ML20057B661
| ML20057B661 | |
| Person / Time | |
|---|---|
| Issue date: | 02/18/1993 |
| From: | Silberber M NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| To: | Lesar M NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML20057B646 | List: |
| References | |
| FOIA-93-156 NUDOCS 9309230091 | |
| Download: ML20057B661 (18) | |
Text
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ung'o UNITED STATES
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NUCLEAR REGULATORY COMMISSION o
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FEB 181953 MEMORANDUM FOR:
Michael Lesar, Acting Chief, Rules Review & Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration FRON:
Mel Silberberg, Chief, Waste Management Branch, Division of Regulatory Applications, Office of Nuclear Regulatory Research
SUBJECT:
IMPLEMENTATION OF ACTION: DENIAL OF PETITION FROM THE STATES OF WASHINGTON AND OREGON.
By memorandum dated February 16, 1993, the Secretary of the Commission indicated that the Comission (with all the Comissioners agreeing) has approved the denial of a petition for rulemaking made by the States of Washington and Oregon (set out in SECY-92-391).
Please implement the Comission's action by arranging for publication of the enclosed denial of petition for rulemaking in the Federal Register.
Enclosed is a marked-up copy of the Federal Register Notice showing Comission-requested changes for transmittal to the Office of the Secretary.
Also enclosed is a Congressional letter package for transmittal to OCA, letters of dental to the Petitioners and two copies of the public announcement for transmittal to OPA.
In addition, enclosed is a letter to DOE to be signed by Robert M. Bernero, NHSS Office Director.
Please note that Mr. Bernero's letter needs a copy of the Federal Register Notice.
0H..
Mel Silberberg, Chief Waste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Research
Enclosures:
1.
Original FR Notice and 2 Copies 2.
Marked-up Copy of FR Notice j/
3.
Congressional Letter Package t'
1 4.
Letters to the Petitioners g92g1 93o3o4 FACAROS93 _t56 pyg
E FEB 1 8 1993 MEMORANDUM FOR:
Michael Lesar, Acting Chief, Rules Review & Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration FROM:
Mel Silberberg, Chief, Waste Management Branch, Division of Regulatory Applications, Office of Nuclear Regulatory Research
SUBJECT:
IMPLEMENTATION OF ACTION: DENIAL OF PETITION FROM THE STATES OF WASHINGTON AND OREGON.
By memorandum dated February 16, 1993, the Secretary of the Comission indicated that the Comission (with all the Commissioners agreeing) has approved the denial of a petition for rulemaking made by the States of Washington and Oregon (set out in SECY-92-391).
Please implement the Comission's action by arranging for publication of the enclosed dental of petition for rulemaking in the Federal Register.
Enclosed is a marked-up copy of the Federal Register Notice showing Comission-requested changes for transmittal to the Office of the Secretary.
Also enclosed is a Congressional letter package for transmittal to OCA, letters of denial to the Petitioners and two copies of the public announcement for transmittal to OPA.
In addition, enclosed is a letter to DOE to be signed by Robert M. Bernero, NMSS Office Director. Please note that Mr. Bernero's letter needs a copy of the Federal Register Notice.
Mel Silberberg, Chief Waste Management Branch Division of Regulatory Applications Office of Nuclear Regulatory Research
Enclosures:
1.
Original FR Notice and 2 Copies 2.
Marked-up Copy of FR Notice 3.
Congressional Letter Package 4.
Letters to the Petitioners
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p IIDIOIS93 Michael Lesar 2
5.
Public Announcement 6.
Letter to DOE Distribution: [W1. PAT) subj-circ-chron Reading Files ESBeckjord CJHeltemes TPSpeis BMorris FCostanzi RBernero - NMSS BJYoungblood - HLWM/NMSS RBallard - HLWM/NMSS LRiani HSilberberg JRandall NTanious W
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This closes RES ACTION ITEM #930055 Offe: DRA DR1 j
DRA:WM QD:D ES 0.RES Name: NTanious JRandall MSil)erberg F anzi is Date: o 2/ 18/93
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The Honorable Bob Graham, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D. C.
20510 l
Dear Mr. Chairman:
The NRC has sent to the Office of the Federal Register for publication the i
enclosed Federal Peaister notice No. PRM-60-4.
In this notice, the NRC is denying a petition for rulemaking submitted by the States of Washington and Oregon, which request changing the definition of high-level waste in the NRC regulations.
L puiitien is dcnied becze ^ the
_rnei u i nn belicv;s that th; pr: ea.t d;finiliun is suf ficiently dequate to prnt art th pubi ic heai di or.d r2fety.
