ML20059K925

Responds to Commission Staff Requirement Memo (M900117) Re Issues Concerning Waste Title Transfer & Possessions

ML20059K925
Person / Time
Issue date:	09/12/1990
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
FRN-58FR6730, TASK-PINV, TASK-SE AE22-1-040, AE22-1-40, SECY-90-318, NUDOCS 9009250218
Download: ML20059K925 (19)

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POLICY ISSUE September 12, 1990 (Notation Vote)

SECy_90 318 For:

The Comissioners l

From:

James M. Taylor f

Executive Director for Operations i

Subject:

LOW-LEVEL RADIOACTIVE WASTE POLICY AMENDMENTS ACT TITLE TRANSFER AND POSSESSION PROVISIONS

Purpose:

This paper responds to the Comission Staff Requirements Memorandum (M900117) to provide the Comission with information on the issues concerning the waste title transfer and possession provisions set forth in the Low-Level Radioactive Waste Policy Amendments Act (LLRWPAA) of 1985 and provide options for Comission action.

Category:

This paper covers policy issues requiring Comission consideration and approval.

Sumary:

The staff has evaluated issues raised by the waste title transfer and possession provisions of the.LLRWPAA. Major issues raised relate to States taking possession of low-levelwaste(LLW)after1993or1996,andlicensingof I

such possession (storage) by the U.S. Nuclear Regulatory Comission-(NRC) and Agreement States. Before a State can take possession of the waste, a specific license from either NRC or an Agreement. State. will be required. Existing regulations in 10 CFR Parts 30, 40 50, and 70 and comparable regulations in Agreement States are adequate for licensing short-term interim storage. Guidance on storage in Generic Letters 81-38 and 85-14 and Infomation Notices 89-13 and 90-09' has been transmitted to NRC licensees and-Agreement States and is also adequate for licensing of.

short-term interim storage. This guidance includes consideration of keeping storage to limited periods of time (i.e., five years or less) and places emphasis on shipment of LLW for final disposal. After analyzing the issues for NOTE:

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Commission action and the advantages and disadvantages of four approaches, staff recommends that, as a first step, a letter be sent to Governors that reviews the 1993 and 1996 provisions of the LLRWPAA and transmits existing NRC guidance on storage of LLW. Staff would authorize storage only for a single five-year period using existing guidance, whether at a generator's f acility or a state facility. Authorization for storage for additional periods would require an evaluation of the adequacy of existing guidance and an assessment of possible generic impacts. Staff will also continue to monitor the States' progress in establishing new disposal capacity and address questions and issues as they arise, including development of further guidance or rulemakings as they are identified.

Background:

On January 17, 1990, the staff briefed the Commission on the status of the Governors' certifications submitted to NRC as required by the 1990 milestone of the LLRWPAA. As a result of discussions during this briefing, the Commission issued a staff-requirements memorandum dated February 14, 1990, which i

. requested the staff:

(1) to evaluate the issues raised by the waste title transfer provisions of the LLRWPAA; (2) to evaluate the advantages and disadventages of various conceptual approaches available to NRC for fulfilling any responsibilities it may have in implementing these provisions of the LLRWPAA; and (3) to develop a schedule for proceeding with the development of necessary regulations or regulatory guidance so that the framework for implementing these provisions-would be in place by January 1,1993.

Section 5(d)(2)(C) of the LLRWPAA sets forth the 1993 and 1996 deadlines which contain the requirements for. title l '

transfer to, and possession of,- LLW by States. This section l

of the LLRWPAA provides that if a State or compact cannot provide for the disposal of its LLW af ter January 1,1993, 3

any genarator in that State (compact) may request that the State in which the generator is located take title to and L

possessioi: of the waste generated or assume liability for

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the failure to do so. This 1993 deadline, in comparison to.

the 1996 deadline, allows the State to elect not to take legal respons 6111ty.

In this case, however, the LLRWPAA imposes a financial penalty on the States, in that surcharge o

rebates will go to generators, not to the States., Nearly all D

the Governors' Certifications submitted to meet the 1990 a

milestone indicated the State planned on interim storage by waste generators during the 1993 through 1996 period.

However, after the final deadline of January 1,1996, the States, upon proper notice by the generator or owner, shall take title to and be obligated to take possession. The i

State is liable for all damages directly or indirectly L

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t, incurred by the generator' or owner if it fails to take possession as soon after January 1,1996.as the generator or owner notifies the State that the waste is available for I

shipment. With title and possession, the State is l

responsible for safely managing the radioactive waste it possesses.

