ML20127G365

Recommends Commission Approve Notice of Proposed Rulemaking Amending 10CFR30,40,50,70 & 72 to Set Forth Procedures & Criteria for on-site Storage of low-level Radwaste After 960101

ML20127G365
Person / Time
Issue date:	11/09/1992
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-92-380, NUDOCS 9211160570
Download: ML20127G365 (101)

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RULEMAKING ISSUE November 9, 1992 SECY-92-380 Lor:

o The Commissioners James M. Taylor "

From:

Executive Director for Operations Sub.iec t : NOTICE OF PROPOSED RULEMAKING TO ESTAb, '> PROCEDURES AND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVtt. RADI0 ACTIVE WASTE, AFTER JANUARY 1, 1996

Purpose:

To obtain the Commission's approval of a notice of proposed rulemaking.

Summary: In a Staff Requirements Memorandum (SRM) dated January 30, 1992, the Commission directed the staff to develop a proposed rule that would establish a regulatory framework containing the procedures and criteria applicable to the on-site storage of low-level radioactive waste (LLW) beyond January 1, 1996. SECY-92-168, dated May 8, 1992, forwarded the proposed rulemaking to the Commission, for consideration and approval. The proposed rule included a requirement for the licensee to request that the State take title to, and possession of, the licensee's LLW, pursuant to the provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) (the "take-title" provisions), before LLW could be stored on-site after January 1, 1996. The take-title provision of the LLRWPAA was held to be unconstitutional by the United States Supreme Court (Supreme Court), on June 19, 1992, as applied to non-CONTACT:

Robert A. Nelson, NMSS NOTE: TO BE MADE PUBLICLY AVAILABLE (301) 504-2004 WHEN THE FINAL SRM IS MADE AVAILABLE 080063 )

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4 The Commissioners 2 compact States. In an SRM dated September 23, 1992, the Commission directed the staff to revise the rulemaking package, in light of this decision. The staff has implemented the Commission's directions for the rulemaking.

This paper presents a complete and revised rulemaking package, for Commission consideration and approval, including a regulatory analysis, an environmental assessment, a public announcement, and letters to Congressional oversight committees.

Backaround: Early in 1990, the Commission directed the staff to provide the Commission with information on the ., sues concerning the -

waste title-transfer and possession provisions set forth in the LLRWPAA, and to define approaches for implementing Nuclear Regulatory Commission responsibilities, under these provisions. The Commission was also interested in the adequacy of its existing regulatory framework for implementing these title-transfer provisions. The staff responded to the Commission on September 12, 1990-(SECY 318).

The Commission discussed the issues and recommendations of SECY-90-318 in a public meeting held on October 29, 1990.

At that time, and in response to a November 28, 1990, request from the Low-Level Radioactive Waste Forum, the Commission decided to solicit public and State comments on the staff's recommendations in SECY-90-318 and on eight questions, addressing the title-transfer provisions of the LLRWPAA. The Commission requested that the staff provide the Commission with an analpis of the comments received in response to the letter, dated Povember 28, 1990, from Samuel J. Chilk, Secretary cf the Commission, to Mr. Jerry Griepentrog, Convenor, L'.,w-Level Radioactive Waste Forum, and from the December 4,1990, Federal Reaister notice (FRN) soliciting public comments.

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The staff responded to this request on September 26,-1991 (SECY-91-306). The staff summarized and analyzed the responses to the eight questions and provided options for the Commission's consideration. In response to SECY-91-306, >

the Commission directed the development of a proposed rulemaking, in the SRM dated January 30, 1992. The SRM included .the amendatory text and requirements for the proposed rulemaking and directed the staff to coordinate the draft proposed rule with the Agreement States,.before forwarding it to the Commission, for consideration and approval.

The Agreement-States were informed of the proposed rulemaking, by letter dated February 7,1992, including the text of the draft proposed rule changes. Draft

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4 The Commissioners 3 supplementary information, which included a discussion of the applicable portions of the LLRWPAA and a discussion of the proposed revisions, was forwarded to the Agreement States on February 14, 1992, at which time the Agreement States were asked to provide comments by March 14, 1992.

Fourteen Agreement States and one compact commission responded to the staff's request for comments. ,

A proposed rulemaking package was forwarded to the ,

Commission on May 8, 1992 (SECY-92-168). The notice of j proposed rulemaking had been prepared in becordance with the )

ron irements set forth in the SRM dated January 30, 1992.

In addition to these requirements, the notice included:

Amendments to 10 CFR Part 72, which were identical to  ;

those for 10 CFR Parts 30, 40, and 70. I i

Responses to all comments received from Agreement States.

A record-retention period of three years.

A description of the measures that the staff-expected licensees to take to demonstrate compliance with the proposed rule.

A normal assignment of violations of the proposed rule-to enforcement severity level IV.

In addition, the amendatory text had been revised to limit the " collection or consolidation for shipment" exemption to those licensees that have access to an operating LLW disposal facility.

Under the provisions of-the May 8, 1992, draft proposed rule, on-site storage of LLW would not have been permitted after January 1,1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility),

unless the licensee could have documented that it had exhausted other reasonable waste management options. These options included the management of the waste by the State in which the waste generator is located. The amended regulations, as originally drafted, would have required.the licensee to request that the State take title to, and-possession of, the waste, pursuant to the LLRWPAA. Another option was that the licensee contract,.either directly or through the State, for the disposal of its waste. In addition, reactor licensees would have to document that on-site storage activities would be consistent with, and not i

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O The Commissioners 4 compromise, the safe opera; ion of the licensee's activities, and not decrease the level of safety provided by applicable regulatory requirements.

On June 19, 1992, the Supreme Court issued its decision in New York v. United States, regarding the constitutionality of the LLRWPAA. The Supreme Court decided that the take-title provision of the LLRWPAA, which was to take effect on January 1,1996, is unconstitutional, as applied to non-compact States such as New York, but severable from the remainder of the act. The Supreme Court upheld the remainder of the LLRWPAA.

In light of this decision, the Commission directed the staff to revise the rulemaking package, to delete the title-transfer option, but retain the option of contracting with operating disposal sites, in addition, the staff was directed to clarify that the Commission will not require the take-title option to be exhausted as a prerequisite to generators storing waste on-site after January 1, 1996. The staff has chosen to clarify this information in the preamble to the proposed rule. This direction was provided in the SRM dated September 23, 1992.

Discussion: The notice of proposed rulemaking (Enclosure 1) has been prepared in accordance with the requirements of the SRM dated September 23, 1992.

Resource Estimate No additional cost to NRC is expected, if this rulemaking is

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adopted. No formal reports are required. Therefore, there are no costs associated with report review and maintenance.

Records will be reviewed during periodic inspections. These reviews are not expected to appreciably increase NRC inspection resource requirements.

Coordination: The proposed rule, forwarded by SECY-92-168, was coordinated with the Advisory Committee on Nuclear Waste (ACNW) and the Committee to Review Generic Requirements (CRGR). ACNW comments were forwarded directly to the Commission. CRGR chose not to review the proposed rulemaking at this stage.

Because of the responses from ACNW~and CRGR and the nature of the revisions to the proposed rule, the staff has not coordinated the development of these revisions with either committee. The Office of the General Counsel has reviewed this paper and has no legal objection.

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4 The Commissioners 5 Recommendations: That the Commission:

(1) Approve a notice of proposed rulemaking-(Enclosure 1) that would amend 10 CFR Parts 30, 40, 50, 70, and 72, to set forth the procedures and criteria that would apply to on-site storage of LLW, beyond January-1, 1996.

(2) Certify that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities, to satisfy the requirements of the Regulatory flexibility Act (5 U.S.C. 605(b)).

(3) H21a that:

(a) The rulemaking would be published in the Federal Reaister for a 60-day comment period.

(b) A regulatory analysis has been prepared for this rulemaking (Enclosure 2).

(c) An environmental assessment has been prepared for this rulemaking (Enclosure 3).

(d) The proposed rule contains information-collection requirements that are subject to OMB review. An OMB supporting statement is being prepared for this:

- rulemaking. Upon Commission affirmation, formal request for OMB review and clearance will be initiated.

(e) The Subcommittee on Nuclear Regulation, of the Senate Committee on Environment-and Public Works, and the Subcommittee on Energy and Power, cf the House Committee--

on Energy and Commerce, and-the House

- Committee on Interior and Insular- Affairs will be informed of this rulemaking action. (Enclosure 4).

(f) Portions of- the proposed rule, if adopted, would be a matter of Agreement State compatibility. Agreement States have been informed of this contemplated rulemaking action and their comments have been solicited.

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The Commissioners 6 (g) The Chief Counsel for Advocacy of the Small Business Administration will be informed of the Regulatory Flexibility Certification and the reasons for it, as required by the Regulatory Flexibility Act.

(h) A public announcement will be issued (Enclosure 5).

(i) A copy of the proposed rule will be distributed to -11 affected licensees and other interesti., persons.

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N mes H. y or xecutive Director for Operations

Enclosures:

1. Notice of Proposed Rulemaking

2. Regulatory Analysis

3. Environmental Assessment

4. Congressional Letters

5. Public Notice l 6. 09/23/92 SRM Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Tuesday, November 24, 1992.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Tuesday, November 17, 1992, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional review and j comment, the Commissioners and the Secretariat should be apprised j of when comments may be expected.

DISTRIBUTION:

Commissioners i OGC OCAA OIG OCA OPP EDO ACNW ASLBP SECY-i

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.Q Enclosure 1 o

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[7590-01) .

NUCLEAR REGULATORY COMMISSION l 10 CFR Parts 30, 43, 50, 70, and 72 RIN 3150-AE22 Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

'rne Nuclear Regulatory Commission proposes to amend' its regulations for reactor, material, fuel cycle, and independent spent fuel storage licensees. The proposed rule would establish a regulatory framework containing the procedures and criteria that would apply to on-site storage of low-level' radioactive waste (LLW), beyond January 1, 1996. The Commission has determined, .under the authority of the Atomic Energy Act of 1954, as amended, that these changes are-appropriate because of potential health and safety concerns associated with the increased reliance upon on-site storage of LLW. The-proposed-rule is intended to support the goals that have been established by the Low-Level-Radioactive Waste Policy Amendments Act of 1985 l (Act) and is consistent 1With the June 19, 1992, United States j- Supreme' Court (Supreme Court) decision, in-New York v. United.

L States.

DATE: Comment period expires (60 days after publication).

Comments received after that date-will be considered if.it-is l

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- practical to do so, but_the Commission-is able to ensure consideration only for comments received on or before this date.

ADDRESSES: Submit written comments to: The Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 p.m. Federal workdays.

Copies of the regulatory analysis, environmental assessment and finding of no significant impact, and the comments received on the rule may be examined and copied, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC, telephone (202) 634-3273. '

l FOR FURTHER INFORMATION, CONTACT: Robert Nelson, Office of Nuclear Material Safety and Safeguards,_U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone'(301) 504-2004.

SUPPLEMENTARY INFORMATION:

The Low-Level Radioactive Waste Policy Amendments Act of~1985-(Act) (Pub. L.99-240) establishes a series _of milestones, penalties,_and incentives to ensure that. regional. compacts and States make' adequate progress-toward being able to manage their-

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LLW, by 1993. Section 5(a) of the Act requires the sited States of Nevada, South Carolina, and Washington to make disposal l capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting che other milestones o

of the Act, the sites remaining operational, and received waste- -

being within site-specific volume limitations.

To help ensure that the States make adequate progress toward developing new LLW disposal facilities, the Act established six milestones by which the States should make decisions and commit to certain actions. The majority of the States met the requirements of the three milestone dates that had passed, by January 1990. Only the Central, Central-Midwest, and Southwestern Compact States met the January 1, 1992, milestone "

requirement, because their host States, Nebraska, Illinois, and-California, respectively,- submitted a facility license application to their State regulatory authorities before that date. The State of Texas conformed to this milestone on March 2, 1992. The remaining milestones of the Act, as it-was enacted, are:

January 1, 1993 - If a State or compact cannot provide for' disposal of its LLW after January 1, 1993, generators can request the State to take title to,-and-possession of,:the--

i generated waste. The State also becomes' liable for damages as a consequence of failure to take possession of.the waste.-

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1 In-1993, States may avoid taking-title and-possession 1of the~

waste and assuming liability, but will forfeit the surcharge-rebates established by the Act.

January 1, 1996 - If a State or compact cannot provide for disposal of its LLW after January 1, 1996, the States, upon proper notice by the generator or owner, shall take title to, and be oblighted to take possession of,_LLW. The State will also be liab:e for all damages directly or indirectly 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 shipment.

, The section of the Act requiring the States to take title to, and I

j possession of, the generated waste by January 1,-1996 (often i referred to as the -"take-title" provision) , was held to be '

l unconstitutional, by the Supreme Couit on June 19, 1992, in a lawsuit brought by the State of New York (a non-compact State)-

and tuo of its counties. The constitutionality of the take-title provision, as applied to compact States,-was not-before the

- Supreme Court. Even though-the take-title provision was held-unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal-facilities by January 1, 1993,_

( and in no case-later than January 1, 1996. .

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Because new LLW-disposal facilities are not expected to be operational by January 1, 1993, and the compact commissions that control the existing LLW disposal sites are expected to'either-close or set conditions on receiving LLW from outside their-regional compacts on January 1, 1993, some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or.

disposal can be made. Nearly all the Covernors' Certifications submitted to meet the 1990 milestone of the Act indicated'that the State planned on interim storage by waste generators from 1993 through 1996. However, many States do expect to have ccess to the Barnwell LLW disposal facility from January 1, 1993 through June 30, 1994.

