West Valley, and the Idaho National Engineering Laboratory. As the waste management programs at these other sites are in different stages of implementation, the impacts of the provisions would vary from site to site.
As indicated above, the Commission is sensitive to this consideration and has adopted it as one reason to deny the petition for rulemaking.
Some comments urged the Commission not to change the present definition of HLW.
No such change is being made by the Commission.
V. CONCLUSION 10
The petition for rulemaking is denied.
Dated at Rockville, Maryland this day of
, 1991.
For the Nuclear Regulatory Commission l
1 Samuel J. Chilk Secretary of the Comission r
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