ML20057B654
| ML20057B654 | |
| Person / Time | |
|---|---|
| Issue date: | 03/16/1992 |
| From: | Norry P NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Beckjord E NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML20057B646 | List: |
| References | |
| FOIA-93-156 NUDOCS 9309230076 | |
| Download: ML20057B654 (21) | |
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UNITED STATES Silberberg
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NUCLEAR REGULATORY COMMISSION Tanious o
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!!EMORANDUM FOR:
Eric S. Beckjord, Director Office of Nuclear Regulatory' Research FROM:
Patricia G. Norry, Director Office of Administration
SUBJECT:
OFFICE CONCURRENCE ON DENIAL OF PETITION FOR RULEMAKING (PRM-60-4)
The Office of Administration concurs, subject to the comments provided, on the notice of denial of petition for rulemaking (PRM-60-4) from the States of Washington and Oregon. We have attached a marked copy of the notice of denial package that presents minor editorial comments. These changes must be made before the notice of denial is submitted for i
Connission consideration.
As we indicated in our last review of this notice of denial, we have again added a sentence to the summary paragraph that explains why the i
Commission is denying this petition for rulemaking. We-also recommend that a statement be added to the statement of denial that summarizes the Commission's reasons for denying this petition. We have presented suggested language.
He have rewritten the Congressional letter and the-letter to the petitioner to include a more detailed discussion of the petition and-an explanation of the Commission's reasons for the denial.
'I If you have any questions regarding our comments, please have a member of your staff contact Michael T. Lesar on extension 27758 or Alzonia Shepard on extension 27651.
4
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// W. a $ M.
Fatricia G. Norry, Directo/
Office of Administration-
Attachment:
As stated 3
f 9309230076 930504 PDR FOIA FACAROS93-156 PDR'
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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 Comission.
ACTION:
Denial of petition for rulemaking.
SUMMARY
- The Nuclear Regulatory Comission (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
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FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Comission, Washington DC 20555, j
telephone (301) 492-3878.
SUPPLEMENTARY INFORMATION:
1.
The Petitions On December 17, 1990, the Nuclear Regulatory Comission published a 4
Nof receipt of a petition for rulemaking from the States of Washington andOregonh55FR51732. The petition requested that the Comission revise the definition of "high-level radioactive waste" (HLW) so as to establish a 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 Comission's licensing authority.
ed The petitioners requestJthat the Comission amend 10 CFR 60.2 to clarify the definition of HLW and the definition of "HLW facility."FThe petitioners 5p r@ully
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request that the Comission-p g'
D Establish a process to evaluate the treatment of defense reprocessing q m ce wastes in tanks so that s.uc8 wastes will not be considered HLW if, prior to k m w snt M
l disposal, each tank is treated to remove' the largest technically achievable l
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J amount of radioactivity; and y
f Require that the heat produced by residual radionuclides, together
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with the heat of reaction during grout processing (if employed as a treatment Q
within limits established to ensure tha rout meets technology)>
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j temperature requirements for long-term stability @ low-level waste, o c,e eu j
g The petitioners state,that tMs[etition for rulemaking is based, in
-Qh0 MB part,ongection.202ofthe1974EnergyReorganizationAct,whichprovides for the Comission to exercise licensing and related regulatory authority over n&cd facilities uthorized)for the express purpose of subsequent long-term storage j
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of high-level, radioactive waste generated by DOE which is not used for, or are part of, research and development activities. (*; 5" G"***"f * "'M "S*" f(('
According to the petitioners,flegislative history (reveals that Congress u
intended the Comission to license defense reprocessing tank wastes at the i
point of long-term storage or disp', sal. The petitioners note that " low-l 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 ac'cordance with regulations developed under the Resource Conservation and Recovery Act (RCRA). The petitioners believe that if these wastes are HLW, they clearly fall under the Comission's licensing jurisdiction under section 202(4) of the Energy Reorganization Act of 197 42USC5842(4)f The petitioners acknowledge'that the present definition of HLW in the n
Comission's regulations is based upon the source of the waste, and that,,i 5 h k'
" incidental waste" generated in the course of reprocessing is not HLWI (The latter point is evident from the proposal to amend 10 CFR 60.2 to provide that a residual fraction would be " considered an incidental waste and therefore not s n:eseA HLW.") The petitioners 1 claim., however, that wastes stored in tanks at Hanford cannot practicably be classified as incidental waste (as opposed to HLW) because the tanks contain a mixture of wastes from a number of sources, including reprocessing of reactor fuel. Moreover, the petitioners state that radionuclide inventories are estimates subject to substantial uncertainty, ab owing to lack of accurate records, and further, the petitioners assert that 3
neither DOE, the Comission, nor the petitioners have adequate information regarding the source and composition of the tank waste. Hence, the 4
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petitionersbelieve;t f
that the Comission nee 4 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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i The petitioners assert,)that thel,. proposed amendment g4' essential to Was provide protection of the future health and safety of the citizens of the Pacific Northwest.