Early in 1990, the Commission directed the NRC staff to' provide-the Commission with information on the issues concerning the waste-title transfer and possession provisions set forth in the '

Act, so that the Commission might determine what role, if any, the NRC should play with regard to these provisions. The Commission was also interested in the adequacy of its existing regulatory framework for implementing-the title-transfer provision, on September 12, 1990, the'NRC staff sent the Commission an analysis of the issues associated with the waste title-transfer and possession-provisions-of the Act (SEF. J--

318). Major _ issues related to these_ provisions included. States.

taking possession of commercial LLW after 1993 or 1996, and 5

licensing of this possession by the NRC and Agreement States.

The Commission discussed the issues associated with the waste title-transfer and possession provisions of the Act and the recommendations presented in SECY-90-318, in a public meeting, on October 29, 1990. In response to a request from the Low-Level Radioactive Waste Forum, the Commission decided to solicit public and State comments on the NRC staff's recommendations provided in SECY-90-316 and on eight questions addressing the title-transfer provision of the Act. The Commission requested that the NRC staff provide the Commission with an analysis of the comments received in response to the letter dated November 28, 1990, from Samuel J. Chilk, Secretary of the Commission, to Mr. Jerry Griepentrog, Convenor, Low-Level Radioactive Waste Forum, and from the Federal Register notice soliciting public comments.

The Commission solicited public comment on the NRC staff's recommendations provided in SECY-90-318 and the eight questions in the Federal Register notice published December 4, 1990 (55 FR 50064). The comment period expired on March 2, 1991. Seventy-four individuals or organizations responded.

The commenters raised many specific issues. Most can be grouped under the single, broad issue of NRC's role in implementing the Act. The eight questions, a comment summary, an analysis of those comments, and conclusions are provided as Appendix A to 6

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-this proposed rule.. In response, the Commission directed the NRC-staff.to develop a proposed rulemaking that would_ establish a-regulatory framework containing the procedures and criteria applicable to on-site storage of LLW after January 1, 1996.

Although LLW can be safely stored, NRC believes that the protection of the public health and safety and the environment.is ,

enhanced by disposal, rather than by long term, indefinite storage of waste. Disposal of waste _in a limited number of facilities, licensed under the requirements of 10 CFR Part 61 or 4

compatible Agreement State regulations, will provide better prctection of the public health and safety and the environment-than long-term storage at hundreds or thousands of sites around the country. Stored waste packages need to maintain sufficient integrity to prevent dispersal of the waste during storage, transport, and handling, up to and including emplacement for-disposal. Because of the variability of certain storage

environments, waste packages may suffer-degradation over the extended storage period. Among the ways in which a storage environment can cause waste package degradation are temperature fluctuations (in heated _ facilities-in areas with cold winters) and corresive atmocpheres (e.g., industrial'and marine

. atmospheres as well-as acid deposition)._ other waste package

- concerns-during-storage. include external-and-internal-corrosion, radio]ytic generation of gases.(predominantly hydrogen) and -

i-corrosive-substances,-radiation induced embrittlement of i

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polyethylene containers, and biodegradation of institutional i I

wastes. These processes may accelerate internal corrosion and fa31ure of common storage containers, even if the waste is stabilized prior to storage. Waste form degradation could result in spills or releases during handling for disposal, if the degradation goes undetected. In addition, waste package  !

deterioration prior to disposal will require repackaging of the LLW and cleanup of any spills. As a result, workers will be a

potentially exposed to additional doses of radiation. The NRC contractor document, "

Extended Storage of Low-Level Radioactive Waste: Potential Problem Areas," NUREG/CR-4062, provides a detailed discussion of these concerns.1 Storage also involves a number of activities that could increase radiation doses to the public. First, storage of LLW will result in potential increased worker exposures, from unloading the waste from storage, for disposal. Second, waste forms may need to be repackaged or otherwise processed, again, as a result of waste l form failure or to meet waste acceptance criteria for a new I'

disposal facility, once one becomes available. This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal facility may

' Copies of NUREG documents may be purchased from the Superintendent of Documents, U.S.

Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082.- -Copies are also available from the National Technical Information Service,5285 Port Royal Road, Springfield, VA 22161. A copy is also available for inspection and/or copying at the NRC Public Document Room,-

2120 L Street NW. (Lower Level), Washington, DC.

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- . _ _ _ _ _ _ . _ _ _ . _ . _ . _ . . . _. . _ . . _ . . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ m necessitate these new waste form criteria and these' criteria may-not be known when LLW is placed into storage. Third, radiation i surveys and inspections of LLW-in storage will result in-potential additional doses to those involved in performing these i activities. For these reasons and to support the goals'of the-Act, the NRC is proposing this rulemaking, which makes storage of LLW an option of last resort. The Commission specifically invites comment on the above public health and safety rationale, as well as on the comparative risk of potential releases as a result of an event or uccident at numerous LLW storage sites  ;

around the country, as opposed to the potential release from a i limited number of disposal sites designed to meet the siting and design requirements in 10 CFR Part 61 or compatible Agreement.

State regulations.

The proposed rule, as it was originally drafted and sent to the Agreement States for comment, included a requirement for the  ;

licensee to request that the State take title to, and possession of, the waste, pursuant to Section 5(d) (2) (C) (the "take-title" provision) of the Act, before LLW could be_ stored on-site after

. January 1, 1996. The text of_the rule has been. revised-to delete the requirement for the generator to request =the State to take title to, and. possession of, the generator's LLW.-- In view of the recent Supreme Court decision =in New York-v. United States, the Commission will-not-require-this action-as-a prerequisite for storing LLW on-site after January 1, 1996.

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4 Coordination with NRC Agreement States The NRC Agreeme.nt States were informed of the NRC's intent to l-issue a proposed rule and were provided the draft-regulatory i

text, by letter dated February 7, 1992. The letter explained that the Commission is taking this action in view of the potential health and safety concerns associated with an increased l

l reliance upon on-site storage and in light of the framework that has been established by the Act. This initial notification reiterated the Commission's position that it will not look favorably on generator on-site storage of LLW, after January _1, 1996. Supplementary information, which included a summary of the related provisions of the Act and a discussion of the proposed __

revisions, was forwarded to the Agreement States on February 14, 1992. The Agreement States were asked to provide comments by March 14, 1992.

The Agreement States of Arizona, Arkansas, California, Colorado, Illinois, Kansas, Kentucky, Nevada, New York, North Carolina, Oregon, South Carolina, Texas, and Washington, and the Midwest Interstate Low-Level Radioactive Waste Commission responded to the NRC staff's request for comments. One State-_ supported-the l proposed rulemaking, and-three States opposed it. TwoLStates,-

although not opposing any-provisions of the rule,--stated that-the rulemaking should not proceed until1the Supreme Court decides on u

L the constitutionality _of the Act and the title-transfer 10 -

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provision. Three States and the one-commission provided comments and questions without taking a position on the proposed rulemaking. One State reserved comment and four States had no comments. Fifteen Agreement States did not. respond, Response to NRC Agreement State Comments Comment. The revisions do not appear to be based on protection of public health and safety cr any technical arguments.

Response. As previously discussed, the potential risk to the public health and safety, from on-site storage ofELLW, is greater than for dispecal, because storage involves a number of '

conditions arud activities that could increase radiation doses to the public. Although LLW can be safely stored, the NRC believes that the protection of the public health and safety and the environment will be enhanced by disposal.

Comment. There appears to be no-substantive rationale for prohibition of on-site storage after January 1, 1996.

Resoonse. The proposed rule would prohibit on-site storage _-after January 1, 1996, only if the generator had not exhausted other waste management options. As discussed in response to the previous comment, disposal is preferred over storage, to enhance the protection of the public health a.nd safety.and the environment.- Therefore, generators.should exhaust all-disposal options before storing their LLW on-site.

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Comment. The proposed revisions would improperly establish NRC l as the enforcer of the "take-title" provisions, . contrary to the I

Act.

Comment. It is inappropriate for NRC to require, as a condition l for on-site storage, that licensees request the State in which ..

they are located to take title to, and possession of, the waste, pursuant to Section 5(d) (2) (C) of the Act, because the Act gives licensees the option not to request the State to take possession. i Comment. One State has a different law regarding title: " Title to any LLW shall at all times remain in the generator of such waste...." The proposed rule conflicts with State law.

Response. The text of the rule, which had been provided to the Agreement States for comment, has been revised to delete the requirement for the generator to request the State to take title to, and possession of, the generator's LLW. In view of the recent Supreme Court decision in Hew York v. United States, the commission will not require this action as a prerequisite for storing LLW on-site after January 1, 1996.

Comment. What legal authority does the Commission have to impose the prohibition of possession of LLW, by'the State, at a generator's facility?

Comment. How can "the prohibition" of State possession of LLW, at the generator's facility, be reconciled with the language of-the Compact Act, which authorizes "... management of waste on the site where it is generated if such is otherwise lawful?"

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L Resnonse. .It is not' envisioned that a State would take 1

i possession of LLW at a-generator's facility, l

j Comment. It is inappropriate for NRC to require, as a condition j

p. for on-site storage, that licensees exhaust the contract option of Section 5(e) (1) (F) of the Act as a condition for on-site storage. This section of the Act applies to States, not licensaes. -

Response. The NRC agrees that Section 5(e) (1) (F) of the Act '

applies to States but not licensees. The text of the rule, which was provided to the Agreement States for comment, has been revised to eliminate the reference to this section of the Act.

Comment. The rule is silent with regard to financial surety aspects of extended storage, and " totally ignores" the requirements that would be placed on States that take title to, and/or possession of, LLW, after January 1, 1996.

Response. Financial assurance requirements for the affected-licenses are contained in 10 CFR 30.35, 40.36, 50.75, 70.25, and 72.30. Financial assurance guidance for fuel cycle and materials licensees is provided in Information Notice 90-09, " Extended Interim Storage of Low-Level Radioactive Waste by Fuel Cycle and.

Materials Licensees."

Comment. If NRC continues to pursue the "no on-site storage" option past January 1, 1996, as the NRC staff proposes, it will-13

-be'NRC's responsibility to. provide for emergency access to

~

operating LLW disposal facilities for the LLW it prohibits from on-site storage.

Resnonse. The NRC is not pursuing a "no on-site storage" option.

The NRC recognizes that some generators will-have to store LLW on-site. The NRC seeks to minimize the amount of LLW placed in storage, by requiring generators to exhaust all other reasonable l

waste management options. The guidance governing implementation of the emergency-access provision, of the Act, contained'in Information Notice 91-65, " Emergency Access to Low-Level Radioactive Waste Disposal Facilities," will remain in effect.

The NRC does not anticipate any situation where the provisions of this rule, in addition to a lack of access, would create a serious and immediate threat to the public health and safety or common defense and security, thereby requiring' emergency access. l i

1 i

Comment. A more immediate concern, directly related to the l

-1 storage of waste, is the authority of a' generator to accept its - ,

processed waste after this waste has been sent off-site for 5

treatment. _.

Resnongs. The'NRC has initiated a rulemaking to allow nuclear power reactor licensees to receive back LLW after off-site treatment.

Comment. Any rulemaking on this issue must incorporate maximum e flexibility, consistent-with the. protection of the-public health 14

_ _ - . _ . _ ~ _ _ . , . . _ . , . _ _ . - . _ . _ _ . . _ - - _ . _ . _ _ _ . - , _,. -

. - . - . . - - - - ~. . - - - . . - - -

. ~

and safety and the environment.

Response. Maximum flexibility has been considered. The proposed

, rulemaking does not preclude'on-site LLW storage, as long as other waste management options are exhausted.

Comment. NRC's guidance would be expected to be consistent and '

compatible with NRC actions taken with respect to indefinite storage of high-level radioactive waste (HLW).

Response. The LLW situation is significantly different from that of HLW. Under the Nuclear Waste Policy Act of 1982, as amended, the Federal government is developing a facility for disposal of HLW. In the LLW program, it is the Commission's judgment that the NRC's regulations will encourage disposal by requiring generators to seek available disposal options. Furthermore, unlike HLW, commercial LLW disposal sites are currently operational, and development of new LLW disposal facilitics continues, with two new facilities scheduled to be operational by January 1, 1996. The risk to public health and safety from hundreds or thousands of temporary storage facilities is greater than that from a limited number of well-controlled dieposal sites _

in the country.

Comment. There should be a definition that deccribes when' l l

radioactive material ~becomes waste.

Resoonse. The term " waste" is-defined in 10 CFR 61<2.' Waste is considered to be any material or component for wh'ich the licensee

.. i 15 - - .

l 1

f

foresees no further use. The NRC continues to believe that the licensee is in the best position to determine the continued utility, of radioactively contaminated material and components, to its operations. The NRC will continue to rely on the licensee to determine when material and components become waste and will periodically review the licensee's conclusions, to determine if they are reasonable and appropriate.

Comment. Does any provision of the Act prohibit a State from exercising its powers of eminent domain, and thereby moving to condern existing licensee facilities, to establish a LLW management program for generators at the site.

Response. Although the NRC knows of no such provision, any exercise of a State's power of eminent domain would have to comply with applicable law.

Comment. There should be a maximum time limit, for "short-term,"

that would apply equally to all forms, including decay-in-storage. This commenter recommends a maximum storage time of one year. This commenter also states that this will allow sufficient time for isotopes with short half-lives to decay sufficiently for disposal in a sanitary landfill.

RespoDE2 Generally, for non-medical LLW, radioactive material wit a halt' life of less than 65 days can be held in storage before dispoaal as non-radioactive material. If allowed by the license, LLW disposed of in this manner must be held for decay a 16

l minimum of 10 half-lives. Decay in storage for medical waste is ,

governed by 10 CFR 35.92. The proposed rule would not affect ,

this practice.

i l

Comment. To whom does the revision apply? As the State is required by the Amended Act to take possession, is the proposed i la quage intended to cover that time interval between the-licensee requesting the State to take possession and the State actually taking possession?

