ML20057B650
| ML20057B650 | |
| Person / Time | |
|---|---|
| Issue date: | 11/07/1991 |
| From: | Meyer D NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Silberberg M NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML20057B646 | List: |
| References | |
| FOIA-93-156 NUDOCS 9309230070 | |
| Download: ML20057B650 (23) | |
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ih WASHINGTON, D.C. 20%5 NOV 7
22.
nu NEMORANDUM FOR: Nel Silberberg, Chief D "t Maste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Research FROM:
David L. Meyer, Chief Regulatory Publications Branch Division of Freedom of Information and Publications Services Office of Administration
SUBJECT:
REVIEW 0F DRAFT DENIAL OF THE PETITION FOR RULEMAKING FILED BY THE STATES OF WASHINGTON AND OREGOM (PRM-60-4)
The Regulatory Publications Branch has reviewed the draft denial of a petition for rulemaking prepared by your office in response to PRM-60-4.
We have attached a marked copy of the notice of denial which presents editorial and format changes.
We have added a sentence to the sumary paragraph that explains why the the Comission is denying this petition for rulemaking. The notice of denial presents a thorough discussion of the issues raised by the petition for rulemaking and sufficiently addresses the coments received in response to the notice of receipt of the petition. However, we request that a statement be added to the statement of denial that sumarizes the Commission's reasons for denying this petition.
If you have any questions regarding our coment, please contact Michael T.
Lesar on extension 27758 or Alzonia Shepard on extension 27651.
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David L. Heyer, Chief Regulatory Publications Branch Division of Freedom of Information and Publications Services Office of Administration
Attachment:
As stated i
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AGENCY:
Nuclear Regulatory Commission.
A ACTION:
Denial of petition for rulemaking.
A
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 4+-r e &. drim. u a o/Hp'Zses/k,4,f,./<c//> 4e g % se Mra.,A.uf,4vsafsW reprocessing facilities. 74 4.rA r o av3 pusei,v enkn.va n, m.4 -
ADDRESSES: Copies of the petition for rulemaking, the public comments ym 4,m received, and the NRC's letter to the petitioner are available for public jgg,.,g inspection or copying in the NRC Public Document Room, 2120 L Street, NW3 % sf, (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACl: Naiem S. Tanious, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington D k 20555, telephone (301) 492-3878.
SUPPLEMENTARY INf0RMA110N:
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1.
On December 1990,qthe Nuclear Regulatory Commission published a notice
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of receipt of a petition for rulemaking from the States of Washington and
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Oregon (55 FR 51732). The petition requested that the Commission revise the definition of "high-level radioactive waste" (HLW) so as to establish a gr' 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 tha 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 tetperature requirements for long-term stability for low-level waste forms.
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A.
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The petitioners state that this rulemaking is based, in part, on section f
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 intended the Comission 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
[./pjC Recovery Act (RCRA). The petitioners believe that if sueK W3Tt1T are HLW, L
they clearly fall under the Commission's licensing jurisdiction under section 202(4) of the Energy Reorganization Act of 1974, 42 USC 584 2(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 seetr- #7
" incidental waste" u my be generated in the course of reprocessing is not HLW.
(The latter point is evident from the proposal to amend 10 CFR ectiorp60.2 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 incidental waste (as opposed to HLW) because of mixing in defense tanks and the unavailability of accurate records. Moreover, the petitioners state that radionuclide inventories are estimates and subject to substantial uncertainty.
The petitioners assert that neither 00E, 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.
i 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.[ASSiflCATION[F00ERdR0CESSINGWAtTESee At Savannah River, West Valley, and Hanford, questions have arisen regarding the classification of reprocessing wastes for which D0f must provide b M disposal.
In the long-standing view of the Commission, we questions must be \\_
resolved by examining the source of the w stes in question. The reason for this is that when Congress assigned'to NP he licensing authority over certain D,QLfacilities for/ storage (and disposal) of "high-level radioactive waste "Ait was referring to those materials encompassed within the meaning of erm "high-level radioactive waste" in Appendix f of 10 CFR Part,5_0_.lfor a full statement of this position, see the discussionA(52 FR 5993; FebruaFAN 27,1987)). Accordingly,anyfacilitytobeusedforJhedisposalof"those t/
aqueous wastes resulting from the operation of the fi/rst cycle solvent extraction system, or equivalent, and the concentratfd wastes from subsequent reactor fuels" - as "high-level liquid radioactive p/ reprocessing irradiated extraction cycles, or equivalent. in a facility for astes" is defined in
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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 potentially 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 miscellanecas trash from waste glass processing) would be outside the Appendix F oefinition.