II. Classification of DOE Reprocessing Wastess 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, these questions must be 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 waste the Congress 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 presented in the advance notice of proposed rulemaking concerning the definition of a High-Level Radioactive Waste 2 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 equival ent[. N.......,"
asdefinedinAppendixFtoPart50[ustbe licensed by the NRC. Most of the waste storage tanks at Savannah River, West SM Valley, and Hanford contain wastes mee this definition, and the facilities 3
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 j
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y exchange beds, sludges, and contaminated laboratory items, clothing, tools, and equiptent. Neither were radioactive hulls and other irradiated and i
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., salt e,.A na residues or miscellaneous trash from waste glass processing) would be Y side the Appendix F definition.
At Hanford, DOE plans to process the wastes presently stored in double shell tanks in a similar manner to that planned for the wastes at Savannah River and West Valley. Most of the radioactive constituents of the a !d!L wasteskould>be separated for eventual deep-geologic repository disposal and w,n w
I the residual salts (wouJ be disposed of on-site in a shallow, near-surface, concrete-like grout facility.
(Plans for processing of single-shell tank wastes are still under developmentj discussions of these wastes are outside thescopeofthis[etition.)
However, classification of the Hanford double-d Bnsc
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shell tank wastes has proven morejroblematicalithan 'did classification oT Savannah River and West Valley wastes. At Hanford, many of the primary reproce,ssing wastes were generated using older separation technologies, shich i
resultg'n4(in substantial dilution of those wastes with non-radioactive materials. Hence for technical and economic reasons, it appears that the same degree of recovery of radioactive materials that DOE projects to be achievable at Savannah River and West Valley will not be achieved at Hanford.
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 e
of, waste [nowpresentinspecifictanksatHanford.
For these reasons, some of the Hanford tank wastes cannot be readily classified as either HLW or 5
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incidental wastes using only the defini i n and concep i
Because of the a neertainties eftoriginal content of wastes in some of the Hanford tanks and the implications with respect to NRC jurisdiction, l
the NRC and DOE staff held several meetings to explore the situation in detail. A principal objective of the' 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 k
non-HLW. Several things became clear as a result of these meetings.
i First, management records were adequate for DOE to determine that two l
double-shell waste tanks do not contain wastes from reprocessing of reactor fuels. Therefore, these wastes clearly do not contain HLW within the Appendix l
F definition.
The NRC agreed with DOE that any disposal facility intended exclusively for these wastes would not be subject to NRC licensing authority.
y Second, DOE has carried out a " material balance" analysis of waste 4
i management activities at Hanford. This analysis estimated the total amount of "first cycle reprocessing wastes" generated at Hanford and, to the extent practical, the current location of those wastes. DOEkso stimated that the i
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amount of radioactive material expected to be recovered for repository j
disposal nearly as large as the inventory of reprocessing waste
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originally generated. Hence, theeprcposed on-site grout disposal of the residual waste from the double-shell tank waste processing would be only a
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3 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).
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Finally, DOEgagreed to study possible technologies for additional waste j
processing, and to use these technologies to remove the largest reasonably achievable amount of radioactive material from any donble-shell tank wastes to 6
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be disposed of in on-site grout facilities. This comitment by DOE to remove the largest reasonably achievable amount of radioactive material, coupled with the material-balance study indicating that most of'the originallhenerated radioactive material e recovered, led the NRC staff to conclude that the residual waste material after processing of double-shell tank wastes f
should be classified as incidental waste, since they are wastes incidental to the process of recovering HLW from tank wastes (within the sense of the om n Appendix F definition of HLW). With this classification, DOE (coulcy proceed with o{ site disposal in a grout facility without licensing by the NRC.