Response. The proposed rule would apply to all LLW generators licensed under 10 CFR Parts 30, 40, 50, 70, and 72. As discussed

, in response to an_ earlier comment, the text of the rule, which had been provided to the Agreement States for comment, has been J

revised to delete the requirement for the generator to request-the-State to take title to, and possession of, the generator's i

LLW.

Comment. Will NRC licensees be required or encouraged to ship all wastes before January 1, 1993, that will reach five years in storage, between January 1, 1993, and January 1, 19967 Response. Guidance on storage, which is optional, in Generic Letters 81-38 and 85-14, and Information Notices-89-13 and 90-09, includes-consideration of keeping storage to limited periods-of-time (i.e., five years or less) and emphasizes shipment of LLW-for final disposal. It'is_the NRC's policy that licensees should continue to ship LLW,- for disposal, to the maximum extent 17 1r * . ,n e - ev,h .r-~www- re-----rw u r'ee*.-ew- ,..-.-%- . , - - - - , -,,v i+re- 4 e-- w- +---,--4-,-w--, ,,..v-w .w ,----wer----- --re,ww.ww r w- r - , sw ye w ---nv.m---,r-vr--ev,vr<ve1,-,--

practicable. Although the NRC has not set specific dates or deadlines for LLW shipments, Generic Letter 81-38 states that a Part 30 license should be obtained if the time in storage exceeds five years.

Issue of Compatibility with Agreement States opinion varied among the 14 Agreement States that responded, on the issue of compatibility. Two States commented that this rulemaking should not be a matter of compatibility; one State recommended Division 1 (regulation must be adopted verbatim); two States recommended Division 2 (language identical to that in NRC rules is not necessary, provided that the underlying principles are the same); one State recommended Division 3 (States are encouraged to adopt the regulatory approach taken by the NRC, but are not required to do so); and eight States did not comment on compatibility.

The NRC considers the proposed implementation of these amendments to its licensing conditions to be directly related to the basic regulatory function of protecting the public health and safety and the environment. Unless the proposed rule is made a matter of compatibility, the waste management practices in both Agreement States and non-Agreement States could be inconsistent, and the Commission's goal to encourage disposal would be 18

y frustrated. Therefore, the amendments contained in this proposed rule would be a matter of compatibility for NRC Agreement States.

The additional license conditions for LLW on-site storage, after January 1, 1996, in 10 CPR 30.34, 40.41, and 70.32, are considered to be Division 2 categories of compatibility.

Although Agreement States must adopt Division 2 rules in their regulations, the use of language identical to that in NRC rules is not necessary, provided that the underlying principles are the -

same. The Agreement States may adopt more restrictive requirements.

The Commission is-currently considering a re-evaluation of its-compatibility policy and may decids to revise its general requirements regarding compatibility for the Agreement States.

The Commission's compatibility determination, on this proposed rule, would be re-examined in light of any change to the general policy.

Discussion of Proposed Revisions The proposed rule would establish procedures and criteria, for on-site storage of LLW, that would apply to all categories of LLW generators. On-site storage of-LLW would not be permitted after January 1, 1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation for-shipment off-site, in the case where the licensee has access to 19

-q

an operating LLW disposal facility), unless the licensee can l

document that it has exhausted other reasonable waste management l options. The NRC's proposed regulations would require that the ,

1

, licensee attempt to contract, either directly or through the '

I State, for the disposal of its waste. In addition, reactor  !

' l licensees would have to document that on-site storage activities i would be consistent with, and not compromise, the safe operation 3 of the licensee's activities, and would not decrease the level of i

safety provided by applicable regulatory requirements. In view of the recent Supreme Court decision in New York v. United States, the Commissitn will not require the generator to request that the State take title to, and possession of, the war'e, as a prerequisite for storing LLW on-site after January 1,-1996. Even  !

though the take-title provision was held unconstitutional,  ;

clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996. To support the goals of the LLRWPAA and its legislated preference for disposal over storage of LLW, the NRC has concluded that action is necessary to require licensees to  ;

exhaust other reasonable management options before on-site storage of LLW will be-permitted after January 1, 1996.

The exemption for collection or consolidation for shipment off-site is limited to those licensees that have access to an {

operating LLW disposal facility. Without this limitation, licensees not having access to a disposal facility could avoid or 20

. . _ . . , _ __ _ _ _ _ . _ _ _ _ _ _ _ . _ . - . _ -._~ _________ _ ___- - - , , _

i a

f r duy tne actions required by the proposed rule, by " collecting  ;

.r consolidating for shipment off-site," when disposal facility 5 access becomes available.  !

The proposed rule would make these requirements standard license conditions f or every license issued for reactor, materials, fuel cycle, and independent spent fuel storage licensees. The rulemaking would amend 10 CFR 30.34, 40.41, 50.54, 70.32, and 72.44. These sections of the regulations identify standard i conditions for reactor, materials, fuel cycle, and independent ,

l spent fuel storage licenses. The licensee would not be required to make a formal submittal to the NRC, to show compliance with these conditions. The proposed rule would require that all i

relevant documentation of the steps taken to satisfy the requirements of this rulemaking be maintained by the licensee, and be made available to the NRC, for inspection. *

'To show compliance with this proposed rule,-the NRC would expect the licensee to make an annual request for access to each operating commercial LLW disposal facility, for disposal of-the ,

licensee's LLW. Adequate documentation of the licensee's efforts ,

to exhaust other reasonable waste management options would consist of copies of all correspondence to LLW disposal facility operators and responses to these requests. This documentation shall_be retained for at least three years. The NRC will-verify- ,

compliance, by reviewing this documentation,--during periodic e

21.

~-- . .. .-..=.-u--..-..-..--.-__._-.-..__... -- - _ - - . , - - , , .

1 l

inspections, and at other times, as may be necessary, to 1 determine whether additional inspections or other regulatory  ;

attention is required. Absent a willful act, any non-repetitive violation of these requirements would normally be considered a  !

Severity Level IV violation under the Commission's Enforcement Policy, contained in Appendix C to 10 CFR Part 2.

on-site storage of LLW resulting from reactor operations can be l undertaken pursuant to the existiry authorition and procedures, ,

such as 10 CFR 50.59, and all relevant licensing and regulatory requirements applicable to on-site storage. Material, fuel cycle, and independent spent fuel storage licensees may store LLW on-site if storage: (1) is authorized under the existing license conditions; and (2) is consistent with existing authorities and.

procedures, and all-relevant licensing and regulatory requirements applicable to on-site storage.

The Commission continues to hold the position-that it will not look favorably on generator on-site storage of LLW, after January 1, 1996. It considers the on-site storage of LLW to be a last-resort measure. The Commission's preference is that LLW be-permanently disposed of as soon after it'is-generated as possible.

i This proposed rule would supplement, but not supersede, the existing regulations and guidance applicable to storage of LLW.

22 t

. - _ , . , . _ _ - _ _ _ . _ _ . . . _ . . _ . _ _ , - . _ _ . . . . . . . . . - . _ _ _ - . _ _ _ . , _ . _ - . , _ , . _ - - . , - ~ _ . -

The conditions in themselves would not authorize on-site storage.

The existing regulatory and licensing framework will continue to be applicable. The following seven documents, in conjunction with the regulations in 10 CFR Parts 20, 30, 40, 50, 70, and 72, provide this framework for LLW storage. However, note that the generic letters and information notices are informational and not binding. These documents are available, for inspection and copying, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC.

Applicable Licensing-Framework Documents for On-Site LLW Storage Type Ep. T_itle Generic Letter 81-38 " Interim Storage of Utility Licensee-Generated Low-Level Radioactive Waste at Reactor Sites" Generic Letter 85-14 " Commercial Storage at Power Reactor Sites of Low-Level Radioactive Waste Not Generated by the Utility" Information Notice 89-13 " Alternative Waste Management Procedures in Case of Denial of Access to Low-Level Waste Disposal Sites" Information Notice 90-09 " Extended Interim Storage of Low-Level Radioactive Waste by Fuel Cycle and Materials Licensees" Regulatory Guide 1.143 " Design Guidance for Radioactive Waste Management Y

l Systems, Structures, and l Components Installed in Light-Water-Cooled Fuclear Power Plants" 23

i Standard Review Sec. 11.4 " Solid Waste 14anagement Plan (11UREG-0800)2 Systems" Inspection and 80-18 "10 CFR 50.59 Evaluations for Enforcement Changes to Radioactive Waste Circular 14anagement Systems" Finding of 11o Significant Environmental Impact: Availability The Commission has determined, under the 11ational Environmental -

Policy Act of 1969, as amended, and the Commissien regulations in Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This proposed rulemaking would supplement, but not supersede, the existing regulatory framework applicabic to the storage of LLW. The additional conditions of this rulemaking, in thenceives, would not authorize on-site storage. These amendments would add administrative and verification requirements to existing regulations governing the licensing of byproduct material, source material, production and utilization facilities, special nuclear material, and independent spent fuel storage. The proposed rule would encourage disposal as opposed to storage, and this should have beneficial Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing OfGee, P.O. Box 37082, Washington, DC 20013 7082. Copies are also available from the National Technical Information Service,5285 Port Royal Road, SpringGeld, VA 22161. A copy is also available for inspection and/or copying at the NRC Public Document Room,2120 L Street, NW, (Lower Level), Washington, DC.

24 l

environmental effects. The proposed rule would not result in any increase in radiation exposure from transportation of LLW, compared to that expected from the ultimate disposal of LLW envisioned by the Act. Any environmental impact of operating an on-site LLW storage facility will be addressed, as required, as part of the licensing action for that facility, under previously established regulatory requirements. The environmental assessment and finding of no significant impact, on which this -

determination is based, may be examined and copied, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level),

Washington, DC, telephone (202) 634-3273.

Paperwork Reduction Act Statement This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44.

U.S.C. 3501 et seq.). This rulemaking has been submitted to the Office of Management and Budget-for review and approval of the paperwork requirements.

The public reporting burden for this collection of information is estimated to average 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> per response, including the time

'for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of ihformation._ Send comments-'regarding-this burden estimate or-any other aspect of this collection of 25

k i

information, including suggestions for reducing this burden, to the Information and Records Management Branch (MNBB-7714),, U.S.

Nuclear Regulatory Commission, Washington, DC 20555; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-3109 (3150-0017, 3150-0020, 3150-0011, 3150-0009, and 3150-0132),

Office of Management and Budget, Washington, DC 20503.

Regulatory Analysis .

l l

The Commission has prepared a draft regulatory analysis on these '

proposed amendments. The analysis examines the costs and 4

benefits of the alternatives considered by the Commission. The draft analysis may be examined and copied, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), '

Washington, DC, te lepho.10 (202) 634-3273.

The commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC, as indicated under the " ADDRESSES" heading.

Regulatory Flexibility-Certification As required by the Regulatory Flexibility Act of 3980 (5 U.S.C..

605(b)), the Commission certifies that this rule, if promulgated,

-- will not have a significant economic impact on a substantial number of small entities.. The proposed rule affects 26

,, #,,n- ,r ,, ,,m...,--#,,..g m-.g,4aym.w,_#_,%,m,m,4_ y,%.-%,. . . , _ _ , -g,.,,y,, y,,,,,,.,-,.,w,,-,3-.. .,,w,,.,% cm-.-,,p._,.,_,,-y-,- ,

i

• I 9

approximately 6600 NRC licenses under 10 CFR Parts 30, 40, 50, 70, and 72. Of this total, approximately 2000 are small i

entities. The proposed rule will require licensees planning to store LLW beyond January 1, 1996 (except for other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site in the case where the licensee has access to an operating LLW disposal facility) to document that other reasonable waste management options have been exhausted: 'The required documentation and maintenance of these records will require minimal administrative resources. Licensees will need to prepare and mail letters to

appropriate LLW management authorities, retain all relevant documentation, and make those records available for NRC inspection. The annual recordkeeping burden imposed by the proposed rule is estimated to be 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> for the average licensee. The NRC does not believe that this burden will have a significant economic impact on small entities.

i

?

Backfit Analysis The proposed rule does not constitute "...the modification of or  ;

addition to systems, structures, components, or design of a t

facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility...." Therefore, the proposed action is not a backfit, as defined in liO CFR 50.109.- The l 27 l

L I

l-l

. . . , , - ,n,. - - - - , , - , - . - - . . .-,,-r_....- . . . . . - , _ . , ,..._L------

_ . _ _ . ~ . _ _ _ _ _ _ ._. _ . _ _ _.._ _ _ _ _ . . _ _. _ .. _ _ . _ _ _ . _ _ _ .

proposed rule primarily addresses the off-site disposal of low-level radioactive waste, generated as a result of reactor j operation. The existing regulatory framework, applicable to assuring the safety of on-site storage of low-level radioactive waste, generated by reactor operations, remains unchanged. The NRC is seeking public comment on the backfit analysis. Comments should be sent to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attn: Docketing and I

Service Branch.  !

J List of Subject Terms 10 CFR Part 30 .

Dyproduct material, Criminal penalty, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements..

10 CFR part 40 Criminal penalty, Government contracts, Hazardous materials -

transportation, ivuclear materials, Reporting and recordkeeping :

requirements, source material, Uranium.

28

4 10 CFR Part 50 Antitrust, Classified information, Criminal penalty, Fire prevention, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.

10 CFR Part 70 Criminal penalty, Hazardous materials - transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Security measures, special nuclear material.

't 10 CFR Part 72 Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requiremer.ts, security measures, Spent fuel.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy

- Reorganization Act-of-1974, as amended, and 5 U.S.C.: 5 5 3 ,--- t h e - N R C -

is proposing to adopt the following amendments to 10 CFR Parts 29 Mukuduhkiim l l -

. . _ _ . _. _ . . _ . _ _ _ _ _ _ _ _ _ _ _ . . - _ _ _ _ _ . _ _ . _ . ~ _ _ _ __ - . _ ___ __.._-_._.