The failure of some States to meet milestones of the LLRWPAA (e.g., Vennont), the lack of progress of other States to site a new LLW disposal facility (e.g., Michigan) and the plans of most non-sited States to store LLW after 1992 until new sites are established, will lead to significant increases in NRC and Agreement State' licensee reliance on storage of

LLW, Such storage is being considered not only at individual licensee facilities but also at new central facilities t

(e.g.,NewYork).

Some licensees having excess storage space may also be asked by States or other licensees not having sufficient storage space to store waste for multiple licensees. The expected duration of such storage in some States will approach the five year time frame set out in L

existing NRC guidance and is likely to exceed the 1996 deadline established in the LLRWPAA for the establishment l-of new disposal capacity.

Discussion:

In response to the first SRM request, the staff considered a range of far-reaching issues possibly resulting from the I

title transfer provisions of the LLRWPAA. Miny issues, l~

however, clearly are tied to the national program established by the LLRWPAA and lead to other issues tied to alternatives not envisioned by the LLRWPAA, such as long-term or indefinite-term storage. While staff recognizes that some States or Compacts may not have new disposal facilities operational by 1993 or 1996, staff also concludes that it is not appropriate at this time to speculate that such' facilities will'not be established.

Thus, in response to the first SRM' request, the staff evaluated the following three issues raised by the title and transfer provisions of the LLRWPAA:

1.

Adequacy of the existing regulatory framework to enable States to take title and possession of low-level waste.

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2. ' The staff issuance-of licenses ~for storage after 1996-and the question of whether such actions will remove incentive for States to achieve the permanent' disposal objectives of the LLRWPAA.

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The length of time for such storage approval.

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The first issue is whether the existing regulatory framework l

1s adequate. Office of the General Counsel staff analyzed Section 5 of the LLRWPAA in order to determine NRC's L

responsibilities associated with the 1993 and 1996 deadlines (see Enclosure 1). Since 10 CFR Parts 30, 40 and 70 each contain a general license authorizing any person, including a State, to be an owner of ("take title to") radioactive materials, the legal formality of States taking title to LLW for storage will focus on the laws of the various States pertaining to transfer of ownership of personal property.

Consequently, there appear to be no significant legal regulatory issues germane to NRC for the transfer of title for LLW to States. Possession of LLW, however, will require a specific license from either NRC or an Agreement State before a State can take posi;ssion of the waste.

Existing regulations in 10 CFR Pa '

J0, 40, 50, and 70 and guidance i

on storage in Generic L...

rs 81-38 and 85-14 and Information Notices 89-13 and 90-05 tre adequate for licensing. Generic letter 81-38 and Information Notice 90-09 include consideration L.

of keeping storage to limited periods of time (i.e., five years l

or less) and place emphasis on shipment of LLW for final l

disposal. Thus, on the first issue, it is determined that NRC has an existing regulatory framework for licensing title l-L transfer and interim storage. The Agreement States also have an adequate regulatory framework. They have received NRC l

guidance and have been encouraged to adopt similar guidance for their licensees.

The second issue is whether the staff should issue licenses o

for storage efter 1996 and whether such an action will remove incentive for States to achieve the permanent dispoxal objectives of the LLRWPAA. The third issue is the period l'

of time for such storage approval. Although the LLRWPAA does not impose implementation responsibilities on NRC L-regarding the 1996 deadline, it would be contrary to the national policy expressed in the LLRWPAA to take actions which could be seen as relieving States from the need to accomplish the overall objective for permanent disposal of l

low-level waste. The staff believes that the Commission's statement in the February 14, 1990 Staff Requirements Memorandum that it "will not look favorably on long-term 1

on-site storage after January 1,1996," is consistent with

.the national policyv Consistent with Commission guidance, staff will authorize interim (short-term) storage beyond 1996 based on need while disposal capacity is.being. developed.

Storage approvals, needed in 1993, would be authorized for only a single five-year period nsing existing guidance, whether at a generator's facility or a state facility. This period of time should be sufficient to allow for the establishment of new siles by States or Compacts without access to a site

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on January 1,1993. While no law or regulation prohibits storage of wastes for periods of time in excess of five years and beyond 1996, authorizing storage for a period which extends beyond 1998 could be construed as being inconsistent with current national policy. Thus, for future requests for authorization to store LLW for additional five-year periods beyond 1998, staff should consider the adequacy

,of the use of existing guidance, should evaluate the appropriate and necessary license requirements to assure safety, and should assess the possible generic impacts of storage beyond a single five-year period.