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 sectr-UN/ t 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.
Host 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.
At Hanford, many of the primary reprocessing wastes were generated using older separation technologies, which resulted in substantial dilution of those wastes with non-radioactive materials.
For technical and economic reasons, 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 Savannah River and West Valley.
In addition, many of the tanks at Hanford contain mixtures of wastes from both reprocessing sources and other sources.
Finally, recorOeeping 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
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these meetings.
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 agreed with DOE that any disposal facility intended exclusively for these wastes would not be 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 larger fraction of the total waste inventory generated).
Mc finally, DOE agreed t study possible technologies for additional waste processing, and to use su 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 concludethattheresidualwastematerialafterprocessingofdouble-3 hell 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 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 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.
III.D[SCUSSIONg The petition for rulemaking presents two basic issues.
The question is not whether or not "high-level waste" should be interpreted by reference to thesource-basedconceptsderivedfromAppendixfto10CFRPartSqpeventhe petitioner agrees that this is proper. Nor is there any fundamental ihallenge to the concept that " incidental wastes" are excluded from the definition of
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- high-level waste." The 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 i
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whether or not it has jurisdiction over particular facilities. These will be addressed in turn.
A. The Standard for Classification--
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. [WeJestconsiderjthestandardproposedbypetitionersfordistinguishing
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' hkh-evel 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 f},m,y achievable amount of radioactivity." 5+ne( 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 stre will be generated in addition to the primary solvent extraction waste Q e d here is no suggestion that further steps be undertaken to remove (and treat s HLW) "the largest technically achievable amount of radioactivity." (therefromP---
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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 g onomically practical." Although this policy refers to control of releases rather than stages in the waste management regime, it is not unreasonable to l
view it as applying to the latter as well.
l In determining whether reprocessing wastes remain HLW or not, th w ef =, 6 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 3
Oregon and the Yakima Indian fiation, DOE presented the results of a study of J
the cost-effectiveness of various waste processing alternatives.
(Minutes of the meeting are available for public inspection in the fiRC 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.
lowever, efforts to further recover cesium-137 or other radionuclides for repository disposal 4
would involve substantial increases in costs ( and the fRC staff agreed that, d nevertheless, that even the degree of separation proposed by DOE might T he 4tM was
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- w d costs appeared to be unreasonably high.
satisfy the underlying policies of Appendix F to 10 CFR Part 50.
(In legalistic termsgahqhose 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 i
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.
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In response to the f4RC staf f concern DOE developed a material balance 5
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y that demonstrated (albeit on the basis of incomplete records) that nearly all of the radionuclides inj 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 sitep and with [he additional cost-effective processin identified by DOE, thB residual activity level would be reduced to about_2-of that orig' ally generated.
This showing alone might have suf ficed. However, the went furtherDTn order to conclude that the
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d,e Commission'spolicieswerefaithfullyimplhmented,thestaffwantedtomake r
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.
N f4/n OGA yp Eaff considered that (1) 00E proposed to do all that
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u-4+e rti% the was technically and economically practical, (2) N 4 DOE would in fact remove m /c b the aqueous wastes resulting from the extraction processes to a geologic a
repository, and (3) tht-any wastes that were not the removed tcouto oe i jt c/",,ff j
,p disposed of in a manner that would present no unreasonable risk to the healttt and safety of the public.
On the basis of these judgments, the Wgfc concluded that the policies set out in Appendix f to 10 CFR Part 50 were satisfied, W 4 the high-level radioactive waste (within the meaning of the M / Reorganization Act) would be removed from the site, and t4t any radioactive material remaining on site would not be high-level radioactive waste subject to NRC's licensing jurisdiction.
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B. procedural issues
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- 1. Whether Iulemakino is Necessary and J[esirable O The petitioners urge that the Commission shcd d Qn'tiate rulemaking i
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 f act situation ThM especially where that situationisnotrepresentativeofothermatters3hatmayneedtobedecided by the agency -- then it is clearly more efficient and more to the point to decide by a Trocess 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 i
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l determined that the residual contamination anticipated from proposed operations at Savannah River should be characterized as incidental waste and not high-level waste. [D0E/EIS-0023, Nov.1979, and 52 FR 5993! feb. 27, 1987). Defense wastes generated at the Idaho Chemical Processing Pl nt areM" f',"
A markedly different from those at Hanford and Savannah River 4 m-Wt 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.
rR.14f/ k4WJ /As/ /N The limited practical effect of the decis' n - i.e, restricted to a
Hanford-isreasonenough,@ebelieV,[opr eed by y of adjudication e
instead of rulemaking.