It should be noted that if the DOE processing operations go as planned, the residual activity of these incidental wastes e such that they e
considered class C wastes under the waste classification criteria of 10 CFR Part 6[nd therefore, suitable for shallow land burial.
j It should be noted that the appropriate classification of some Hanford Y 7/w ; s m / d e.s wastes remains to be determinedgspecificallMily 'ii@e;shell tank wastes s
that DOE might decide to dispose of on-site nd any empty but still contaminated waste tanks DOE might dispose of h lace.
For both types of wastes a case-by-case determination of the appropriate waste classification auy p:A7 j
.be necessary.
III. Discussion g The petition for rulemaking present wo basic issues. The u stion h not whether or not "high-level waste" should be interpreted by reference toe the source-based concepts derived from Appendix F to 10 CFR Part 50. h Ie ya h er
.b., ma vA 4 petitioner agreekhat this is proper.Woduthere-eny fundamental daMenge J to-the-concept that " incidental wastes" are excluded from the definition of 7
"high-level waste." The issues are much narrower ones. The first issue 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 As ta I
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whether or not it has jurisdiction over particular facilities. These '"' b^%
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addressed -in-turnA A.
The Standard for Classification i
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) The gtaff-f4rst' considered the standard proposed byfpetitioners for distinguishing high-level waste from incidental waste. Under this standard, to be applied on a tank-by-tank basis, residual wastes from DOE's processing to remove the HLW component would remain classified as HLW unless the process employed by DOE was such as "to remove the largest technically achievable
- s amount of radioactivity." This concept of removing "the largest tech ically achievable amount of radioactivity" from wastes before those wastes caU considered as " incidental wastes" is not embodied in Section 202 of the Energy d R M, Keorganization Actgwhich refers to Appendix F to 10 CFR Part 50.
- Rather, l
under Appendix F, it is anticipated that incidental waste will be generated in l
addition to the primary solvent extraction waste, and there is no suggestion l
I that further steps be undertaken to remove (and treat as HLW) "the largest l
technically achievable amount of radioactivity." Rather, Appendix F contemplates 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 i
Comission with aspect to management of the AEC's defense wastes shed light on the principles that should apply. These views appear in AEC Manual 8
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a gw Gs Chapter 0511 which reflects a policy of controlling the release of A.
cio,/c fe</o h radioactive materials to the lowest levels technically and economically
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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 determining whether reprocessing wastes remain HLW or not, dhereforb 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 i n t a a _____
F Room.) DOE's " baseline" disposal plans (fould havej recovekall but about 12-s 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 e.n eq furtherf7 Rover cesium-137 or other radionuclides for repository disposal would involve substantial increases in costs and the NRC staff agreed that the l
1 costs appeared to be unreasonably high. The NRC staff was concerned, nevertheless, that even the degree of separation proposed by DOE might not j-Shteel satisfy the underlying policies of Appendix F to 10 CFR Part 50.
(/)'n legalistic terms Ithough those aqueous wastes resulting from the extraction i
cycles would be converted to dry solids to be transferred to a geologic 1
i rep,ository, 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'y goal
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,the i bulk of the hazardous radioactive material to a repository.
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In response to th NRCW' concern, DOE developed a material balance 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 percent of the radioactive material originally in the wastes, and with the additional cost-effective processing identified by DOE, the residual activity level would be reduced to about 2-3 percent of that originally in the wastes. This showing alone might Mc have sufficed.
However, the staff went further.
In order to conclude that f
the Comission's policies were faithfully implemented, the NRC staff wanted to make sure that whatever remained in DOE'; 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 Comission'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 wastes generally considered suitable for land disposal as set forth in 10 CFR 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.