L The second item in the SRM requested the staff to examine L

the advantages and disadvantages of various conceptual approaches to address the title transfer and possession provisions of the LLWPAA. The staff has examined a number of approaches. They are:

1.

Amend Parts 30, 40, and 70 to codify NRC's position and requirements that would be a) plied in licensing storage as they pertain to t1e LLRWPAA 1993 and 1996 deadlines.

2.

Issue a letter to the Governors summarizing NRC's position, regulations, and guidance for LLW storage as they pertain to.the LLRWPAA 1993 and 1996 deadlines.

~s Follow national progress on the development of new disposal facilities, and if a need is identified, develop NRC safety guidance for longer tarm storage l

after consulting with the Commission.

3.

Issue a policy statement containing information similar to that contained in Alternative 2.

4.

Take no action.

The advantages and disadvantages of each are discussed in.

The review reveals-that existing guidance for interim short-term storage by reactor and non-reactor licensees is adequate and the need for additional guidance involving-storage for longer, more indefinite periods of time can be addressed as needs are identified. Thus, a rulemaking action is not required at this time.

In reviewing the second and third approaches, the staff recommends that NRC provide guidance to the Governors. The guidance would address the various regulatory and technical considerations associated with the title transfer and

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possession provisions of the LLRWPAA with particular emphasis on storage issues.

The option of issuing a policy statement appears less desirable to staff. The development and issuance of a policy statement can be an intensive and

-lengthy process. A policy statement may also demand a much more immediate and detailed resolution of a broader range of issues involving storage at a time when such action could possibly limit or constrain future options. Thus, a letter to the Governors, signed by the Chairman, is the preferred alternative.

The letter would emphasize interim short term storage issues and requirements for obtaining a license authorizing possession of radioactive materials in the form of LLW. The letter would also' emphasize that design of a facility-for longer term storage would likely be considerably more complex and may be subject to safety controls that go d i beyond the measures identified in NRC guidance 4r periods up to five years. Enclosure 3, " Guidance for Governors,"

contains the proposed letter. Upon approval by the Commission, the Staff will issue the subject letters.

The no action approach calls only for NRC to monitor States': progress in establishing new disposal capacity and react in response to developments.

For this last approach, the advantages of NRC resource savings and allowing NRC the maximum flexibility in addressing issues are outweighed by the disadvantages of not reemphasizing NRC's policy and guidance on LLW storage in the context of the LLRWPAA 1993 milestone; The third SRH item called for schedules to develop necessary regulations or guidance. Since no additional regulations or guidance appear necessary for the LLRWPAA 1993 milestone.- schedule development is not necessary.

Future Plans:

The staff will continue to monitor progress of the States in establishing new disposal capacity and address-questions and issues regarding storage as they arise. Such opportunities are available through the LLW Forum, the Technical E

Coordinating Committee, the ' Agreement States, the State Liaison Officers, and workshops. The staff will identify-and take action,to address areas requiring further guidance or rulemaking as they are identified. Such action now could l

L possibly limit the range of future actions available to the.

Commission.

It might also preclude opportunity for input from' future State actions and other actions such as the recent State challenges to the constitutionality of taking.

title and possession of LLW pursuant to the LLRWPAA.

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The staff will continue to reaffirm NRC's position in correspondence and meetings, namely, that NRC does not look favorably on extended long term storage of LLW. Authorizations for storage up to five years, and beyond the 1996 deadline, will be issued if needed for safe management of LLW while disposal capacity is being developed by the States.

The staff will also coordinate,;ith the Agreement States and er. courage Agreement State regulatory agencies to adopt and carry forward a similar position.

Coordination:

This paper has been coordinated with the Office of Governmental and Public Affairs. This paper has been reviewed by the Office of the General Counsel which has no-l 1egal objection.

Recommendation:

1) That the Commission approve issuance of the proposed GuidancetoGovernors(Enclosure 3).

2) That the Commission approve the staff plans to continue to utilize existing guidance to authorize storage for_a l

l single five-year period beginning in 1993.

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txecutive irector for Operations

Enclosures:

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1. 0GC Analysis

2. Alternatives L;

3. Guidance for Governors Commissioners' comments or consent sliould be provided directly l-

-to the Office of the' Secretary by COB Wednesday, September 26, 1990.