I l

30, 40, 50, 70, and 72.  ;

I PART 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING l OF BYPRODUCT MATERIAL i

1. The authority citation for Part 30 is revised to read as follows:

Authority: Secs. 81, 82, 161, 182, 183, 186, 68-Stat. 935, [

948, .53, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201, 2232, 2203, 2236, 2282); i secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended,_1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 30.7 also issued under Pub. L.95-601, sec. 10, 92 {

Stat. 2951 (42 U.S.C. 5851). Section 30.34 (b) also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 30.34(j)-also issued under Pub. L.99-240, sec. 102, 99 Stat.

1842 (42 U.S.C. 2021). Section 30.61 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); SS30.3, 30.10, 3 0. 34 (b) , (c), (f), (g), (i), and (j), 20.41(a) and (c), and 36.53 are issued under sec. 161b,_ 68 Stat. 948, as amended (42 U.S.C. 2201(b)); S30.10 is' issued under sec. 1611,-68 Stat, 949, as amended- (42 U.S.C.' 2201(i)); and SS30.6, 30.9,=30.34(g) and (j), 30.36, 30.50, 30.51, 30.52, 30.55, and 30.56(b) and (c) are issued under sec. 161o,168 Stat.

30

950, as amended (42 U.S.C. 2201(o)). ,

2. In ,10.34, paragraph (j) is added to read as follows:

i S30.34 Terms and conditions of licenses.

i (j) The following conditions are contained in every license (

issued under the regulations in this part.

(1) Low-level radioactive waste (LLW) may be stored on-

• site, provided.it is authorized under existing conditions of the license, and storage is consistent with existing authorities and procedures, and all relevant licensing and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (j) (2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996  :

(other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site,. in the i l

case where the licensee has access-to an operating-LLW disposal L facility), the licensee shall document that it has exhausted other reasonable waste management options which would include 1

taking all reasonable steps to contract, either directly-or .

through the State,-for-disposal of LLW.-

(3) The licensee shall-retain all relevant documentation-31 '

t

- - _ - - . . - - - - - - . - . . . - - . . -- ~_ _ . . _ . . -

regarding the actions taken pursuant to paragraph (j)(2) of this l t

section, for at least three years, end shall make the  :

documentation.available for NRC inspection.  ;

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

3. The authority citation for Part 40 is revised to read as follows:

Authority: Secs. 62, 63, 64, 65, 81, 161,_182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs.

11e(2), 83, 84, Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2 014 (e) (2 ) , 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, t

2282); sec. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C. 2021);

secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, i 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat.-3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).

Section 40.7 also issued under Pub. L.95-601, sec. 10, 92 5 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.41(h) also issued under Pub._L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C.

2021). Section 40.46 also issued under sec. 184,-68 Stat. 954, ,

as amended (42 U.S.C. 2234).- Section 40.71 also issued under '

sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

32 -

(

l-

, _ , . , , _ . _ . . - - - ,, ._..~_.a., _ _ _ . - .a_,....._,__._.,_.,_.-._.--. , _ . - . - - . . -

Toi the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); 5540.3, 4 0. 2 5 (d) (1)-(3) , 40.35(a)-(d) and (f),

40.41(b), (c), and (h), 40.46, 40.51(a) and (c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C.

2201(b)); $40.10 is issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and 5540.5, 40.9, 40.25(c), (d) (3 )

and (4), 4 0. 2 6 (c) (2) , 40.35(e), 40.41(h), 40.42, 40.61, 40.62, 40.64, and 40.65 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

4. In 540.8, paragraph (b) is revised as follows: ,

S40.8 Information collection reauirements: OMB anoroval.

(b) The approved information collection requirements ,

contained in this part appear in SS40.25, 40.26, 40.31, 40.35, 40.41, 40.42, 40.61, 40.64, 40.65, and Appendix A.-

l l

_.._2_,._ . ~ _ . . . - _ _ . , _ . _ _..i.. ._.._.-..._.,..-_,_.____._-_..--_..,....---.-,.;___n,..,__..._,

i

• i i

5. In 540.41, paragraph (h) is added to read as follows e

S40.41 Terms and conditions of licenses.  !

-l (h) The following conditions are contained in every license issued under the regulations in this part. [

(1) Low-level radioactive waste (LLW) may be stored on- ,

4 ,

site, provided it is authorized under existing conditionsaof the  ;

license, and storage is conuistent with existing authorities and procedures, and all relevant licensing and regulatory requirements applicable ts on-site storage. LLW may not be stored on-site by the gercrator beyond January 1, 1996, except as specified in paragraph (h) (T.) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the case whern the licensee has access to an operating LLW disposal' facility), the licensee shall document that it has exhausted other reasonable waste management options which would include taking all reasonable-steps to contract, either directly or through the State, for disposal of LLW.

(3) The licensee shall retain all relevant documentation ,

regarding the actions taken pursuant to paragraphs (h) (2) of this section, for at least three years, and shall make the t

4 34 .

- . _ . , . . _ - . _ .. _._.__ _ _ u _~.,_._.-_.

.. . . , . _ ~ _ _ _ __ .; -. _ ,. - -

4 documentation available for NRC inspection.

PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 4

i FACILITIES

6. The authority citation for Part 50 is revised to read as follors:

Authority: Secs. 102, 103, 104, 105, 16 , 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2155, P201, 2232, 2233, 2236, 2239, 2282); secs. 201,-as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246, (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under

, secs. 101, 185, 68 Stat. 936, 955 as amended (42 U.S.C. 2131, i

2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.13 and 50.54(dd) also issued under sec. 108, 68 Stat.

j 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, 7

_ and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C.

-2235). Sections 50.33a, 50.55a, and Appendix Q also issued under k sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

1 Sections 50.34Jand 50.54 also issued under sec. 204, 88 Stat.

1245 (42 U.S.C. 5844). Section 50.54 (ff) also issued under Pub.

L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C. 2021). Sections 35 1

. 1 i

S0.58, 50.91, and.5n.92 also issued under Pub. L.97-415, 96 I Stat. 2073 (42 U.S.C. 2239). Section 50.78 also jssued under

' i sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80 81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C.  ;

2234). Section 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F also issued under sec. !i 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), SS50.5, 50.46(a) and (b), and 50.54 (c)- and (ff) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C.

2201(b) ) ; $S50.5, 50. 7 (a) , 50.10(a)-(c), 50. 34 (a) and (e),

50.44(a)-(c), 50.46(a) and (b), 50.47(b), 50.48(a), (c), (d), and (o), 50.49(a), 50. 54 (a) (1) , (i) (1) , (1) -(n) , (p), (q), (t), (V),  ;

3 and (y), 50.55(f), 50.55a(a), (c)-(e) , (g) , and (h), 50.59(c),

50.60(a), 50.62(b), 50. 64 (b) , 50.65, and 50.80(a) and~ (b) are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C.

2201(1)); and SS 50.49(d), (h), and (j), 50. 54 (v) , (z), (bb), ,

(cc), (dd), and (ff), 50.55(o), 50.59(b), 50.61(b), 50.62(b), I 50.70(a), 50.71(a)-(c) and (e), 50.72(a), 50.73(a) and (b),

50.74, 50.78, and 50.90 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

36 i

~e ., . . ~_-+ -m.~-, ..__ -,- ,_,,, - _- - m._ _ m. ,m.,,,,r m - . _.r,..me_....._, ._, , . . . . . , . -,..,_,.,.,-y., ,,,-y m-.-

. _ . _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ . _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ _ _ _ . - _ _ . _ ~ _. ._

d f

7. In S50.54, paragraph (ff) is added to read as follows:

S50.54 Conditions of licenses.

(ff) (1) On-site storage of low-level radioactive waste '

(LLW) may be undertaken pursuant to existing authorities and procedures, such as 10 CFR 50.59, and all relevant licensing and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (ff)(2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-tern storage necessary for decay or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that --

(1) The licensee has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either directly or through the State, for the disposal of LLW; and (ii) On-site storage activities will be consistent with, and i

not compromise, safe operation of the licensee's activities, nor decrease the level of safety provided by applicable regulatory requirements.

(3) The licensee shall retain all relevant documentation 37

regarding the actions taken pursuant to paragraphs (f f) (2) (1) and (11) of this section, for at least three years, and shall make the documentation available for NRC inspection.

PART 70 - DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

8. The authority citation for Part 70 is revised to read as follows:

Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234,-83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2201, 2232, 2233,-2282); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 U.S.C. 5d41, 5842, 5845, 5846).

Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 70.7 also issued under Pub. L.95-601, sec._10, 92 Stat. 2951 (42 U.S.C. 5851). Section 70.21(g) also issued-under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 70.31-also issued under sec. 57d, Pub. L.93-377, 88 Stat. 475 (42 U.S.C. 2077). Section 70.32(1) also issued under Pub. L.99-240,-

sec. 102, 99 Stat. 1842 (42 U.S.C. 2021). Sections 70.36 and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42 i U.S.C. 2234). Section 70.61 also issued _under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

l 38- '

l

a i

For the purposes of sec. 223, 68 Stat. 958, as amended (42 r

U.S.C. 2273); 5570.3, 70.10, 70.19(c), 70.21(c), 70.22(a), (b),

(d)-(k), 70.24(a) and (b), 70.32(a)(3), (5) and (6), (d), (1),

and (1), 70.36, 70.39(b) and (c), 70.41(a), 70.42(a) and (c),

4 70.56, 70.57(b), (c), and (d), 70. 58 (a)-(g) (3 ) , and (h)-(j) are  ;

issued under sec. 161b, 68 Stat. 948 as amended (42 U.S.C.

2201(b)); S570.7, 70.10, 70.20a(a) and (d), 70.20b(c) and (e),

70.21(c), 70. 24 (b) , 7 0. 3 2 (a) (b) , (c), (d), (c), and (g), 70.36, 70,51(c)-(g), 70.56, 70.57(b) and (d), and 70. 58 (a)-Tg) (3) and (h)-(j) are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and S570.5, 70.9, 70.20b(d) and (c), 70.32(1), l 70.38, 70.50, 70.51(b) and (1), 70.52, 70.53, 70.54, 70.55, l 70. 58 (g) (4 ) , (k) and (1), 70.59, and 70.60(b) and (c) are issued under sec. 161o, 68 Stat 950, as amended (42 U.S.C. 2201(o)).

9. In S70.32, paragraph (1) is added to read as follows:

A S70.32 Conditions of Licenses.

(1) Tne following conditions are contained in every license issued under the regulations in this part:

.(1) Low-level radioactive waste (LLW) may be stored on-site, provided it is authorized under existing conditions of the license, and storage is consistent with existing authorities and 39

.+e-*.-e..e-+w-m

I

• i procedures, and all relevant licensing and regulatory ,

requirements applicabic to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as j specified in paragraph (1) (2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the o case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include  :

taking all reasonable steps to contract, either directly or through the State, for disposal of LLW.

(3) The licensee shall retain all relevant documentation regarding the actions taken pursuant to paragraphs (1) (2) of this section, for at least three years, and shall make the -

I documentation available for NRC inspection.

PART 72 - LICENSING REQUIREMENTS FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

10. The authority citation for Part-72 is revised to read as follows:

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929,.930, 932, 9 3 3 , .- 9 3 4 , 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as 40

+

)N-*-1r+-4gi y iiyW.---e=+r-arg-t-w*re14m yy pysysn-'r-e grp y - e + emw p-*'TW tz$T?N'W ^'+=r9'TPMN4 ^ Prt'""PT*#e'-t*8-rl-'F T*#

i amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec.-

, 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L.95-601, sec. 10, 92 Stat.

l 2951 (42 U.S.C. 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133, 135, 137, 141, Pub. L.97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168).  ;

Section 72.44(g) also issued under secs. 142(b) and 148(c),

(d), Pub. L. 100-203, 101-Stat. 1330-232, 1330-236 (42~U.S.C.

10162 (b) , 10168 (c) . (d)). Section 72.44(h) also issued under Pub. L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C. 2021).

Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C..

2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).

Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L.97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244 (42 U.S.C. 10101, 10137(a),

10161(h)). Subparts K and L are also issued under sec.'133, 98 Stat. 2230 (42 U.S.C. 10153) and sec._218(a), 96 Stat. 2252 (42-U.S.C. 10198).

For the purposes of sec. 223, 68 Stat. 958, _ as amended (42 U.S.C. 2273); SS72.6,-72.12, 72.22, 72.24, 72.26, 72.28(d),

72.30, 72.32, 72.44(a), (b) (1) , (4), (5), ( c )' , (d) (1) ,- - (2 ) , (c) , .

41

. .-.s _u_,._..___~.-- . . , . . _ _ . __.._._.,_..m._..,_..._.._,,_._....

, i (f), (h), 72.48(a), 72.50(a), 72.52(b), 72.72(b), (c), 72.74(a), i (b), 72.76, 72.78, 72.104, 72.106, 72.120, 72.122, 72.124, 4

72.126, 72.128, 72.130, 72.140(b), (c), 72.148, 72.154, 72.156, l 72.160, 72.166, 72.168, 72.170, 72.172, 72.176, 72.180, 72 184, 72.186 are issued under sec. 161b, 68 Stat. 948, as amended (42

, U.S.C. 2201(b) ) ; SS72.10(a), (e), 72.12, 72.22, 72.24, 72.26, 72.28, 72.30, 72.32, 72.44(a), (b) (1) , (4), (5), (c), (d) (1) , >

(2), (c), (f), 72.48 (a), 72.50(a), 72.52(b), 72.90(a)-(d), (f),

r 72.92, 72.94, 72.98, 72.100, 72.102(c), (d), (f), 72.104, 72.106, 72.120, 72.122, 72.124, 72.126, 72.128, 72.130, 72.140(b), (c),

72.142, 72.144, 72.146, 72.148, 72.150, 72.152, 72.154, 72.156, 72.158, 72.1b0, 72.162, 72.164, 72.166, 72.168, 72.170,'72.172, 72.176, 72.180, 72.182, 72.184, 72.186, 72.190, 72.192, 72.194 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C.