Ce n r u..*n in sumaryJ the NRC-ste nsidered that (1) the appropriate criterion to apply to the residual w?stes from DOE's processing of the tank wastes at the Hanford site to be considered as " incidental wastes" is that the radioactivity be removed to the greatest extent technically and economically 8,. 5 practical,(2) DOE proposed to do all that was technically and economically eu s tI c,.
practical, (3) DOE wouM in fact remove the aqueous wastes resulting from the 10
extraction processes to a deep-geologic repository, and (4) any wastes that con v were not removed to a geologic repository-settWbe disposed of in a manner Will JL that motAtf present no unreasonable risk to the health and safety of the nn,w has public. On the basis of these judgments, the NRC 4 &ff concluded that the a:.r policies set out in Appendix F to 10 CFR Part 50 weeatisfied, that the high-level radioactive waste (within the meaning of the Energy Reorganization s, n -
Act) wovM be removed from the site, and that any radioactive material i
remaining o ite w
'not h-level radioactive waste subject to NRC's licensing jurisdiction.
In light of the above, NRC does not have jurisdiction to establish temperature or stability criteria applicable to DOE onsite b
disposal of the remaining wastes, as requested by the petitioners.
B. Procedural Issues 1
l
- 1. Whether Rulemakina is Necessary;and Desirable G 1
A The petitioners urge that the Comission initiate rulemaking procedures f
that would result"1in the establishment of substantive criteria for determining L vc whether particular radioactive wastes either are or are not high-level waste.
Generally, a oecision whether to proceed by rulemaking (as requested) or to Pces OGC c a 5's make determinations in individualfid hW Titigation] lies within the informed t,%
ws g;g,.,,g i 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, especially where that situation is not representative of other matters that may need to be decided by the agency, 11
9 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 Comission 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 Comission has previously 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, 1987). Defense wastes generated at the Idaho Chemical Processing Plant are markedly different from those at Hanford and Savannah. Therefore if questions j
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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T he-hRC~,ta believesthatthelimitedpracticaleffectofadecisionf i.e., applicable only to the double-shell Har. ford tanks, reasonenoug%-to The S<RC is persuaded proceed by way of adjudication instead of rulemaking.
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 a m t.,m w a pending treatment plans.
If NR were to establish rules to apply to the a %.
cy-wastes in those tanks,(oupinquiry would have to be greatly broadenedi and.It ym 9 t become necessary to consider a wide range of factual situations that
~x "might orfmight not ever come to pass in the future. Therefore, it is best to consider other defense waste tanks on a case-by-case basis.
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- 2. Whether the Comission Is Adecuately Informed G p uerb d Petitioners aggest attheirproposedprocedures,whichincluded detailedtank-by-tankassessmentsNe$necessarytoensureconfidence n the treatment process fully employed by DOE and to build nfidence that the treatment standard is being met.
Fe r Lke w tis son 9 eras po -
ghe issue te be.ee4ded by the C =ission_ts> a much narrower one; tt i3 A fmerely. to determine whethee the activities being undertaken by the Department of Energy fall within the NRC's statutory jurisdiction? As in the case of
, la couc otheripEMohipwhose activities may fall within our regulatory sphere, the Comission may from time to time demand information so as to be able to determine whether or not to initiate an enforcement action. The 4iRC 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.
All the information obtained and evaluated has been made available contemporaneously to the public. As indicated in an earlier part of this decision, the Comission has obtained the information that is needed in the case of the double-shell tank waste, in a manner that provides for protection of public health and safety, and so the procedures prcposed by the petitioners
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/will not blrequired.
- 3. Future ad_iudications g
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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 13
proceedings." The NRC infers that the " proceedings" contemplated by petitioners are licensing activities of the kinds specified in Section 189 of the Atomic Energy Act, as amended, 42 USC 2239. Adjudications in this type of proceeding are in some cases to be conducted in accordance with the hearing provisions of Subpart L of 10 CFR Part 2.
These procedures are appropriate with respect to activities that are subject to NRC regulatory and ~.icensing authority. However, the NRC is reluctant to employ them in the :ontext that is proposed - to determine if HRC has jurisdiction.
This scrutiny of DOE activities might be seen as an unwarranted intrusion into a sphere which Congress has determined is not of
% c~ in.n regulatory concern to this agency. Moreover, if we were to find that the adjudications were properly to be regarded as Section 189 proceedings, the NRC would not be able to undertake the cause the 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 42USC727h.
