ML20058K423
| ML20058K423 | |
| Person / Time | |
|---|---|
| Issue date: | 11/09/1993 |
| From: | Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA) |
| To: | Simon P SENATE, JUDICIARY |
| Shared Package | |
| ML20058K426 | List: |
| References | |
| CCS, NUDOCS 9312150213 | |
| Download: ML20058K423 (7) | |
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UNITED STATES
- !li[~i NUCLEAR REGULATORY COMMISSION (s
WASHINGTON, D.C. 205554)001
- ...a November 9, 1993 The Honorable Paul Simon, Chairman Subcommittee on the Constitution Committee on the Judiciary United States Senate Washington, DC 20510-6275
Dear Mr. Chairman:
Thank you for the opportunity to comment on the draft bill to
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grant Congressional consent to a revision of the Central Midwest Interstate Compact on Low-Level Radioactive Waste, which was one of several compacts approved by the Congress in January 1986 in the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act (Title II, Public Law 99-240).
States entered into these compacts to implement the Low-Level Radioactive Waste Policy Act, enacted in 1980 (Public Law 96-573), and their approval was part of the same statute that enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Title I, Public Law 99-240).
Our review indicates that a large portion of the revised Compact replicates the language of the current Compact.
The revision i
does, however, make more explicit the authority of the Central Midwest Compact Commission to enter into agreements not only with respect to disposal of low-level radioactive waste, but also with respect to treatment and storage of such waste.
In this respect, the revision goes beyond the purview of Public Law 96-573 and Public Law 99-240, which we believe to be limited to disposal.
This raises significant policy questions that we have not had an opportunity to explore fully.
Before supporting such an expansion of authority, we would wish to know more about the relationship between the broader approach reflected by the bill and the goals of the 1980 and 1985 Acts.
t We also note that the bill does not include the language used in Public Law 99-240, and subsequent compact ratification, to condition Congress's consent to low-level radioactive waste compacts.
This language expressly states that the consent of the Congress is granted subject to the provisions of the Low-Level Radioactive Waste Policy Act and is granted only for so long as the regional commission established in the compact complies with all of the provisions of the Act.
Since the bill presents the revised compact as a stand-alone document, if the revised compact is adopted by the Congress without an express statement of these conditions in the ratifying legislation, the omi~ssion could raise j
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4 The Honorable Paul Simon :
questions regarding the applicability of the conditions to the Central Midwest Compact.
Making the Congressional consent for the Central Midwest Compact different from that for the other i
eight compacts will create an asymmetrical system, and could lead to conflicts between regions.
In the past, Congress has set a high priority on establishing a consistent set of rules under which the interstate compact system for low-level waste disposal would operate.
Other comments of NRC staff regarding the proposed revision are provided in an attachment to this letter.
Sincerely,
.Mw n
1-Dennis K. Rcthbun, Director j
office of Congressional Affairs Enclosure-l Analysis of Bill I
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'The Honorable Paul Simon 2-i questions regarding the applicability of the conditions to the Central Midwest Compact.
Making the Congressional consent for i
the Central Midwest Compact different from that for the other i
eight compacts will create an asymmetrical system, and could lead i
to conflicts between regions.
In the past, Congress has set a
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high priority on establishing a consistent set of rules under which the interstate compact system for low-level waste disposal I
would operate.
other comments of NRC staff regarding the proposed revision are provided in an attachment to this letter.
Sincerely, i
i Dennis K.
Rathbun, Director Office of Congressional Affairs
Enclosures:
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Analysis of Bill i
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I ENCLOSURE' i
ANALYSIS OF BILL TO GRANT CONSENT GP CONGRESS-i I
TO REVISED CENTRAL MIDWEST COMIACT t
ANALYSIS OF BILL TO GRANT CONSENT OF CONGRESS TO REVISED CENTRAL MIDWEST COMPACT 1.
In defining the term " low-level radioactive waste," the revised compact would add a caveat (Article II (k)) not previously found in the compact definition, stating--
i This definition shall apply notwithstanding any declaration by the Federal Government, a State or any regulatory agency that any radioactive material is exempt from any regulatory control.
This language seems to go considerably beyond the Energy Policy Act of 1992, which provides that the Atomic Energy Act and the Low-Level Radioactive Waste Policy Act may not be " construed to prohibit or otherwise restrict the authority of any State to regulate, on the basis of radiological hazard, the disposal or off-site incineration of low-level radioactive waste, if the Nuclear Regulatory Commission, after the date of enactment of the Energy Policy Act of 1992 exempts such waste from regulation."
This statement enhances state authority to regulate only where (1) state regulation is on the basis of radiological hazard, and t
(2) the NRC after the date of enactment of the Energy Policy Act i
exempts the waste from regulation.