2201(1)); and SS72.10(e), 72.11, 72.16, 72.22, 72.24, 72.26, 72.28, 72.30, 72.32, 72. 4 4 (b) (3) , (c) (5) , (d)(3), (e), (f), (h),

I 72.48(b), (c), 7 2. 50 (b) , 72.54(a), (b), (c), 72.56, 72.70, 72.72, 72.74(a), (b), 72.76(a), 72.78(a), 72.80, 72.82, 72.92(b),

72. 94 (b) , 72.14 0 ( b) , (c), (d), 72.144(a), 72.146, 72.148, 72.150, 72.152, 72.154(a), (b), 72.156, 72.160, 72.162, 72.168, 72.170, 72.172, 72.174, 72.176, 72.180, 72.184, 72.186, 72.192, 72.212(b), 72.216, 72.218, 72.230, 72.234(e) and (g) are issued under-sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

l

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=,~s.v,-*-,v,,vrew.. r,,,,.',,,~,.r. _- ,,,i,.,v.---,-m.,,,-w.,,,.v.,v....w.v- v.--...:-*-.wv.m-.--,- .,-+m---4 ,.<,.-em=.- -.,----,-v vr- - -

. - _ - . --. . . - - - . . ~ - . - - . _ - - . - - - . - . - . - . .

11. In S72.44, paragraph (h) is added to read as follows:

172.44 License conditions.

(h) Vne following conditions are contained in every license issued under the regulations in this part:

(1) Low-level radioactive waste (LLW) may be stored on-site, provided it is authorized under existing conditions of the license,-and storage is consistent with existing authorities and procedures, and all relevant licensing and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (h) (2) of this section.

(2) For on-site storage of LLW beyond January.1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either directly or through the State, for disposal of the LLW.-

(3) The licensee shall retain all relevant documentation regarding the actions taken pursuant to paragraphs (h) (2) of this section, for at least three years, and shall make the 43

. . - . . _ . - , ~ . . _ _ . _ , _ . _ . r_ . . _ . - . . _ . . ..._m _ -_ .,, . . . ~ . . ~ ,

documentation available for NRC inspection.

Dated at Rockville, Maryland, this day of , 1992.

FOR THE NUCLEAR REGULATORY COMMISSION.

Samuel J. Chilk, Secretary of the Commission. -

m 44

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APPENDIX A

SUMMARY

AND ANALYSIS OF COMMENTS IN RESPONSE TO THE FEDERAL REGISTER NOTICE OF DECEMBER 4, 1990 (55 FR 50064) e- w ww- w- ,r -,, -m--em4..., ,, ,,.m._,,y I,,,,,,, . , , . . . . , y

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SUMMARY

, ANALYSIS, AND CONCLUSIONS OF RESPONSES TO EIGHT QUESTIONS CONCERNING THE LOW-LEVEL RADI0 ACTIVE WASTE POLICY AMENDMENTS ACT OF 1985 Introduction During a public meeting of the Commission on October 29, 1990, the Commission decided to solicit the views of the public on the staff recommendations in SECY-90-318, " Low-level Radioactive Waste Policy Amendments Act Title Transfer and Possession Provisions," dated September 12, 1990.

Public comment was solicited in a Federal Reaister notice (FRN) published on December 4, 1990 (55 FR 50064). This notice also requested responses to eight related questions. A summary and an analysis of the responses to this FRN are provided below. Because of the U.S. Supreme Court's decision in New York 11 United States, the summary and analysis related to the take-title provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) were rendered moot and consequently have been omitted.

Question 1. What factors should the Commission consider in deciding whether to authorize on-site storage of low-level waste (other than storage for a few months to accommoda.e s operational needs such as consolidating shipments or ho; ding for treatment or decay) beyond 1996?

Summary of Comments.

The principal issue raised by the commenters was whether NRC can and should consider ultimate disposal as a factor in its storage authorizations.

Some commenters believe that NRC should consider only protection of the public health and safety, without any preference for disposal over storage in its licensing decisions. In this role, NRC would simply carry out its normal licensing and inspection functions for either the storage or disposal option.

Others suggested that NRC consider not just public health and safety, but also evidence of progress in developing a disposal facility as a condition for issuing a storage license. Commenters characterized this role for NRC as the

" enforcer" of the LLRWPAA. Others agreed with the staff's approach in SECY-90-318 which stated that the Commission "does not look favorably upon long-term on-site storage af ter 1996," but which acknowledged that at least some short-term storage will likely be required after 1996. In this role, NRC would "encrarage" dir.posal (or not look favorably on storage), but would not make disposal plans an explicit condition for authorizing storage.

Many specific technical or administrative issues, such as waste container degradation and NRC resources to perform storage license reviews, were also mentioned in response to this question. Commenters also suggested that miscellaneous factors, such as the efforts of individual generators in cooperating with the States, the time needed to "do the job right", and time for development of new waste disposal technology, be considered in any Commission storage authorizations.

The only significant trend in the comments was that individuals and public interest groups tended to favor on-site storage beyond 1996. Many of these commenters also believe that waste generation activities should be stopped until disposal capacity is available. Their favoring of on-site

storage at a generator's facility was an outgrowth of the belief that States should not be responsible for LLW management. States, compacts, utilities, and other generators showed no clear preference for any NRC role.

Anal vijl With respect to whether NRC has the authority to " enforce" the provisions of the LLRWPAA, NRC could take actions to encourage disposal. NRC has broad l authority under the Atomic Energy Act of 1954, as amended (AEA), for rules and I orders as it "may deem necessary or desirable _ to... protect health or to I minimize danger to life and property." The public health and safety is enhanced by disposal, rather than by long-term, indefinite storage of wastes.

Disposal of wastes in facilities licensed under the requirements of Part 61 or its equivalent will provide better protection of the public health and safety and environment than long-term storage at perhaps hundreds or even thousands i of sites throughout the country. Further, a nexus was established between disposal and public health and safety and environment and long-term storage with the passage of the LLRWPAA. Thus, NRC has the broad authority to encourage disposal over storage, if it feels that specific measures would be beneficial.

To date, the need for extended storage of low-level waste has been small to almost non-existent because low-level waste has been shipped to the existing waste disposal sites in operation. As a result, industry experience and staff reviews and guidance have not addressed longer-term storage. Many of the commenters on this question pointed out specific ' hazards and technical considerations that need to be addressed if long-term storage is to be used.

For example, container degradation from storage in humid environments, and gas

generation from radiolysis were two concerns that were highlighted _and which i

would need to be addressed. Addressing all of these concerns with indefinite

long-term storage could require safety measures analogous to those for

permanent disposal. An above ground vault meeting the performance

! requirements of Part 61 is an example of the type of facility that could be justified if a licensee were to need explicit authorization for long-term

) storage. Guidance for acceptable low-level waste storage practices for

. periods significantly beyond 5-years may need to be reviewed and assessed as

[ noted in SECY-90-318, to assure safety.

Given that the NRC has authority to encourage disposal but at the same

! time believes that LLW could be safely stored, the question becomes "What-actions could the NRC take and what would these accomplish?" The options range from taking no new actions, to encouraging disposal as we have in the past, to formally considering disposal plans and progress in the licensing of storage

facilities (See responses to Question 7 for a discussion of these additional

assurances for disposal).

Other factors for storage licensing suggested by commenters go beyond the l considerations that normally apply to licensing. Included in these are

forecasting the availability and benefits of new technology for waste disposal and consideration of generators cooperating with States in developing disposal

{ capacity, i

I 2

i 1

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,wn & -n--,r-ge-w,- -.,,m- -wrr,-w,-w -e,v, ,re,r-v ve-,c, w-r,m,w-emm,n-,,,,,-mvew-,. .,,,-.n--,-,r-.,,- , --, - , .ww

With respect to the suggestion that the Commission consider suspending any waste producing activities if disposal capacity is not available, storage could be safely accomplished until disposal capacity becomes available. There is no public health and safety reason _for stopping waste producing activities.

In summary, the principal factor in the Commission's decision to authorize on-site storage is what consideration needs to be given to ultimate disposal plans. Question 7 (assurances NRC should require for disposal) discusses what actions the Commission can take if it chose to consider disposal plans.

Question 2. What are the potential health and safety and environmental impacts of increased reliance on on-site storage of low-level waste?

Summary of Comments.

Although some commenters believe there would be neither health and safety nor environmental effects from storage of LLW, other commenters believe that risk or exposures to workers would increase. Various concerns were raised by some commenters regarding the risk associated with multiple storage sites, with fire hazards, and with enhanced corrosion of waste packages. Others pointed out that occupational exposures would be increased by maintenance and surveillance activities, and the possible repackaging of waste for disposal.

Several commenters believe that a risk assessment should be per. med to better define the risks associated with storage. The risk assessment should

• include a comparison of centralized storage vs. on-site storage by generators.

Finally, several commenters pointed out that storage on-site would eliminate any risk from transportation hazards and would take advantage of aiready contaminated sitcs. These commenters favored long-term, indefinite, on-site storage over near surface disposal.

An al ysi s .

NRC agrees with commenters who believe that the public health and safety and the environment could be adequately protected with on-site storage of LLW.

Although the safety measures for long-term storage facilities will be greater than those employed now for short-term storage, measures can be undertaken to prevent or mitigate the effects of the various internal and external-hazards at a storage facility. However, potential exposures to workers will be reduced if disposal is accomplished. Permanent disposal of LLW has always been the preferred option for managing wastes. The LLRWPAA reflects this preference. The design features of a disposal facility, including the natural features of the site, protect against a wide range of events and phenomena over a long period of time. In contrast, and as a number of commenters noted, storage would involve increased worker exposure from unloading the waste from storage for disposal, possible waste form processing (such as solidification or repackaging) to meet the waste acceptance criteria of a disposal facility when one became available, and radiation surveys during storage.

In order to adequately protect public health and safety, existing storage-facilities may need to be substantially improved to store wastes safely for 3

long periods of time. Actual storage conditions in use now range from sheet steel buildings on a concrete pad to rooms in hospitals and universities to several foot thick concrete modules. These structures may or may not have humidity and temperature control systems and could be subject to changing environmental conditions. The possibility for degradation of the waste containers will exist and will be a function of the materials used and the environment in which they are located. As a bounding condition, a storage facility with an indefinite period of storage for its design could need controls similar to those in Part 61 for a disposal facility, because the design life would be the same.

Increased waste form requirements may be particularly important for Class A waste which normally is not stabilized prior to shipment for disposal, and for any stable waste forms which degrade as a result of the storage environment. This waste may contain quantities of absorbed liquid which, when alone or in the presence of radiation and organic materials, may produce organic acids and/or other species. These species may accelerate internal corrosion and failure of common storage containers.

Several commenters pointed out the need for risk assessments of storage options. NRC is unaware of any quantitative comparisons of-the-risks and exposures associated with storage vs. disposal and on-site storage vs.

centralized storage. NRC will have available information from other programs on storage (such as the NY State storage study and DOE studies) and will use this information in its planning. Additional NRC work may be needed in this area depending on developments between now and 1996.

Question 3. Would low-level waste storage for other than operational needs beyond January 1, 1996, have an adverse impact on the incentive for timely development of permanent disposal capacity?

Summary of Comments.

Comments in response to this question can be put into the following categories:

Yes, there would be an adverse impact--somewhat less than half of those who gave a yes or no answer believe that storage would adversely affect timely development of disposal capacity. Generally these responses-were provided by host States, a compact or industry.

No, there would not be an adverse impact. Many individual commenters or public interest groups believe that storage was the preferred option over disposal and stated that there would be no adverse impact. They believe that current disposal technology is not adequate for protecting public health and safety. Several others believe that allowing for storage would help in achieving disposal capacity:by allowing time for-contracting among States, thereby reducing the number of sites that are needed in the country. They also believe-that storage would provide the time needed to do the job right.

4

e The question is moot. A few commenters pointed out that the reality of the national waste disposal situation is that storage beyond 1996 will be necessary and therefore the question is moot. Several recognized that storage will be necessary, but at the same time encouraged the NRC to permit storage only when necessary. Another commenter pointed out that the LLRWPAA contains ample incentives to promote disposal without needing to consider the effect of NRC's storage policy. Commenters cited the cost to generators or States for storage, the resources (space and personnel) which would need to be devoted to on-site storage at a g<nerator site, the possible loss of jobs in a State if companies move to areas which have disposal capacity, and the political impact in a State if LLW must be stored in increasingly larger quantities at numerous sites throughout a State.

The NRC should not consider any adverse impacts of storage. As noted in the response to the first question on factors the NRC should consider in authorizing storage, a number of commenters believe that NRC's role is one of only licensing and overseeing storage or disposal facilities, without having a preference for one or the other. These same commenters therefore believe that it was inappropriate for NRC to ask this question.

Analysis.

Commenters who stated that storage would have an adverse impact provided little or no bases for their position. This is not surprising given that the question calls for prediction of the future which often must be based on judgment rather than hard data and scientific formulae.

Commenters who believe that there would be no adverse impact on disposal pointed to the incentives that will remain for a State to develop disposal capacity, irrespective of the relief provided by storage. In particular, there are costs (to the State and/or generators); the possible loss of jobs if a generator moves to a State with disposal availability; and, if generator storage is common, the political impact of a large number of LLW sites with ever growing amounts of LLW.

At the same time, NRC agrees with some commenters that short-term storage may be necessary in some States, especially those which have made a good faith effort and continue to do so into the future. Nevertheless, on balance, the NRC believes that an NRC policy which placed no disincentives on extended or inadequate storage would likely tend to discourage disposal.

l l 5 l

Question 4. What specific administrative, technical and legal issues are raised by the requirements for transfer of title?