- 4. Other considerations g 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 disposi'.ive of the question whether the facilities for storage of the treated waste are subject to licensing. A number of other factors 14
WAY ight 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 Comission to address these questions in order to dispose of the pending petition.
IV. Public Coments on the Petition l
The NRC received 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.
coments were opposed to the petitionj ~ c, ds ny d
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fMiq ud e n g e,A r,
-t o o k A.
Process and Standards Proposed in Petition Several coments expressed concern that granting the petition would have an adverse effect on the timely disposal of radioactive waste at Hanford.
This was a concern because many of the Hanford waste tanks (wer;e seen as
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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 petitioner's request that "best available technology" be used in removing HLV j
material from the tank wastes was seen as ignoring costs of disposal, exposures to workers, and environmental impacts.
15
4 Some comments disputed the petitioner'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 suggested 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) 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 Conmission believes that adherence to the standard of technical and economic practicality generally reflects agreement with these comments.
l 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).
Further consideration of these issues is beyond the scope of this proposed rulemaking action.
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9 C. NRC Licensing Authority
)
4 (Some comenthfocused 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 l
activities, which would be inconsistent with NRC authority to license specific ggyw@e*+y but *4 A%3 Another comenter stated that the proposed DOE facilities under thd rulemaking was inconsistent with the statutory responsibilities of DOE and NRC. These arguments have already been discussed, and require no further response.
T A comenter concluded that DOE was currently in violation of 10 CFR Part P
30 requirements for a license because various near-surface waste disposal I
U facilities at Hanford are being used for "long-tem storage" of high-level I
radioactive waste.
The issue is not pertinent to the subject matter of the petition. However, in any case, the coment does not take into consideration the judicial interpretation of the tem in Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Comission, 606 F.2d 1261 (D.C. Cir.,1979).
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D. Public Input
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(Anum comments stressed the importance of adequate public input l
into decision making regarding disposal of the Hanford tank wastes. bSd/2--
called for public hearings on this subject to be held in the Pacific g m.,, w.4 c y a p ~.e
- Northwest. One comenter noted that th IS was done for Hanford provided the opportunity for public comment. Another commenter believed that the Commission's rulemaking procedures did not offer the public a bet u r opportunity for input than does the current licensing procedure.
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@ indicated in the Discussion, ab6vey 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 excs to attend. Documents have been placed in the Public Document Room and have p
been made available for public inspection.
It appears to the Commission that the essence 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 these evaluations.
Also, the proposed 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 opportunities for public participation to the extent required by its own enabling statutes, regulations, and orders.
E. Other Coments One comenter took exception to the petitioner'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 5
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) 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 18
~
role to judge the relative safety of various disposal options, and we decline to do so.
One coment stated that while the petition was aimed solely at the Hanford tank wastes, its provisions could potentially affect all radioactive wastes from reprocessing, including those at Savannah River, West Valley, and the Idaho National Engineering Laboratory. As the waste management programs
_P at thesegsites 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 yet believes that the specific case at hand only needs to be addressed at this time.
Some coments urged the Comission not to change the present definition of HLW.
The Comission is not changing the present definition.
P/A r' h ar' V.
Conclusion Alff4,%t -h i
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s.y ri. / xese,,t'< / /s fbn ok r e v m *,
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i l/hepetitionforrulemakingisdenied.
Dated at Rockville, Maryland this day of
, 1992.
For the Nuclear Regulatory Comission.
Samuel J. Chilk, Secretary of the Comission.
19
4 (fYrs di f The NRC believes that the limited practical effect of a decision that applies only to a specific situation as the double-shell Hanford tanks is ws reason enough to decide = P : y ssue by a process of adjudication i
(i.e., on a case-by-case basis) instead of through rulemaking. Therefore, the NRC concludes that the polices set out in Appendix F to 10 CFR Part 50 M satisfied, that the high-level radioactive waste (within the meaning of of 1 ill the Energy Reorganization Act) 914 be removed from the site, and that any radioactive material remaining o h te M ot be'high-level radioactive waste subject to NRC licensing jurisdiction.
F
/t A otuiu s m onen1 03 m 92