Commission Staff Office comments, if any, should be submitted

-to, the Commissio ners NLT Hednesd:y, September 19, 1990, with an information copy to the Office of the Secretary.

If the paper is of'such a nature that it requires additional review.and comment,-the Commissioners and the Secretariat should be apprised of when comments may be expected.

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ENCLOSURE 2 i

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ALTERNATIVES 1.

Anendments to 10 CFR Parts 30. 40 and 70 NRC would initiate a rulemaking to anend 10 CFR parts 30, 40, and 70, to codify NRC's position and requirements that will be applied in licensing storage of LLW as it pertains to the 1993 and 1996 milestones while disposal capability is developed. This alternative provides a number of advantages, including the following:

An advanced notice of proposed rulemaking would allow for a 60-day a.

conenent period, potentially reach a broader audience than the Guidance for Governors or Policy Statement options, and allow for consideration of public conenents in the development of the proposed rule.

Such a process would also importantly provide a forum for airing of the policy issues associated with storage for periods of tine beyond five years and provide a definitive basis for safety or environnental requirements for longer term storage, b.

The proposed rulemaking process would provide opportunity for States and compacts to provide input on the regulatory process to be used by NRC in dealing with issues involving waste possession by States and disposal of stored waste.

Rulemaking at this time would likely not be able to cover all possibilities which may occur over the next several years, such as the results of recent State challenges to the Act or future State activities to address their responsibilities under the Act. A rulemaking could also inappropriately limit the options of NRC in dealing with future waste storage and disposal scenarios.

Given the complexity and uncertainties in the program, many scenarios are possible.

It would also be difficult to initiate such rulemaking without appearing to impact upon the 1993 and 1996 deadlines of the LLRWPAA. Codifying requirements could be construed as establishing new deadlines beyond 1996. Such requirements would allow States to continue to store LLW without having to establish final disposal capacity. This rulemaking would likely have to address NRC's confidence in the ability of licensees or States to safely store waste for long or indefinite periods of time, which could be construed as undennining the LLRWPAA. Such action could delay some States in making progress in the siting, construction, and operation of disposal facilities. Finally, existing guidance for interim short-term storage by reactor and non reactor licensees is adequate and the need for additional guidance involving storage for longer, more indefinite periods of tine can be addressed as needs are identified.

ENCLOSURE 2

~2-2.

Guidance for Governors NRC would issue guidance to the Governors, as issues and needs are identif ied. The guidance would be transmitted by letter, with attachments, and signed by the Office Director, EDO, or Chairman as determRed by the significance and magnitude of the issues being addres m.

Initial guidance would be sent to the Governors in a letter signed by the Chairman.

It would address the various regulatory and technical considerations associated with the title transfer and possession provisions of the LLRWPAA with particul6r emphasis on storage, it would include copies of the current guidance docunents and regulations NRC would apply in the licensing of storage. Such an approach was followed by NRC in the issuance of guidance for the Governors certifications. The letter, being signed by the Chainnan, would comunicate a Commission level position on how NRC intends to facilitate the goal set by Congress in the

.LWRPAA. This alternative would also enable NRC to continue to monitor national progress in the developnent of new disposal capacity and to develop and issue additional guidance as needs are identified. This alternative would not, however, formally codify in a rule NRC's position or the requirements NRC would apply for issuing a license to a state for possession and storage of LLW beyond the 1996 deadline.

3.

Policy Statement NRC would publish a policy statement providing information similar to that provided in item 2 a)ove.

It would note NRC reco authorizing storage for limited periods of tire (gnizes that licenses i.e.,fiveyearsorless) and for very limited periods of time beyond 1996 may be necessary while new disposal capacity is developed. This statement would emphasize NRC's concerns regarding the States' comitment to disposal and problems with longer term storage of LLW. A policy statement wil's comunicate a Comission level position on how NRC intends to f acilitate the goal set forth by Congress in the LLRWPAA.

However, a policy ',tatement would not codify NRC's position or the requirements NRC would apply for issuing a license to a State for possession and storage of l'W beyond the 1996 4

deadline. A policy statement may also be more time intensive and difficult to develop than a letter to the Governors.

It may also be a more difficult mechanism in which to present positions that require subtle discussion and treatment such as the timeframe over which NRC will authorize storage after 1996. A policy statement may also demand a more detailed and imediate resolution of a broader range of issues involving storage at a time when such action could possibly limit or constrain future options.