Summary of Comments.

The comments in response to this question. addressed the take-title-provisions of the LLRWPAA. Because of the U.S. Supreme Court decision in New York v. United States and the revision to the proposed rule, these comments and the associated analysis are moot and consequently are not included.

Question 5. What are the advantages and disadvantages of_ transfer of title and possession as separate steps?

Because of the U.S. Supreme Court decision in New York v. United States and the revision to the proposed rule, the question is moot and consequently the summary and analysis associated with this question are not included.

Question 6. Could any state or local laws interfere or preclude transfer of title or possession of LLW7 Because of the U.S. Supreme Court decision in New York v. United States and the revision to the proposed rule, the question is moot and consequently the summary and analysis associated with this question are not included.

Question 7. What assurances of the availability of safe and sufficient disposal capacity for low-level waste should the Commission require and when should it require them? What additional conditions, if any, should the Commission consider in reviewing such assurances?

Summary of Comments.

No assurances were needed according to seven of the 27 commenters on this question. The NRC lacks the authority and its role is limited to facility l licensing of either disposal or storage, in their view. Other commenters l indicated that if NRC believes that such assurances are needed, it should seek-L an amendment to the LLRWPAA or initiate a rulemaking similar.to the one for i spent fuel storage in 10 CFR Part 51 in which the Commission.made a finding that there was confidence that ultimate disposal-of spent fuel would be achieved at a future date.

For those commenters who believe that assurances were appropriate, the kinds of assurances varied. One recommended that storage beyond 5-years should require a State or compact plan on how the State or compact intends to dispose of the waste so that storage is not de facto disposal. The commenter also believe that, while a State lacks disposal capacity, there should be no licensing between now and January 1, 1996 of any facility _that may generate significant amounts of waste after that date. Others believe that the generator should project waste volumes accurately and that demonstrated progress towards issuance of a license to operate a regional disposal facility would be sufficient.

l 6

One commenter suggested that a governor's certification be required that would be similar to those already submitted as part of the LLRWPAA milestone compliance of January 1,1990. The requirements of the certification should be simple and available to licensees to submit with the license to store or with the application to amend the possession limit. In addition, they believe that the NRC should require that the governor's certification include estimates of the costs for disposal capacity for waste management decision making.

With regard to when the Commission should require the assurances, two commenters addressed the timing issue and focused on the 5-year storage time frame. The other commenters presumably believe that the assurances should apply at any time the licensee would apply for a storage license. Another recommended action by NRC "in the next few years."

Anal ys i s .

Like Question 1 (concerning the factors the Commission could consider in authorizing storage), this question also addresses the role of the NRC in implementing the LLRWPAA. It presumes that the NRC has both the authority and the willingness to seek additional assurances for ultimate disposal. Because commenters often did not agree with this premise, as noted in the analyses of earlier questions, they also believe that this was not an appropriate question for the NRC to ask. However, the NRC, under the AEA, does have broad authority to promulgate rules and regulations to protect the public health and safety and minimize danger to the public.

A number of commenters gave examples of the types of assurances that could be furnished by the States. Examples would include a " plan" for disposal or a governor's certification, both of which would be meant to demonstrate that a State has an active, viable program for the development of disposal capability.

With respect to the question of whether the NRC has assurance that LLW ~

disposal capacity will be available in the future, such assurance is available, as indicated in the analysis section of Questions 1 and 2, and does not require a formal rulemaking, as was suggested by several commenters and performed for HLW. Unlike the HLW program, where no repository has yet been in operation, disposal sites have been in operation and safely isolating waste for decades at Barnwell, S.C. , Hanford, WA, and Beatty, NV. Additional disposal capacity is expected soon. Some States may have their facilities in operation before 1996. There continue to be other options, including storage until a disposal site is located, or contracting with another State, or continuing to pursue velopment of a site within the State or compact. Thus, the question is not w ether LLW will be safely disposed of, but exactly where and when it will take place.

7

Question 8. Are there any other specific issues that would complicate the transfer of title and possession, as well as on-site storage, of low-level waste and mixed (radioactive and chemical hazardous) waste?

Summary of Comments.

A wide variety of comments was provided in response to this question. A number of them were discussed in connection with previous questions. Comments strictly addressing transfer of title and possession are not included because they are moot. Remaining issues include the following:

1. Some commenters mentioned NRC storage policy and whether or not it will be a matter of compatibility with Agreement States was mentioned by some commenters. If not, Agreement States will license storage in accordance with their own storage policies and procedures.

2. The failure of some States to resolve legal, economic, and/or political issues will cause additional delays.

3. Accidents that generate large amounts of waste not previously planned for could cause a significant disposal problem,

4. NRC and Agreement State resources, as well as personnel trained in storage licensing, need to be in place.

5. Orphan waste and naturally-occurring and accelerator-produced radioactive materials (NARM) waste need to be addressed.

Analysis.

NRC has not attempted to resolve each of these issues in connection with this analysis of public comments. Many go beyond the scope of the NRC's responsibilities and will need to be resolved by States and generators as they proceed. Others require a decision on the role of the NRC in encouraging disposal and others will need to be followed up at a later time.

Two of the above comments deserve attention here, however. The first is that Agreement States, which will perform much of the licensing for storage, should adopt the same or similar storage policy as NRC. License conditions for storage beyond 1996 are not currently compatibility requirements.

The second issue concerns the scope of the waste for which the State is responsible. Wastes falling within State responsibility include some Federal waste and any decommissioning waste or waste from contaminated sites that is removed in order to allow sites to meet the unrestricted use criterion in decommissioning.

8  :

CONCLUSIONS.

The following conclusions can be reached as a result of the foregoing analyses:

1. Although LLW can be safely stored, disposal would enhance-the protection of the public health and safety and the environment;

2. The LLRWPAA has establithed the preference for disposal over storage and established national goals for achieving adequate disposal capacity;

3. The NRC has broad authority under the Atomic Energy Act to advance the goal of disposal pursuant to'the LLRWPAA.

4. On-site storage by many LLW generators will likely be necessary due to the lack of progress by States and compacts ~in developing sufficient disposal capacity.

The NRC has concluded that a rulemaking should be initiated to ensure that LLW generators exhaust all other reasonable management options before on-site storage will be permitted beyond January 1, 1996. One such option is-to pursue a contract for disposing of waste. This action will reenforce the Commission's position that it will not look favorably on on-site storage by generators, after January 1,1996, and the action actively supports the goals set forth in the LLRWPAA.

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0 REGULATORY ANALYSIS FOR THE RULEMAKING TO REVISE 10 CFR PARTS 30, 40, 50, 70, AND 72 FOR ON-SITE STORAGE OF-LOW-LEVEL RADIOACTIVE WASTE Statement of the Problem The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Pub. L.99-240) (LLRWPAA) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their low-level radioactive waste (LLW) by 1993. Section 5(a) of the LLRWPAA requires the sited States of Nevada, South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestones of the LLRWPAA, the sites remaining operational, and received waste being within site-specific volume limitations.

To help ensure that the States make adequate progress to develop new LLW disposal facilities, the LLRWPAA' established six milestones by which the States should make decisions-and commit to certain actions, The majority of the States met the requirements of the three milestone-dates that had passed by January 1990. Only the Central, Central-!!idwest,'and Southwestern-Compact States met the January 1, 1992, milestone requirement because their host States, Nebraska,- Illinois, and California, respectively, submitted a facility license application to their State regulatory authorities before that

1 l

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' l date. The State of Texas conformed to this milestone on March 2,

'1992. The remaining milestones of the LLRWPAA, as it was enacted, are:

January 1, 1993 - If a State or compact cannot provide for disposal of its LLW after January 1, 1993, generators can request the State to take title to and. possession of the generated waste. The State also becomes liable for damages as a consequence of failure to take possession of the waste.

In 1993, States may avoid taking title and possession of the waste and assuming liability, but will forfeit the surcharge rebates established by the LLRWPAA.

January 1, 1996 - If a State or compact cannot provide for disposal of its LLW after January 1, 1996, the States, upon proper notice by the generator or owner, shall take title to and be obligated to take possession of LLW. The State will also be liable for all damages directly or indirectly incurred by the generator or owner if it fails to take possession as soon after January 1, 1996, as the generator i or owner notifies the State that the waste is available'for shipment.

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The section of the LLRWPAA requiring the States to takeL title to and possession of the generated waste.by January 1, 1996 (often referred to as the "take-title" provision), was held to be l'

unconstitutional by the U.S. Supreme Court on June 19, 1992, in a

e lawsuit brought by the State of New York (a non-compact State) and two of its counties. The constitutionality of the take-title.

provision, as applied to compact States,_was not before the Supreme Court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996. ,

Because new LLW disposal facilities are not expected to be operational by January 1, 1993, and the compact commissions that control the existing LLW disposal sites are expected to either close or set conditions on receiving LLW from:outside their regional compacts on January 1, 1993, some licensees who-generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors who do not expect to have access to operating LLW disposal facilities within the next few years have indicated that their respective States plan on interim storage by waste generators from-1993 through 1996.

Storage is planned-to include individual licensee facilities.

Although some compacts and States =are scheduled to open an-LLW disposal facility before January 1996,-others~are not expected to do so.

Although LLW can be safely stored, NRC believes that the protection of the public health and safety and the environment is 3

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2 4

enhanced by disposal, rather than by long term, indefinite storage of wastes. Disposal of wastes in a limited number of facilities, licensed under the requirements of 10 CFR part 61 or

~

compatible Agreement State regulations, will provide better protection of the public health and safety and the environment than long-term storage at hundreds or thousands of sites around the country. Stored waste packages need to maintain sufficient integrity to provent dispersal of the waste during storage, transport, and handling, up to and including emplacement for disposal. Because of the variability of certain storage environments, waste packages may suffer degradation over the extended storage period. Among the ways in which a storage.

environment can cause waste package degradation are temperature fluctuations (in heated facilities in areas with cold winters) and corrosive atmospheres (e.g., industrial and marine atmospheres as well as acid deposition). Other waste package concerns during storage include external and internal corrosion, radiolytic generation of gases (predominantly hydrogen) and corrosive substances, radiation induced embrittlement of polyethylene containers, and biodegradation of institutional ---

wastes. These processes may accelerate internal corrosion and-

. failure of common storage containers, even if-the. waste is-stabilized prior to storage. Waste form degradation could result in spills or releases during handling for disposal, if the degradation goes undetected. In addition,. waste package-deterioration prior to disposal will' require repackaging-of the 4

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LLW and cleanup of any spills. _

As a result, workers will be potentially exposed to additional doses cf radiation. The-NRC i

contractor report, " Extended Storage of Low-Level Radioactive Waste: Potential Problem Areas," NUREG/CR-4062, provides a detailed discussion of these concerns.1 Storage also involves a number of activities that could increase radiation doses to the public. First, storage of LLW will result in potential increased worker exposures, from unloading the waste from storage, for disposal. Second, waste forms may need to be repackaged or otherwise processed, again, as a result of waste form failure or to meet waste acceptance criteria for a new disposal facility, once one becomes available.

This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal facility may necessitate these new waste form criteria and these criteria may not be known when LLW is placed into storage.

Third, radiation surveys and inspections of LLW in storage will result in potential additional doses to those involved in performing these activities. For these reasons and to support the goals of the LLRWPAA, NRC is proposing this rulemaking, which makes storage of LLW an option of last resort. The Commission 2

Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. . copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for: inspection and/or copying at the NRC Public Document Room,- 2120 L Street NW. ]

(Lower Level), Washington, DC.  :

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specifically invites comment on the above public health and safety rationale, as well as on the comparative risk of potential releases as a result of an event or accident at numerous LLW storage sites around the country, as opposed to the potential release from a limited number of disposal sites designed to meet the siting and design requirements in 10 CFR Part 61 or compatible Agreement state regulations.

l Even though the take-title provision was held i

unconstitutional, clearly a_ goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1996.

l To support the goals of the LLRWPAA and its legislated preference l

for disposal over storage of LLW, the Nuclear Regulatory i

Commission has concluded that action is necessary to require licensees to exhaust other reasonable management options before on-site storage of LLW will be permitted after January 1, 1996.

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l Obiectives l

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l The objectives of this regulatory action are to support the I

goals of the LLRWPAA and enhance the-protection of the public health and safety and the environment by ensuring that:

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i On-site storage of LLW is an option of-last resort; i

+ On-site storage is authorized under existing conditions of l

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the license and is consistent with existing authorities and procedures as well as all relevant licensing and regulatory requirements; and In the case of production and utilization facility licensees, on-site storage activities are consistent with-and do not impact safe operations, nor decrease the level of safety provided by regulatory requirements.

Alternatives NRC has considered the folAowing alternatives.

1. Take no action at this time, but rather continue to monitor states' progress in establishing new disposal capacity and ,

react to specific circumstances demanding NRC action.

2. Issue guidance to licensees and Governors as' issues and needs are identified. It would address the LLRWPAA, and place a particular emphasis on storage. It would include-copies of the current guidance documente and regulations that NRC would apply in licensing of storage.

-3. Publish a policy statement providing information similar to Alternative 2. It would note that NRC recognizes that licenses authorizing storage for limited periods of time.

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(i.e., five years or less) 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' commitment to disposal and problems with longer-term storage of LLW,

4. Conduct a regular, but expedited, rulemaking, to amend 10 CFR Parts 30, 40, 50, 70, and 72, to codify NRC's position establishing procedures and criteria applicable to all LLW generators, for on-site storage of LLW beyond January 1, 1996.

Analysis of Alternatives The no-action alternative (Alternative 1) is non-responsive to the emerging situation. It does not make known or emphasize NRC's policy and existing guidance. Furthermore, it does not actively support the national goals of the LLRWPAA.