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further by the need to avoid makingprematuredecisionswithrekpersuadedpect to the wastes stored at Hanford in g pgle-walled tanks that are not tt e subject of pending treatment plans.
If ie were to establish rules to apply to the wastes in those tanks, our inquiry would have to be greatly broadened and it might become necessary to consider a wide range of factual situation that might or might nOver come to pasg y w wro Qyg gxc j; K
- 2. Whether the Commission /s A[ouately AIformed 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 confid treatment standard is being met.
yh The issue to be decided by the Commission is a much narrower oneo me si,7 tu 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
%eproposedactivitiesoftheDOEaresubjecttoNRClicensingjurisdiction.
th pl the information Wobtained and evaluated has been made available contemporaneously to the public.)t 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, M the proper standard includes considerations of economical practicality as wdll. As indicated in an earlier part of this decision, the i
Commission has obthined the information that is needed to apply this standard in the case of theldouble-shell tank waste and so the procedures proposed by thepetitionerswillnotberequired.
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. o 3.FutureA'diudications-)
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The petitioners contemplate thataif 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 proceedings." A infer that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of the Atomic h
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Energy Act, as amended, 42 USC 2239. Adjudications in proceedingfarein some cases to be conducted in accordance with the hearing provisions of
.4 Subpart L of 10 CFR Part 2.
g, pt C 7h o t Mi procedures are appropriate with respect o activities that are subject to NRC regulatory and licensing authority. " " ^ ^ w reluctant to employ them in the context that is proposed - to determine if NRC has jurisdictior(d scrutiny of DOE activities might be seen as an unwarranted intrusion into a s here which Congress has determined is not of regulatory 1-4 j/d concern to Moreover, if we were to find that the adjudication 5 h
fc were properly to be regarded as Section 189 proceedings, w(woulo not ui: 4bitT to undertake them, i m = 9 oe NRC is barred from using any appropriated funds "for any purpose relhted to lic nsing of any defense activity or facility of the Department of4 Endrgy. " 42 C 7272.
4.Other[ onside tonsg M """
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 storage at Hanford, other considerations might come into play in determining whether or not DOE activities are subject to licensing.
In particular, it 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 is by no means dispositive of the question whether the facilties for storage of the treated waste are subject to licensing.
A number of other factors might need to be examined: (1) what are the limits, geographically and functionally, of " facilities"; (2) have those facilities been " authorized" (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 address these questions in order to dispose of the pending petition.
IV. PUhllC CMMENTS d 15E PfilTIONQ The NRC received ee w nt 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.--pc,,<f.o.
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 exceedingtheirdesighlife.
The provisions of the rulemaking proposed in the petition were viewed a's limiting DOE's flexibility in selecting the most ef fective 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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Some comments disputed the petition's claim that the rulemaking proposed in the petition would offer a better nrocess for classification and disposal These commenters did not see any advantage in the of the Hanford tank wastes.
proposed process over the process for classification and disposal currently in One comment suggested that the Commission's rulemaking requiring disposal of Greater-than-Class C waste in a geologic repository or Commission-use.
might force DOE to allocate approved alternative (53 FR 17710; May 19, 1989)rather than to waste further time fruitless resources to handle the hazards and more activity from one part of the searching for ways to remove mor etitioners was viewed as not increasing l
The action proposed by the waste.
the saft -y of disposal of the waste.y 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 - 9 c
,,. h Several comments, while noting that the rulemaking proposed by the j petition would not do so, f avored creation of a risk-based system of radioactive waste classification.
The Commission has previously addressed the costs and benefits of Its rationale for creating a new system of radioactive waste classification.
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 Further consideration of these issues is beyond the scope of the 18,1988).
present rulemaking action, C. NRC Licensina Authority 7
Some comments focused on the licensing authority of NRC over the Hanford DOE stated that the rulemaking suggested in the petition would tank wastes.
involve NRC in regulation of DOE's predisposal waste treatment and processing activities, which would be inconsistent with NRC authority to license specific Another commenter stated that the proposed DOE facilities under the ERA.
rulemaking was inconsistent with the statutory responsibilities of DOE and NRC. These arguments have already been discussed 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 The issue is not pertinent to the subject matter of the radioactive waste.