Sincerely, i
Eric S. Beckjord, Director Office of Nuclear Regulatory Research
Enclosure:
As stated cc:
Senator Alan K. Simpson
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For:
The Commissioners From:
James M. Taylor Executive Director for Operations Sub_iect :
DENIAL OF FOR RULEMAKING PETITION FROM THE STATES OF WASHINGTON AND OREGON REGARDING CLASSIFICATION OF RADI0 ACTIVE WASTE AT HANFORD
Purpose:
To request that the Commission consider and deny the petition for rulemaking from the States of Washington and Oregon regarding classification of radioactive waste at Hanford, Washington.
Summary:
The Nuclear Regulatory Commission (NRC) received a petition from the States of Washington and Oregon.
The States requested that the NRC change its definition of high-level waste (HLW), and also establish new standards so that CONTACT:
Naiem S. Tanicus, RES 492-3878 1
1 I<
i The Commissioners 2
radioactive waste stored in tanks at Hanford, Washington may be classified as HLW, therefore subject to the NRC licensing authority. The staff has examined the petition in light of existing regulations and the available facts (including a series of meetings between the DOE and NRC on the Hanford Waste). The staff concluded that the current definition of HLW in 10 CFR 60 is sufficient to protect the health and safety of the public, and recommends that this petition be
- denied, t-Backaround:
On December 17, 1990, the NRC published a notice of receipt of a petition for rulemaking from the States of Washington and Oregon (55 FR 51732, attached as Enclosure 1). The petition requested that the Commission revise the definition of HLW so as to establish a procedural framework and substantive standards by which the Commission will determine CONTACT:
Naiem S. Tanicus, RES 492-3878 e
The Commissioners 3
whether reprocessing waste, including certain waste stored at the U. S. Department of Energy's (D0E) site at Hanford, Washington, is HLW and therefore subject to the Commission's licensing authority.
In particular, the petitioners requested that the Commission amend 10 CFR 60.2 to clarify the definition of HLW and the definition of "HLW facility."
Under the petitioners' proposal, the Commission would-1.
Establish a process to evaluate the treatment of defense wastes on a tank by tank basis such that the laraest technically achievable amount of es3%
radioactiv s removed; 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 h e.stahlichd i.v uure that greut -eets N
te erature tannira~nt4 for long-term stability low-level waste forms.
The petitioners assert that the proposed rulemaking is essential to provide protection of the future health and safety of the citizens of the Pacific Northwest.
I l
i The Comissioners 4
It should be noted that the petitioners participated in a series of NRC/00E meetings held in 1988 and 1989 to discuss methods of disposal of the Hanford double-shell tank wastes.
Discussion:
The fundamental issue presented by the petition relates to the authority of the Comission to regulate certain DOE
.-p activities-monitoring the storage and disposal of "high-level e
radioactive waste" nd although the petition specifically addresses only Hanford waste, a decision by the Comission may have broader implications, as for example at Savannah River and West Valley, i
These questions must be resolved by examining the source of the wastes in question. The reason for this is, as the j
Comission has previously concluded, that when Congress i
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 l
i encompassed within the meaning of the term "high-level radioactive waste" in Appendix F of 10 CFR Part 50.
Accordingly, any facility to be used for the disposal of "those aqueous waste resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles,..."
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The Commissioners 5
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- as defined in Appendix F - must be licensed by the NRC.
Most of the waste storage tanks at Savannah River, West l
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 included " incidental" waste resulting from reprocessing plant operations such as ion exchange beds, sludges, and contaminated laboratory items, clothing, tools, radioactive hulls, and other irradiated and contaminated fuel structure hardware.
Under the same reasoning, incidental wastes generated in further treatment of HLW (e.g.,
decontaminated salts or miscellaneous trash from waste glass processing) would be outside the Appendix F definition.
ll 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 deep-geologic repository.
Accordingly, that projected recovery of HLW from the wastes in tank storage at those sites will be sufficiently complete
The Commissioners 6
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 the incidental waste.
At Hanford, DOE plans to process stored double shell tanks wastes in a manner that is conceptually the same as at Savannah River and West Valley.
Most of the radioactive constituents of the wastes would be separated for eventual repository disposal and the residual decontaminated salts would be disposed of on site in a concrete-like grout 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, because 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 w.-
The Commissioners 7
mixtures of wastes from both reprocessing sources and other sources.
Finally, recordkeeping 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 above 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 j
other hand, some or all of the wastes should be classified as non-HLW.
Several things became clear as a result of these meetings.
j i
j 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 1
wastes clearly do not contain HLW within the Appendix F definition.
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4 The Commissioners 8
Second, DOE has carried out a " material balance" analysis of waste management activitles at Hanford. This analysis determined the total amount of "first cycle reprocessing wastes" generated at Hanford. 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.