, Neither issuance of guidance (Alternative 2) nor publication of a policy statement (Alternative-3) would formally codify, in a rule, NRC's position on on-site storage of-LLW, beyond January;1, 1996. These alternatives fall short of establishing the regulatory framework needed to set forth procedures andicriteria that will apply-to on-site storage of LLW beyond January 1, 1996.

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4 Alternative-4 to amend 10 CFR Parts 30, 40, 50, 70, and 72, to codify NRC's position, establishing procedures and criteria applicable to all LLW generators, for on-site' storage of LLW, beyond January 1, 1996, is the recommended action. NRC would initiate a proposed rulemaking allowing.for a 60-day comment period, potentially reaching a broader audience than the guidance or policy statement alternatives, and allowing for consideration of public comments in the development of the proposed rule.- The effects of the proposed rulemaking on States, licensees, and NRC are addressed below.

Impact on States NRC is aware that Agreement States will incur costs in developing corresponding compatible regulations in.accordance with existing agreements between NRC and Agreement States.

However, NRC does not consider these costs to be a significant impact on the Agreement States.

Impact on-Generators The only new costs that will be incurred by the LLW generators or1 owners as a result of this proposed rulemaking are those associated with the generation of letters to State and/or LLW disposal facilities and the associated recordkeeping

-requirements. If the generator is successful in contracting for F 9

p l disposal as a result of the proposed rule,1the-costs associated with such disposal would not be new, because costs would have been incurred for ultimate LLW disposal, in the absence of this q

rule. Contract costs, ircurred as a result of compliance with this rule, may dif fer fron ultimate disposal costs. However, insufficient data exists tc estimate what cost difference,-if any, may occur.

Recordkeeping requirement 1 unique to production and utilization facilities (550. 54 (3f) (2) (ii) ) are negligible because of the availability of similar information from evaluations performed pursuant to $50.59. Therefore, there will be no additional burden on 10 CFR Part 50 licensees from this requirement. The recordkeeping burden imposed regarding the remaining requirements .in SS30.34(j), 40.41(h), 50.54 (ff) ,

70.32(1), and 72.44(h) are expected te be the same for each licensee, regardless of the applicable regulation.

i.

This regulatory action will afttet approximately 16,100 licenses consisting of 9500 Agreement State licenses and 6600 NRC licenses (including 94 power reactors). The following burden estimate assumes that all licensees are:LLW generators and that all generators ship their waste off-site for_ disposal. These assumptions build a degree of conservatism into'the: analysis because, for example, some generators store their waste for decay, rather than dispose of LLW, 'and some do notLgenerate LLW 10 I

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on a regular basis. The burden estimate in Table 1 is based on these assumptions.

Table 1 General Burden Estimate j

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Burden per  !

Action Licensee l 2

Disposal Site Requests 8 ,

1 Follow-Up 2 Record Maintenance 2 Total per Licensee per Year 12 Number of Licenses 16.100 Total Burden Estimate per Year 193,200 Hours The total estimated cost to each licensee for these recordkeeping requirements is $720 ($60/hr X 12 hrs) per year.

The burden and cost estimates are based on NRC staff analyses.

Costs are estimated based on a $60 hourly rate.

Imnact on Federal Government No additional cost to NRC or any other agency of the Federal government is. expected. No formal-reports are required, and

~

therefore there are no costs associated with report review and maintenance. Records will be reviewed during normal inspections.

However, these reviews are not expected to appreciably increase 11

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!!RC inspection resource requirements.

Decision Rationale The proposed rulemaking is recommended because it will codify NRC's position establishing procedures and criteria applicable to all LLW generators for on-site storage of LLW, beyond January 1, 1996. NRC has concluded that,-to support the goals of the LLRWPAA and to enhance the protection of the public' health and safety and the environment, action is appropriate to require licensees to exhaust other reasonable management options before on-site storage of LLW will be permitted after January 1, 1996.

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ENVIRONMENTAL ASSESSMENT AND

' FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT FOR THE RULEMAKING TO REVISE 10 CFR PARTS 30, 40,_50, 70, AND 72 FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE The Proposed Action The Nuclear Regulatory Commission is proposing specific changes to 10 CFR Parts 30, 40, 50, 70, and 72, containing j licensing requirements for byproduct materials, source materials, production and utilization facilities, special nuclear materials, and independent spent fuel storage, respectively. The rulemaking would amend SS30.34, 40.41, 50.54, 70.32,_and 72.44, which' identify standard conditions for reactor and material licenses.

Identical changes are proposed for SS30.34, 40.41, 70.32, and-72.44. The amendments of SS30.34 (j), 40.41(h), 70. 3 2 (1) , _and

72. 44 (h) would not permit on-site storage of low-level  !

i radioactive waste (LLW) after January 1, 1996 (other than for reasonable storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility),

unless'the licensee could-document that it has exhausted other reasonable management options. The NRC's proposed regulations would require:that the licensee attempt-to contract with-operating LLW disposal sites, either directly or through the State, for the disposal of its waste. Under S50.54(ff), reactor.

licensees would have to meet identical conditions,-as well as document that on-site storage activities will be consistent with, <

and not compromise,__the safe operation of the licensee's

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activities, nor decrease the level of safety provided by applicable' regulatory requirements. Finally, SS30.34 (j) ,

40.41(h), 50. 54 (f f) , 70.32(1), and 72.44(h) would require that all relevant documentation of the steps taken to satisfy the requirements of this rulemaking be maintained by the licensee for three years and be made available for NRC inspection.

These proposed amendments would serve to ensure that all licensees exhaust all options before storing LLW on-site, and that these changes in the regulations encourage the national goal of obtaining LLW disposal capacity.

Eged for Proposed Rule The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Pub. L.99-240) (LLRWPAA) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their LLW by 1993. Section 5(a) of the LLRWPAA requires the sited States of Nevada, South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestones of the LLRWPAA, the sites remaining operational, and received-waste being within site-specific volume. limitations.

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To help ensure that the States make adequate progress to develop new LLW disposal facilities, the LLRWPAA established six milestones by which the States should make decisions and commit to certain actions. The majority of the States met the requirements of the three milestone dates that had passed by January 1990. Only the Central, Central-Midwest, and Southwestern Compact States met the January 1, 1992, milestone requirement, because their host States, Nebraska, Illinois, and California, respectively, submitted a facility license application to their State regulatory authorities before that date. The State of Texas conformed to this milestone on March 2, 1992. The remaining milestones of the LLRWPAA, as it was enacted, are:

January 1, 1993 - If a State or compact cannot provide for-disposal of its LLW after January 1, 1993, generators can request the State to take title to and possession of the generated waste. The State also becomes liable for damages-as a consequence of failure to take possession of the Wactc.

In 1993, States may avoid taking title and possession of the waste and' assuming liability, but will forfeit the surcharge rebates established.by the LLRWPAA.

January 1, 1996 - If a State or compact cannot provide for disposal of its LLW after January 1, 1996, the, States, upon proper notice by the generator or owner, shall take title to 3

4 and be obligated to take possession of LLW. The State will also be liable for all damages directly or indirectly 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 17 available for chipment.

The section of the LLRWPAA requiring the States to take title to and possession of the generated waste by January 1, 1996 (often referred to ar the "take-title" provision), was held to be unconstitutional by the U.S. Supreme court on June 19, 1992, in a lawsuit brought by the State of New York (a non-compact State) J and two of itu counties. The constitutionality of the take-title '

provision, as applied to compact States, was not before the -i Supreme Court. Even though the take-title provision was held  :

unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996. '

Bqcause new LLW disposal facilities are not expected to be 1993, and the compact commiv operational by January 1, is that-control the existing LLW disposal sites are expected to either close or set conditions on receiving LLW from outside their .

regional compacts on Januery 1, 1993, some licensees who generate LLW may be forced-to store-their LLW on-site, until disposal-capccity is available, unless other arrangements for storage!or 4

disposal can be made. Nearly all the Governors have indicated that their respective States plan on interim storage by waste generators during the 1993 through 1996 period. Storage is planned to include individual licensee facilities. However, many States do expect to have access to the Barnwell LLW disposal ,

facility from January 1, 1993 through June 30, 1994. Although some compacts and States are scheduled to open an LLW storage facility before January 1996, others are not expected to do so.

Although LLW can be safely stored, NRC believes that the protection of the public health and safety and the environment is enhanced by disposal, rather than by long term, indefinite storage of wastes. Disposal of wastes in a limited number of facilities, licensed under the requirements of 10 CFR Part 61 or compatible Agreement State regulations, will provide better <

protection of the public health and safety and the environment )

than long-term storage at hundreds or thousands of sites around l the country. Stored waste packages need to maintain sufficient integrity to prevent dispersal of.the waste during storage,. l transport, and handling, up to and including emplacement for disposal. Because of the variability of certain storage environments, waste packages may suffer degradation over the extended storage period. Among the ways in which a storage environment can cause waste package degradation are temperature iluctuations (in heated-facilities in areas with cold winters) at,4 corrosive atmospheres (e.g., industrial and marine l

5

atmospheres as well as acid deposition). Other waste package concerns during storage include external and internal corrosion, radiolytic generation of gases (predomirantly hydrogen) and corrosive substances, radiation induced embrittlement of polyethylene containers, and biodegradation of institutional wastes. These processes may accelerate internal corrosion and failure of common storage containers, even if the waste is stabilized prior to storage. Waste form degradation could result in epills or releases during handling for disposal, if the degradation goes undetected. In addition, waste package deterioration prior to disposal will require repackaging of the LLW and cleanup of any spills. As a result, workers will be potentially exposed to additional doses of radiation. The NRC contractor report, " Extended Storage of Low-Level Radioactive c

Waste: Potential Problem Areas," NUREG/CR-4062, provides a detailed discussion of these concerna.8 l

Storace also involves a number of activities that could increase radiation doses to the public. First, storage of LLW will result in potential increased worker exposures, from unloading the waste from storage, for disposal. Second, waste forms may need to be repackaged or otherwise processed, again, as I

Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for inspection and/or copying at the NRC Public Document Room, 2120 L Street NW.

(Lower Level), Washington, DC.

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a result of waste form failure or to meet waste acceptance criteria for a new disposal facility, once one becomes available.

This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal  !

facility may necessitate these new waste form criteria and these criteria may not be known when LLW is placed into storage.

Third, radiation surveys and inspections of LLW in storage will result in potential additional doses to those involved in performing these activities. For these reasons and-to support I

the goals of the LLRWPAA, NRC has concluded that regulations should be amended to require licensees to exhaust other reasonable management options before on-site storage of LLW will be permitted, after January 1, 1996. The Commission specifically invites comment on the above public health and safety rationale, as well as on the comparative risk of potential releases as a result of an event or accident at numerous LLW storage sites ,

around the country, as opposed to the potential release from a Jimited number of disposal sites designed to meet the siting and design requirements in 10 CFR part 61 or compatible Agreement Stato regulations.

Alternatives

! 1 Pronosed Action: Proceed with a regular, but expedited, g rulemaking, including-the-publication-of a proposed rule for i

public comment, then conclude with the publication.of a final 1

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4 rule that considers any comments received.

Alternative 1: No action. This alternative is non-recponsive to the emerging situation and does not further the i i

disposal goal of the LLRWPAA. Therefore, this alternative is  !

rejected.

i Alternative 2: Issue guidance to licensees and Governors as '

issues and needs are identified. This alternative would enable ,

NRC to continue to monitor national progress in the development of new LLW disposal capacity, and to develop and issue additional guidance, as needs are identified. However, this action would not codify NRC's position, and thus the guidance would not be enforceable. Therefore, this alternative is rejected.

Alternative 3: Publish a policy statement providing information similar to that provided in Alternative 2. Although this approach supports the LLRWPAA, it is not as strong a regulatory action. A policy. statement is only informational and has no binding offect. This approach is subject-to greater challenges and uncertainty than a rulemaking.- Therefore, this alternative is rejected.

8 l

_ . . _ - . - . . _ _ _ _ _ . . _ . , . _ - _ , _ . . _ _ . , _ . . _ . . _ _ , _ . _ _ _ _ _ _ _ - _ . . - - . _ _ _ . . ~ . . . . . - - . _ , . _ . _ , . _ . _ - _ . . . . . . _ _ . _ . - .

Environmental Impact of Proposed Action The Commission has determined that this rule, if adopted, would not be a major Federal action, significantly affecting the quality of the human environment. Regulations in 10 CTR Parts 30, 40, 50, 70, and 72, addressing licensing of byproduct materials, source materials, production and utilization facilities, special nuclear materials, and independent spent fuel -

storage, respectively, provide requirements for the possession and use of these materials, with LLW simply being a material form within these categories of radioactive material.

This proposed rulemaking will supplement, but not supersede, the existing regulatory framework applicable to the storage of LLW, and the conditions in themselves will not authorize on-site storage. These amendments add administrative and verification requirements to those regulations governing the licensing of _

byproduct material, source material, production and utilization facilities, special nuclear material, and independent spent fuel storage. The proposed rule will encourage disposal as opposed to storage and this should have beneficial environmental effects.

The proposed rule would not result in any increase in radiation exposure from transportation of LLW compared to that expected from the ultimato disposal of LLW envisioned by the LLRWPAA. Any environmental impact of operating an on-site LLW storage facility will be addressed, as required, as part of the licensing action 9

. - . - . - . - _ - . - - . - - - . . - - _ - - . - . - - . - - - ~ . . . _ _ - - - - _

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for that facility, under previously established regulatory requirements.  ;

i Environmental Imoact of Alternatives )

l Because the alternatives proposed do not affect regulatory requirements, there would be no environmental impact.

Acencies Consulted i i

No other agencies or persons were contacted in connection l with this environmental assessment. The text of the_ proposed rule was provided to the NRC Agreement States.