However, in any case, the comment does not take into consideration i
petition.
the judicial interpretation of the term in Natura'i Resources Defense Council.
inc. 'v. U.S. Nuclear Regulatory Commission, 606 f.2d 1261 (D.C. Cir., 1979).
D. Public input A number of comments stressed the importance of adequate public input Some into decision making regarding disposal of the Hanford tank wastes.
called for public hearings on this subject to be held in the Pacific One commenter noted that the EIS which was done for Hanford Northwest.
9
O 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.
43.. h o hJ ' tiitrDi 7: w 9m be NRC's review of the situation with respect to t a ed tanks has been carried out publicly from the start. Meetings with DOE have been open, and at least one of the petitioners (the State of Washington) has been provided advance notice and an opportunity to tJej. Documents have been placed in the Public Document Room and have bee Ndilable for public inspection.
It appears to the Commission that the h rd F f the issue concerns the appropriate standard for evaluating whether certain wastes should be regarded as high-level waste or not. Suffici pD factual information is available to carry out web evaluations. @ he present rulemaking activity has afforded an opportu ity for views to be expressed with respect to the appropriateness of th tandard.
thn e A decision that NRC lacks licensing jurisdiction does not mean that opportunities for public input will be denied.
As 00E undertakes its waste management activities, it will afford wch opportunities to the extent required by its own enabling statutes, regulations, and rders.
" fit f.{ p (/i' 4,P' E. Other Comments -
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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) might 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 i
is not the NRC's role to judge the relative safety of various disposal options, and we decline to do so.
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 a
provisions would vary from site to site. As indicated above, the Commission
{ is sensitive to this consideration and has adopted it as one taason to deny
! the petition for rulemaking.
t Some comments urged the Commission not to change the present definition i
, of HLW.
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.o The petition for rulemaking is denied.
Dated at Rockville, Maryland this day of
, 1991.
for the Nuclear Regulatory Commission
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Samuel J. Chilk, y
i I Secretary of the Co5nission.
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NOV 15 891 MEMORANDUM FOR:
Mel Silberberg, Chief Waste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Research FROM:
John J. Linehan, Acting Director Repository Licensing and Quality Assurance Project Directorate Division of High-Level Waste Management Office of Nuclear Material Safety and Safeguards
SUBJECT:
DRAFT FEDERAL REGISTER NOTICE OF DENI AL OF PETITION In response to your October 29, 1991 memorandum, please find enclosed a markup of the draft petition.
If there are any questions, please contact Mr. Philip Altomare.
Mr. Altomare can be reached on extension 23400.
A J/O p
John J. Linehan, Acting Director Repository Licensing and Quality Assurance Project Directorate Civision of High-Level Waste Management Office of Nuclear Material Safety and Safeguards cc:
J. Wolf, OGC lb/
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NUCLEAR REGULATORY COMMISSION 10 CFR PART 60 l
DOCKET NO. PRM-60-4 STATES OF WASHINGTON AND OREGON; DENIAL OF PETITION FOR RULEMAKING
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AGENCY; Huclear 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 (LowerLevel), Washington,DC.
FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington D.C.
I 20555, telephone (301) 492-3878.
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 Comission'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 Comission-
- 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 i
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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- The petitioners state that this rulemaking is based, in part, on section 202 of the 1974 Energy Reorganization Act, which provides for the Comission 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 intended the Commission to license defense reprocessing tank wastes at the %.
point of long-term storage or disposal. Thepetitionersnotethatlow'1pst
$greetttnr 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 clearly fall under the Comission's licensing jurisdiction under section 202(4) of the Energy Reorganization Act of,1974, 42 USC 58U(4).
The petitioners acknowledge that the present definition of HLW in the Comission'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 incidental waste (as opposed to HLW) because of mixing in defense tanks and the unavailability of accurate records. Moreover, the petitioners state that radionuclide inventories are estinates and subject to substantial uncertainty.
The petitioners assert that neither DOE, the Comission, 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.