The caveat could be interpreted as an attempt to provide a greater range of authority to the Central Midwest Compact Commission than now inheres in any other compact commission or in any state, and any attempt to implement it could raise some significant issues of legal authority.
In addition, the new caveat would exacerbate a problem relating i
to differences in compacts' definitions of " low-level radioactive waste."
Adding the caveat could obviate the need for the Central Midwest Compact to conform to a uniform definition applicable to 1
all states and compacts.
Sag, the definition contained in section 2 of the Low-Level Radioactive Act Policy Amendments Act of 1985.
This has the potential for creating unnecessary l
uncertainties and conflicts as the various states and compacts attempt to address low-level radioactive waste.
2.
The proposed compact would permit the Compact Commission to enter into agreements to allow waste from outside the region to be treated or stored at facilities in the region,2 but provides j
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The proposed compact revision seems intended to move away j
2 from the concept that the compact is in implementation of the Low-i Level Radioactive Waste Policy Act and the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Title I, Public Law 99-240).
For example, in Article I the following language that appears in the current Central Midwest Interstate Low-Level Radioactive Waste Compact has been eliminated:-
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that the agreement shall be revoked if, within one year of the effective date of the agreement, the party state where the waste would be sent enacts a law ordering revocation of the agreement.
(Article III, S (i)(3))2 This provision could raise some complex issues of Constitutional law and statutory interpretation.
For example, it is true that the Low-Level Radioactive Waste Policy Act authorizes compacts to exclude radioactive wastes generated outside the region, but this authority appears to be limited to restriction of use of regional disposal facilities.
With respect to treatment and storage, the permissibility of discriminating against generators from outside the region seems, at best, to be an open question.
While there are provisions in other compacts that imply the authority to exclude out-of-compact waste from treatment and storage l
facilities located in the compact region, there does not seem to l
have been any court test of this authority.
1 A somewhat related question is raised by disparate treatment of regional generators and out-of-region parties by Article VI S (q), which would require imposition of liability for the cost of extended care and long-term liability on persons who send waste i
to the region for treatment or storage.
Albeit the immediately l
preceding section permits party states to meet their liability for costs of extended care and long-term liability by levying surcharges upon generators located in the party state, there does l
not appear to be a recuirement for imposing such liability on such generators.
3.
The Congressional consent language used for all prior compacts not enacted in the same legislation as the Low-Level The party states acknowledge that Congress declared that l
each state is responsible for providing for the availability of capacity either within or outside the j
state providing for the disposal of low-level radioactive waste generated within its borders, except for waste generated as a result of certain defense activities of the federal government or federal research anc development activities.
Deletion of this language enhances the impression that the compact l
is a vehicle for general management of low-level radioactive waste, rather than for implementation of Congressional enactments concerned with disposal of such waste.
Concerns about the outcome l
of New York v. NRC may have generated this change in language, but i
in light of the Supreme Court's 1992 decision that, except for the "take-title" provision, the Low-Level Radioactive Waste Policy Amendments Act of 1985 is constitutional, such concerns should no longer serve as a rationale for the change in language.
l A similar right to revocation is provided in S 11) (2) with 2
respect to agreements for treatment,
- storage, or disposal or Federally-owned or generated radioactive waste.
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-3 Radioactive Waste Amendments Act of 1985 made reference to section 4 (a) (2) of the Low-Level Radioactive Wastes Policy Amendments Act of 1985, which provides:
(1)
It is the policy of the federal government that the responsibility of the States under section 3 for the disposal of low-level radioactive waste can be most safely and effectively managed on a regional basis.
(2)
To carry out the policy set forth in paragraph (1), the States may enter into such compacts as necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive waste.
In addition, the Congressional consent in all prior compacts has expressly stated that the consent of the Congress is granted subject to the provisions of the Low-Level Radioactive Waste Policy Act and is granted only for so long as the regional commission established in the compact complies with all of the provisions of the Act.
Making the Congressional consent for the Central Midwest Compact different from that for the other eight l
compacts will create an asymmetrical system, and could lead to conflicts between regions.
In the past, Congress has set a high priority on establishing a consistent set of rules under which the interstate compact system for low-level waste disposal would operate.
Egg, for example, Sen. Rep. 100-285, page 17 (February 16, 1988), on the Appalachian States Low-Level Radioactive Waste Compact, and H.
Rep.99-320, page 3 (October 22, 1985), on the Rocky Mountain Low-Level Radioactive Waste Compact.
1 The failure to condition the Central Midwest Compact in the same way as the other compacts could have other significant consequences.
For example, section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 authorizes the 1
Nuclear Regulatory Commission to grant emergency access to a regional disposal facility if necessary to eliminate an immediate and serious threat to the public health and safety or the common defense and security.
Failure to reference the 1980 and 1985 Acts could raise the question whether these emergency access provisions are applicable to a compact that was ratified without the consent conditions.
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