Findina of No Sianificant Iroact -

-r Based on the foregoing environmental assessment the -

Commission concludes that the proposed rulemaking will not have a significant incremental effect on the quality of the human environment and therefore, an environmental impact statement is= -I not required.

.i Finding of-No Significant Environmental Impact The Commission has determined, under the National '

Environmental Policy Act of 1969, and the Commission regulations  ;

20 '

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in Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This proposed rulemaking will  ;

1 supplement, but not supersede, the existing regulatory framework applicable to the storage of LLW, and the additional conditions of this rulemaking, in themselves, would not authorize on-site storage. These amendments would add administrative and verification requirements to existing regulations governing the licensing of byproduct material, source material, production and 5 utilization facilities, special nuclear material, and independent J

spent fuel storage.- The proposed rule would encourage disposal l

as opposed to storage, and this should have beneficial environmental effects. The proposed rule would not result in any increase in radiation exposure from transportation of LLW compared to that expected from the ultimate disposal of LLW envisioned by the LLRWPAA. Any environmental impact of operating an on-site LLW storage facility will be addressed, as required, as part of che licensing action for that facility, under previously established regulatory requirements.

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The Honorable Philip R. Sharp, Chairman Subcommittee on Energy and Power Committee on Energy and Commerce United States House of Representatives Washington, DC 20515

Dear Mr. Chairman:

The Nuclear Regulatory Commis, ion is proposing to amend its regulations applicable to reactor, material, fuel cycle, and independent spent fuel storage licensees, to establish a regulatory framework setting forth the procedures and criteria that will apply to on site storage of low level o

radioactive waste beyond January 1, 1996, based on the legislative intent of the Low-level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA).

Enclosed is a copy of the proposed rule that will be published shortly in the federal Reaister.

Under the proposed rule, on site storage of low-level radioactive waste will not be permitted after January 1,1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation, for shipment off-site, in the case where a licensee has access to an operating low-level radioactive waste disposal facility), unless the licensee can document that _it has exhausted other reasonable waste management. options. NRC's proposed regulations would require that the licensee attempt to contract, either directly-or through the State,- for the disposal of its waste. In addition,-

reactor licensees will _have to documentLthat on-site storage activities will be consistent with, and not compromise,-the safe operation of the licensee's activities, nor decrease the level of safety provided by applicable regulatory requirements. The rulemaking will make these requirements standard license hsuuni in i i muu' u stuu uu -

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conditions for every license issued for reactor, material, fuel cycle, and ,

independent spent fuel storage licensees. The rulemaking will amend 10 CfR ,

Parts 50.54, 30.34, 40.41, 70.32, and 72.44, which are those sections of the regulations that identify standard conditions for reactor, material, fuel cycle, and independent spent fuel storage licenses.

This action is being t.bn because of potential health and safety concerns associated with the increased reliance upon on site storage of low level radioactive waste, and to support the goals that have been established by the LLRWPAA.

t Sincerely, Dennis Rathbun, Director Office of Congressional Affairs

Enclosures:

l. Public Announcement

2. Federal Register Notice cc: Representative Carlos J. Moorhead n

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The Honorable Peter J. Kostmayer, Chairman

. Subcommittee on Energy and Environment  :

, Committee of Interior and insular Affairs i United States House of Representatives  !

Washington, DC 20515 i

Dear Mr. Chairman:

The Nuclear Regulatory Commission is proposing to amend its regulations applicable to reactor, material, fuel cycle, and independent spent fuel '

storage licensees, to establish a regulatory framework setting _ forth the procedures and criteria that will apply to on-site storage of low level radioactive waste beyond January 1, lo96, based on the legislative intent of:

the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA). <

Cnclosed is a copy of the proposed rule that will be published shortly in the federal Reaister.

Under tht proposed rule, on site storage of low level radioactive waste will ,

not be permitted after January 1, 1996_(other than reasonable short term storage necessary for decay, or for collection or consolidation, for shipment _

off-site, in the case where a licensee has access to an operating low-level radioactive waste disposal facility), unless the licensee can document that it has exhausted other reasonable waste management options. NRC's-proposed regulations would require that the licensee attempt to contract, either-directly or through the State, for-the disposal of its_ waste.- In addition, reactor licensees = will have to document that on-sit'e storage activities will be consistent with, and not compromise, the safe operation of the-licensee's -

activities, nor decrease the level of safety provided by applicable regulatory requirements. The rulemaking will make these requirements standard license a_.u,-_.._..,_;..-.,,,.,-.-.a ~~._a_,____ ..~ . .w .a __.; -. .a. ._.J

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conditions for every license issued for reactor, material, fuel cycle, and independent spent fuel storage licensees. The rulemaking will amend 10 CFR l Parts 50.54, 30.34, 40.41, 70.32, and 72.44, which are those sections of the regulations that identify standard conditions for reactor, material, fuel cycle, and independent spent fuel storage licenses. ,

This action is being taken because of potential health.and safety concerns associated with the increased reliance upon on site storage of low level radioactive waste, and to support the goals that have been established by the LLRWPAA.

Sincerely, Dennis Rathbun, Director Office of Congressional Affairs

Enclosures:

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1. Public Announcement

2. Federal Reaister Notice cc: Representative John J. Rhodes I.

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i The Honorable Bob Graham, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Public Works 1 United States Senate -

Washington, DC 20510 ,

Dear Mr. Chairman:

The Nuclear Regulatory Comission is proposing to amend its regulations ,

applicable to reactor, material, fuel cycle, and independent spent fuel I storage licensees, to establish a regulatory framework setting forth the-procedures and criteria that will apply to on site storage of low level  :

radioactive waste beyond January 1, 1996, based on the legislative intent of the low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA).  ;

Enclosed is a copy of the proposed rule that will be published shor tly-in the-Lederal Reaister. -

Under the proposed rule, on site storage of low-level radioactive waste will not be permitted after January 1,1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation,-for shipment ,

off site, in the case where a licensee has access to an operating low-level radioactive waste disposal facility), unless;the licensee can document that it has exhausted other reasonable waste management options. NRC's proposed regulations would require that the' licensee attempt to contract, either .

directly or through the State, for the disposal of its waste. In addition, reactor licensees will have to document that on-site storage activities;will be consistent with, and not-compromise, the safe operation of the licensee's activities, nor-decrease the level of safety provided.by applicable regulatory -

requirements. The rulemaking will make these requirements standard license i

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conditions for every license issued for reactor, material, fuel cycle, and independent spent fuel storage licensees. The rulemaking will amend 10 CfR Parts 50.54, 30.34, 40.41, 70.32, and 72.44, which are those sections of the

{ regulations that identify standard conditions for reactor, material, fuel l

l- cycle, and independent spent fuel storage licenses. l

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l This action is being taken because of potential health and safety concerns l <

associated with the increased reliance upon on-site storage of low level l

l radioactive waste, and to support the goals that have been established by the j i

LLRWPAA.

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Sincerely,  !

Dennis Rathbun,-Director Office of Congressional Affairs

Enclosures:

1. Public Announcement

2. [ederal Reaister Notice cc: Senator Alan K. Simpson i

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9 NRC CONSIDERS CHANGES TO REGULATIONS FOR ON-SITE STORAGE Op LOW-LEVEL RADIOACTIVE WASTE The Nuclear Regulatory Commission is considering amending its regulations to establish requirements for on-site storage of low-level radioactive waste by licensees, af ter January 1, 1996.

Under the proposed rule, the current regulations would continue to be used for on-site storage of low-level radioactive r i

waste, until January 1, 1996. Current rules permit on-site i

storage, if all relevant licensing and regulatory requirements are met.

After January 1, 1996, the proposed regulations would not permit on-site storage of low-level radioactive waste-(other than-i reasonable short-term storage necessary for decay, or for collection or consol.idation for shipment off-site, in the case where a licensee has access to an operational low-level ,

radioactive waste disposal facility), unless the licensee'could document that it has exhausted other reasonable waste management options. The NRC's proposed regulations would require'that the  ;

licensee attempt to contract, either directly or through the State in which the licensee's facility is located, for the -i disposal of the waste.

The proposed regulation would make these requirements standard license conditions for reactor, materials, fuel cycle, and independent spent fuel storage licenses. Licensees would not be required to make a formal submittal, to NRC, to show compliance. However, they would have to document steps that show v-erye,-w.,w,y-w=&wwy-trw"wr--'w=--*vw'esw-"ver-rr'+aw**e*-*m+-**v-ww=---er-re'r've****ew-"'*******-*'r*-w-r+ww'***~=*-**'-*='rwwr**8++-+v~w e- v - V *+%Cvve**** "e"'r"- '

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how they have complied with the requirements and make the documentation availabic to NRC, for inspection.  ;

Low-level radioactive waste is a general term for a variety l; of radioactively contaminated waste generated by nuclear power' plants and related industries, hospitals, medical and educational l 1

research institutions, private and governmental laboratories, and i r

other commercial activities that use radioactive materials as a normal part of their operations.

Low-level radioactive waste is currently disposed of using ,

i near-surface land disposal at privately operated facilities located in the States of Nevada, South Carolina, and Washington.

However, the commissions that control these sites may close~the t

sites or set conditions on receiving wastes.

On December 4, 1990, the Commission published a federal l Heoister notice seeking public comments on issues regarding low-level radioactive waste disposal, including whether to permit S temporary storage of the waste after 1996. The proposed rule takes into consideration the comments received. >

Interested parties are' invited to: submit written comments on the proposed changes to Parts 30, 40, 50, 70, and 72 of the Commission's regulations by (60 days after.

publication of a_ notice in the Eggeral neaister on- _).

- The comments should be addressed to Secretary of the Commission, U.S.-Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

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' ACTION - Bernero NMSS e'[

UNITED STATES Cys: Taylor p'k NUCLEAR REGULATORY COMMISSION

. j ) y W A$HW OT ON. D.C. 20665 Snietek

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Thompson Blaha

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• September 23, 1992 Beckjord, RES Kanrnerer. SP omet o, var srcattaav Scroggins. OC DMeyer ADM RNelson, NNSSe/'

FOR: James M. Taylor Executive Director for Oqa]ations FROM: Samuel J. Chilk, Secreta  :)

SUBJECT:

SECY-92-168 - NOTICE OF PhPOSEDRULEMAKING TO ESTABLISH PROCEDURES ND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE, AFTER JANUARY 1, 1996 The Commission wishes to emphasize its concern over the prospect that on-site storage of low-level radioactive waste at the point of generation could become the path of least resistance for States and Compacts, Icading to a situation where the incentive to develop new disposal capacity could wano and the potential risk to the public health and safety from on-site storage could increase. In view of these concerns the Commission (with the Chairman and Commissioners Rogers, Curtiss and Remick agreeing)'

believes that rulemaking is a logical next step to provide a legally enforceable framework to buttress the general policy that the Commission has articulated concerning post-1996 storage, i.e., that the Commission would not look favorably on long term storage. In light of the recent Supreme court decision striking down the so-called "take title" provisions of the Low-Level Radioactive Waste Policy Amendments Act (LLRWPAA) for non-compact states, however,- the draft proposed rule previously forwarded to the Commission must be revised. Accordingly, the staff should revise the rulemaking package to:

1. Delete the title transfer option but retain the option of contracting with operating disposal sites) and

2. Clarify that in view of the recent Supreme Court decision striking down the title transfer provision for on-compact States, the Commission will not require the title transfer option to be exhausted as a prerequisite to generators storing waste on-site after January 1,1996.

l SECY NOTE: THIS SRM AND SECY-92-168 DISCUSS SENSITIVE INFORMATION AND WILL BE LIMITED TO NRC UNLESS THE l COMMISSION DETERMINES OTHERWISE l l

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The revised rulemaking package should be prepared on an expedited basis for Commission review and approval, in as much as the January 1, 1993 LLRWFAA milestone is approaching. Because the previous draft proposed rule was coordinated with the Agreement States, it should not be necessary to repeat that step at-this time. The rulemaking package should allow for a 60-day period for public comment. The revised rulemaking package should be submitted to the Commission as soon as practicable.

(DDO) (NMSS) (Secy suspense: 10/23/92) 9200023 The Commission also requests that the staff prepare an analysis of the strategies and options that the Commission might pursue (in addition to the rulemaking on storage requested above) that would encourage the States and Compacts to move forward with the development of low-level radioactive waste disposal facilities.

This should include a wide-ranging evaluation of the options available to the agency to be more proactive in advancing the objectives and goals of the LLRWPAA, and in increasing the likelihood that regional low-level waste facilities will be operational by January 1, 1996.

The staff's options paper should also include an evaluation and recommendation with respect to the usefulness of seeking furthcr input from the States and compacts, and other affected interests, before a Commission decision on implementation of any steps that the staff might recommend.

1e00) (NMSS) (Secy suspense: 1/15/93) 9200219 commissioner de Planque would have preferred that the options  :

paper be provided to the Commission prior to the staff's revision of the rule proposed in SECY-92-168. While going forward with '

publication of a proposed rule is one option avellable to the Commission in seeking to foster the goals of the Low-Level Radioactive Waste Policy Amendments Act,-it may not be the best option and could have unintended negative effects that would be brought to the Commission's attention in the options paper. In addition, she believes that it would be more prudent to allow more time to assess the reactions of the States and Compacts to the Supreme Court's decision striking down the take-title provision before choosing an option. As stated in the first paragraph of this SRM, the focus of the Commission's concern is nost-1996 storace of low-level waste. Waiting for an options paper before proceeding with this rulemaking, if that is the commission's choice, would not significantly inhibit the Commission's ability to address this concern. To the extent that the commission is concerned about the potential health and safety problems of storage beyond January 1, 1993 in the case where there may be no reasonable disposal option available, she would prefer that staff resources be spent preparing appropriate regulatory guidance to assist licensees in that situation.

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ect The chairman commissioner Rogers -

Commissioner curtiss commissioner Remick '

commissioner de Planquo OGC I-OIG '

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