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. CLASSIFICATION OF DOE 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 Comission, such questions must be 5
resolved by examining the source of the wastes in question. The reason for 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 I
extraction system, or equivalent, and the concentrated wastes from subsequent N"
extraction cycles, or equivalent, in a facility for reprocessing irradiated a "T reactor fuels" - as "high-level liquid radioactive wastes" defined in c ha r 2
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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. ace--
tMsfac Mei+v subject to NRC licensing jurisdictionf"--if ea%nyd [w O"%
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o $ s s N pq However, when the Appendix F definition was promulgated,eess p.apde the Atomic I'
" incidental" waste resulting from reprocessing plant operations such as io
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Energy Commission specifically noted that the term HLW did not include exchange beds, sludges, and contaminated laboratory items, clothing, tools, Q ks X.
and equipment. Neither were radioactive hulls and other irradiated and r4 dCD C contaminated fuel structural hardware encompassed by the Appendix F w '5 rc -. 4 definition. Under the same reasoning, as the Commission has previously
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cV ndicated5 } incidental wastes generated in further treatment of HLW (e.g.,
idecontaminated salts or miscellaneous trash from waste glass processing) would g
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 essentiall 411
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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 wastes. (.se c 52 Fr:
27 / g 7.)
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At Hanford, 00E plans to proces,s st'u p. a tj y
ored double shell tank wastes in a manner that is conceptually the game as at Savannah River and West Valley.
Most of the radioactive constit 6ents of the wastes would be separated for eventual repos,11ory disposal an'd,the residual decontaminated salts would be disposed of ob-site in a concrete-like grout facility.O(Plans for processing
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of single shell tank wastes are)still under development.) However, 4
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 i
those wastes with non-radioactive materials.
For technical and economic reasons, 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 Savannah River and West Valley.
In addition, many of the tanks at Hanford contain mixtures of wastes from both reprocessing sources and other sources.
Finally, record keeping at Hanford was not always thorough enough to allow precise determinations of the origins of waste now present in specific tanks j
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 w:s 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
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these meetings.
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 agreed with DOE that any disposal facility intended exclusively for these wastes would not be 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 reposito'ry disposal would be nearly as large as the inventory of reprocessing waste originally generated.
The proposed on-site grouf 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 DOE, would represent a larger fraction of the total waste inventory generate Finally, DOE agreed to study possible technologies for additional waste processing, and to use such technologies to remove the largest reasonably achievable amount ofjadioactive material frqm any double-shell tank wastes to be disposed of in 06-Oite grout facilities.l /This commitment by DOE to remove
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the largest reasonabTy 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, disposal in the repositry(tpe process of recovering HLW from tank wastes for i.e. a waste incidental to
/ With this classification, DOE could proceed with on site disposal in a rout 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 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 deepntaminated double shell tank waste residues, and a case-by-case determination of the appropriate waste classification might be necessary.
III. DISCUSSION
.The petition for rulemaking presents two basic issues. The question is not.whether nr,mt "high-level waste" should be interpreted by reference to thesource-basedconceptsderivedfromAppendixFto10CFRPart50sEventhe petitioner agrees that this is proper. Nor is there any fundamental challenge 1
to the concept that " incidental wastes" are excluded from the definition of "high-level waste." The issues are much narrower ones. The first is a I
substantive one - the criterion to be applied in differentiating incidental I
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
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whether==* 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 primarysalven 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.
m4.aiTw r,ui$cn d Although Appendix F does no require separation of the largest technically achievable amount of radi=
ity, 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 Hanual 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 economically oractical." 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 detemining 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
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that demonstrated (albeit on the basis of incomplete records) that nearly all i
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, t'ne 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 jn 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.
J 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 thegawastes resulting from the extraction processes to a geologic repository, and (3) that any wastes that wure 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 i
satisfied, that the high-level radioactive waste (within the meaning of the Reorganization Act) would be removed from the site, and that any radioactive i
material remaining on site would not be high-level radioactive waste subject i
2 to NRC's licensing jurisdiction.
B. Procedural Issues
- 1. Whether Rulemakino 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 7r 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 l
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 j
little difficulty in concluding that rulemaking is neither necessary nor desirable. Reprocessing wastes from defense activities are located at only i
four principal locations in the United States. The Commission has previously 6
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determined that the residual contamination anticipated from proposed operations at Savannah River should be characterized as incidental waste and not high-level waste. [ DOE /EIS-0023, Nov.1979, and 52 FR 5993, Feb. 27, i
1987]. Defense wastes generated at the Idaho Chemical Processing Plant are 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.
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g,ited practical effect of.ther decision is lim mtde+=L*e if Th Hanford e is reason enough, we believe, to proceed by way of adjudication instea 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 tanks, 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 p
in the future. TLu f.n ; it u besT f-cmh o+w clef.we usTc.
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- 2. Whether the Comission is Adecuately Informed N
N 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 T
treatment standard is being met.