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No Action NRC would take no action at this time but rather would continue to monitor States' progress in establishing new disposal capacity and would react to specific circumstances demanding NRC action such as issuance of licenses to possess and store LLW. States failing to develop disposal capacity may turn to the waste generators to store their waste, pending development of a disposal f acility. In such instances, NRC would apply existing guidance, assess the need for additional guidance and address individual licensee requests on a case-by-case basis to satisfy public health and safety considerations.

It is difficult to predict accurately all possible scenarios of this nature.

The main advantages of the no action approach are that no additional NRC resources are required at this time and the staff has flexibility to address each situation as it believes is appropriate. The major disadvantage to this course of action is that taking no action does not make known or emphasize NRC's policy and existing guidance and may place the agency in the position of reacting to regulatory questions rather than pro-actively addressing them.

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9 ENCLOSURE 3 i

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i The Honorable Rose Mofford Governor of Arizona State House Phoenix, Arizona 85007

Dear Governor Mofford:

This letter is a follett on to Rotert M. Bernero's February 10, 1989, letter that provided you with guidance and other relevant information to assist your State in meeting the 1990 milestone requirements of the Low-Level Radioactive Waste Policy Amendments Act (LLRWPAA) of 1985.

The LLRWPAA sets forth milestones, ir:entives, and penalties designed to ensure that States or regional compacts acl/ ve the goal of development of new disposal capacity for all LLW genera u d within their borders.

If a region or a non-member State of a compact cannot provide for the disposal of its waste after January 1,1993, any generator in that region or State may request that the State in which the generator is located take title to and possession of the waste or assume liability for the failure to do so. Alternatively, a State may elect not to take legal responsibility with the consequence being that generators are repaid a part of the surcharges that were collected earlier. At the final milestone, January 1,1996, States are required to provide disposal capacity or to assume title to and take possession of LLW generated within their borders, on proper notice by generators or owners.

The transfer to States of the title to LLW, and the possible assumption of possession of that waste, raise certain regulatory issues.

With respect to titletransfer,applicableNRCregulations(Title 10 Code of federal Regulations, Parts 30, 40, and 70) contain a general, license authorizing any person,includingaState,tobeanownerof(i.e.,taketitleto) radioactive materials.

Thus, the legal formality of States taking title to LLW for storage will focus on the laws of the various States pertaining to transfer of ownership of personal property.

Consequently, there are no significant health and safety regulatory issues germane to NRC for the transfer of title for LLW to the States. Possession of LLW, however, will require a specific license from either NRC or an Agreement State before a State can take possession of the waste.

I am therefore enclosing the regulations, 10 CFR Parts 30, 40, and 70, and four NRC guidance documents on interim LLW storage for fuel cycle and materials licensees and for power reactors for your information and use.

In addition, I am enclosing an assessment arepared for NRC by the Brookhaven National Laboratory of technical pro)1 ems attendant to the extended storage of LLW.

We would be pleased to answer any questions you may have on the management and disposal of LLW or, if you are an Agreement State, to assist in answering any questions your Agreement State regulatory agency may have.

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O The Honorable Rose 14offord 2

If you expect to take possession of LLW in 1993, you should plan on filing an application within twelve months of that date.

If you plan on relying on generators to store waste and they have concluded anendment of their NRC license is required to cover such storage, they should similarly apply for license anendment within twelve months of 1993, hRC will review each application following the enclosed guidance and will authorize storage for a single five year period.

Longer term LLW storage in excess of five years has been discouraged by the Commission in support of national policy, to reduce radiation exposures to personnel and to assure control of radioactive material. Thus, storage for a longer period of time may be subject to safety controls that go beyond the measures identified in the enclosed guidance for periods up to five years. This should be a consideration in your planning if you expect to take title and possession of LLW in 1996 which may have already been stored several years.

Should you or your staff have questions regarding the information contained here or should you wish to consult with us, please contact Richard L. Bangart, Director, Division of Low-Level Waste Managenent and Deconsnissioning.

Mr. Bangart can be reached at (301) 492-3340.

Sincerely, Kenneth M. Carr l

Enclosures:

1. 10 CFR Parts 30, 40, and 70

2. NRC Information Notice No. 90-09 r

3. NRC Information l

Notice No. 89-13 l

4. Generic Letter 85-14 l

5. Generic Letter 81-38

6. NUREG/CR-4062 l

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