Finally, DOE agreed to study possible technologies for additional waste processing, and to use such technologies to remove the largest reasonably achievable amount of radioactive material from any double-shell tank wastes to be disposed of in ca-site grout facilities. This commitment by DOE to remove the largest reasonably achievable amount of radioactive material, coupled with the mass-balance study indicating that a large fraction of the originally generated radioactive material would be recovered, led the NRC staff to conclude that the residuai waste material after processing of j
double shell tank wastes should be classified as incidental waste i.e., a waste incidental to the process of recovering 1
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L The Commissioners 9
HLW from tank wastes for disposal in the repository.
It should be noted that this incidental waste would be considered suitable for shallow land burial under the criteria in 10 CFR Part 61. With this classification, DOE could proceed with on-site disposal in a grout facilitating without licensing by the NRC.
Thepetitionforrulemakingpresentstwole'g1 issues.
The Issues Presented:
first is a substantive one - the criterion to be applied in differentiating incidental waste fiom high-level waste. The second issue is a procedural one - the process that should be employed by the Commission in arriving at a judgment whether 1
or not it has jurisdiction over particular facilities.
The staff first considered 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 i
f The Comissioners 10 will be generated in addition to the primary solvent extraction wastes; and there is no suggestion that further steps be undertaken to remove (and treat as HLW) "the largest technically achievable amount of radioactivity".
i 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 Comission 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, which reflects a policy of controlling the release of radioactive materials to the lowest levels technically and economically practical."
Although this policy refers to control of releases rather than stages in the waste management regime, it is not unreasonable to view it as applying to the latter as well.
In determining whether reprocessing wastes remain HLW or not, therefore, one appropriate question raised by the NRC staff is whether the quantities of radioactive materials have been reduced to the lowest levels that are " technically and i
The Commissioners 11 economically practical."
e In response to the NRC staff concern, DOE developed a material balance that demonstrated that nearly all of the radionuclides in the original spent fuel would be extracted or would have decayed. The amount of residual radioactive material in DOE's " baseline" plans would have constituted only about 3-5% of the radioactive material originally generated at the site, and with the additional cost-effective processing identified by DOE, the residual activity level would be reduced to about 2-3% of that originally generated.
This showing alone might have sufficed.
However, the staff went further:
in order to conclude that the Commission's policies were faithfully implemented, the staff wanted to make sure that whatever remained in DOE's custody was capable of being handled in a manner that presented no unreasonable risk to the health and safety of the public.
Fortunately, there are some benchmarks for making the necessary judgments - in particular, the Commission's technical requirements for land disposal facilities (for Class A, Class B, and Class C low-level radioactive wastes) as set out in 10 CFR Part 61. The radionuclide concentrations to be achieved by DOE are well within the relevant limits of Part 61.
The Commissioners 12 To summarize, the staff considered that (1) DOE proposed to do all that was technically and economically practical, (2) that DOE would in fact remove the aqueous wastes i
resulting from extraction processes to a geologic repository, and (3) that any wastes that were not thus removed could be disposed of in a manner that would present no unreasonable risk to the health and safety of the public. On the basis of these judgments, the staff concluded that the policies set out in Appendix F to 10 CFR Part 50 were satisfied, that the high-level radioactive waste (within the meaning of the Reorganization Act) would be removed from the site, and that any radioactive material remaining on site would not be high-level radioactive waste subject to NRC's licensing jurisdiction.
As to the procedual issue, the staff believes that the matters are more appropriately treated by way of adjudication rather than rulemaking.
Rulemaking is desirable where an agency establishes a general principle having prospective effect, to be applied in a wide variety of factual contexts -
but not, as here, where the matter involves the application of law to a specific, and unique, existing fact situation.
The Comissioners 13 The NRC received coment letters from 12 comenters. 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 coments were opposed to the petition.
A full discussion of the coments and the staff response to them is included in the Draft Register Notice (Enclosure 2).
Recommendation:
For the reasons discussed above, the staff recomends that the petition be denied.
Coordination:
The Office of the General Counsel has reviewed this paper and has no legal objection.
James M. Taylor Executive Director for Operations
Enclosures:
1.
Notice of Receipt of a Petition for Rulemaking from the States of Washington and Oregon (55 FR 51732) 2.
Federal Reaister Notice i
i 3.
Congressional Letter kk wb &QW,
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Offe: DRA:RES DD:DRA:RES D:DRA:RES DD/GIR:RES D:RES Name:
FCostanzi BMorris CJHeltemes ESBeckjord Date:
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OFFICIAL RECORD COPY