The issue to be decided by the Commission is a much narrower cne: 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 i
other persons whose activities may fall within our regulatory sphere, the 7, l Comission may from time to time demand information so as to be able toThe NRC staff has
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determine whether or not to initiate an enforcement action.
acted in this manner in its inquiries to DOE.
It has obtained and evaluated
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infonnation that is relevant and material to a determination whether or not j
the proposed activities of the DOE are subject to NRC licensing jurisdiction.
(And, all the information so obtained and evaluated has been made available
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contemporaneous 1y to the public.)
If a standard of " largest technically f
achievable amount... will be isolated" were to be applied, then the facts j
l submitted by DOE might not be sufficient to conclude that NRC lacked i
jurisdiction, $ut the proper standard includes considerations of economical i
practicality as well. As indicated in an earlier part of this decision, the
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Comission has obtained the information that is needed to apply this standard
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in the case of the double-shell tank waste {and so the procedures proposed by f r. Tech e f P4 h< p nu da /.-
m A,% =nw hT the petitioners will not be required.
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- 3. Future Adiudications retyy j
The petitioners contemplate that if a rule were to be adopted in accordance with their proposal, particular determinations of how specific 1
wastes would be characterized would be "left to individual adjudicative proceedings." We infer that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of the Atomic 4
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1 Energy Act, as amended, 42 USC 2239. Adjudications in such proceedings are in some cases to be conducted in accordance with the hearing provisions of j
Subpart L of 10 CFR Part 2.
Such procedures are appropriate with respect to activities that are k
subject to t!RC regulatory and licensing authority. But we are reluctant to Peyr employ them in the context that is proposed - to determine if NRC has u a jurisdiction; such scrutiny of DOE activities might be seen as an unwarranted O*'
intrusion into a sphere which Congress has determined is not of regulatory concern to this agency. W reover, 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.
- 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 storage at Hanford, other considerations might come into play in determining whether or not DOE activities are subject to licensing.
In particular, it should be recalled that NRC exercises licensing authority only as to
" facilities authorized for the express purpose of subsequent long-tenn storage 44 l
of [ DOE-generated) high-level waste " The content of indiv ual waste tanke af.
1s by no means dispositive of the question whether the faci es for storage of the treated waste are subject to licensing. A number of ther factors might need to be examined: (1) what are the limits, geographically and functionally, of " facilities": (2) have those facilities been " authorized" (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 address these questions in order to dispose of the pending petition.
IV. PUMIC COMMENTS ON THE PETITION j
i 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 j
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 j
t tank wastes was seen as ignoring costs of disposal, exposures to workers, and environmental impacts.
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Some coments 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 use. One coment suggested that the Commission's rulemaking requiring disposal of Greater-than-Class C waste in a geologic repository or Comission-approved alternative (53 FR 17710, May 19,1989) might force DOE to allocate resources to handle the hazards, rather than to waste further time fruitlessly 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 Comission believes that adherence to the standard of technical and economic practicality generally reflects agreement with these coments.
B. Creation of a Risk Based Classification System Several coments, 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 Comission 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 Hay 8
18,1988). Further consideration of these issues is beyond the scope of the present rulemaking action.
C. NRC Licensino Authority Some coments 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. These arguments have already been discussed, above, and require no further response.
A comenter 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 Eatural Resources Defense Council.
Inc. v. U.S. Nuclear Reculatory Commission, 606 F.2d 1261 (D.C. Cir.,1979).
D. Egblic input A number of comments stressed the importance of adequate public input I
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
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provided the opportunity for public coment. Another commenter believed that i
l the Comission's rulemaking procedures did not offer the public a better opportunity for input than does the curr it licensing procedure.
4 As indicated in the Discussion, above, the NRC's review of the situation with respect to the double-walled tanks has been carried out publicly from the start. Meetings with DOE have been open, and at least one of the petitioners (the State of Washington) has been provided advance notice and an opportunity to attend. Documents have been placed in the Public Document Room and have been available for public inspection.
It appears to the Comission that the nub of the issue concerns the appropriate standard for evaluating whether certain wastes should be regarded as high-level waste or not. Sufficient factual information is available to carry out such evaluations. And the present rulemaking activity has afforded an opportunity for views to be expressed with respect to,the appropriateness of the standard.
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 comenter took exception 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 Comission 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) might 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.
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 Comission 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 j
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The petition for rulemaking is denied.
Dated at Rockville, Maryland this day of
, 1991.
For the Nuclear Regulatory Comission Samuel J. Chilk
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Secretary of the Comission 4
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