ML20154N937

Forwards Staff Comments on Three Waste Mgt Bills

ML20154N937
Person / Time
Issue date:	09/23/1979
From:	Dircks W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Trubatch S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
TASK-TF, TASK-URFO NUDOCS 9810220136
Download: ML20154N937 (14)

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Bangart j; MEMORANCUM FOR: Sheldon Trubatch Comella Office of the General Coursel Jaske

1. Wol f FROM: , William J,! Macks,' Director Denton . -

Offite of Nuclear Material Safety Ryan an'd Safeguards Shea Minogue

SUBJECT:

COP?ENTS ON THREE W\STE MANAGEPENT BILLS Shapar NYIII Enclosed are staff comments on three waste mana9ement bills -- S.1360.

S.1521, and a draft bill by Senator Hart. Pursuant to your conversation-with John Surmeier of my staff, our coments will supplement your analyses and sum. aries of these bills as presented in your memorandum to Mr. Droggitis,

(]_ OCA, dated September 7,1979. Hopefully this will minimize duplication.

We concur, except as noted, with your analyses and sumary. -

The Offices of Standards Development, Nuclear Reactor Regulation and State Prograns have concurred. The Office of International Programs did not have any substantive coments on these bills and the Office of the Executive Legal Director has no legal objection.

.' >> wuuam J.p William J. Dircks, Director Office of Nuclear Material Safety and Safeguards i

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Enclosures:

U Bill Sumary and Analyses on S. 1360, S. 1521 and Draft bill of Senator Hart 9810220136 790923 PDR ORG NOMA

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O ENCLOSURE-1 BILL SutS! ARIES AND ANALYSES l

I. EXTENSION OF NRC LICENSING AUTHORITY OVER DOE WASTE FACILITIES The staff concurs with the OGC summary and anelysis on the above stated subject for both S.1521 and Senator Hart's bill. However, with' respect to S.1521, there is a need to provide for continued exercise of the authority i presently vested in NRC by virture of sections 202(1) and 202(2) of the j l

Energy Reorganizacion Act. - 1 II. WASTE FACILITY' LICENSING STANDARDS With the exception of the statement:

O noreover, the proposed standerd is consistent with current staff thinking. Thus, Senator Hart's proposed standard might not lead to in:onsistency with the existing licensing standard." -

i the staff generally concurs with the OGC summary and analysis on the above stated subject for both S.1521 and Senator Hart's Bill.

The staff believes that the use of the word "best" in both S.1521 [See Sec. - 202(b)(3 and 4)] and Senator Hart's Bill [See Sec. 202(c)(2)] could negate any possible tradt-offs between alternative technologies. While "best" usually means the.most expensive it is not ne,c,, e ssarily the most effective alternative to meet a given objective. For example, this could mean that low-level wastes vould be required to be disposed of in a manner identical to that of high-level wastes even though the public's health and safety and environment could be protected with a significantly less costly technological y alternative.

S. 1521, Sec. 202(b)(1). This provis. ion is ambiguous. First, the cause of' death, serious injury or disease, or mutagenic consequences has not been

- restricted to the effect from nuclear waste. As a result all construction .

L- related injuries would be. included. Based on historical mine accident data, i

. it is almost a certainty that one or more indiv' duals would be seriously '

injured during the construction phase of a geologic repository prior to

• 6 receipt of any raoioactive waste. Second, as presently written, it appears ,

- that the Commissicn would be forced to make a negative finding even if only one

person is estimated to have a substantial probability of being seriously

injured during the toxic life of the waste.

t p Senator' Hart's Bill. Sec. 202(c)(2) as well as S.1521, Sec. 202(b)(3) "

! and (4). Under present statutory authority, NRC cvaluates license ,

L applications.to ensure that proposed activities will not result in unreason-

'able risk to public health and safety. This inquiry requires us to assure -

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that the proposed course of action involves an acceptable level of risk; we need not determine (except insofar as NEPA's requirements regarding evalua- i tion of alternatives is concerned) that the proposed activities incorporate '

the best available technology, the best possible medium, etc. NRC would not be able to make findings of the latter type without engaging in a thorough l review of relevant R&D programs. We would be obligated either to engage in a comprehensive R& D program on all disposal technologies ourselves or, at the very least, compri:hensively review the DOE R&D nrograms to assure that the

. l technology was in fact the best. Not only would this vastly broaden the issues that would require resolution in NRC ruirmaking or adjudicatory pro-ceedings, but it would assign both developmental and safety-review decision-making roles to the Convaission - a consequence which would be in conflict with the policies underlying the separation of 1,'RC and ERDA in the Energy Reorganization Act.

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III. ALTERNATIVE FACILITY SITES l The staff concurs with the OGC summary and analysis on the above stated subject for both S.1521 and Senator Hart's bill.

1 Senator Hart's Bill, Sec 4(b). The applicable standards are those contained in the Atomic Energy Act, NEPA, and EPA regulations. Moreover, it

• is not NRC's role to promulgate standards to protect the environment from nonradiological hatards. The intention of the drafters could be carried out more precisely with a small change. Specifically, the language presented on line 2 (beginning with the word " standards") through the end of line 5 shoula be replaced with the following: " technical criteria which it will apply in t reviewing, under the Atomic Energy Act and NEPA, an application for the..."

Senator Hart's Bill, Sec 3. The term " construction permit," used in this section as well as elsewhere in the Hart Bill and S.1521 [See, Sec.

4(a)], has a specific technical meaning under the Atomic Energy Act of 1954, as amended, for production and utilization facilities. The term " construction authorization" should be used for waste facilities.

IV. WASTE TECHNOLOGY ASSESSMENT The staff considers that the provision in S.1521 for NRC and EPA to hold a joint proceeding to determine whether disposal technology exists would be unworkable.

S. 1521, Sec. 5(b). The staff questions whether the proposed inquiry is appropriate for EPA, which has statutory standard-setting rather than imple-mentation responsiblities. If such public proceedings are to be conducted by the NRC and EPA, the staff believes that a rule making (Section 553) instead of an adjudicatory (Section 554) process as defined in the Administrative

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require trial-type hearings, this intent could be clarified if sec. 5(b) were i amended so as to refer to a public proceeding "on the record."- '

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Senator Hart's Bill. Sec. (5(a)(1). The term " unreasonable risk" should L~ be substftuted for "significant risk" to be consistent with the statutory )

language in the Atomic Energy Act.

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SenatorHart's,BillSec.5(b). The staff is not as certain as OGC that l

a notice-and-comment proceeding wouTd comply with the requirements of l the Hart bill.

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• WASTE G':NERATION LIMITS The staff concurs with the OGC summary on the above stated subject for both . J S.1521 and Senator Hart's Bill. i

- S. 1521, Sec. 6. The staff believes this section is unnecessary.

If a feasible technology is determined to exist and efforts are underway or a planned to obtain the adequate disposal capacity, there appears to be little '

rationale for requ: ring plants to cease generatiag waste (shut down) upon an -

arbitrary date.

L of this Senator Hart's Bill. Sec. 4(c). The staff is uncertain' as to the intent subsection. .

If the intent is to ensure that several alternative 1 sites be fully evaluated prior to the selection of one site for actual construction, the staff. believes that the approach suggested in the proposed Part 60 regulation may be more appropriate. .The proposed Part 60 regulation for licensing the disposal of high-level waste in geologic repositories will  ;

require that DOE characterize several sites at-depth, including sinking of- an-c.

exploratory shaft eith lateral borings and in-situ testing before submitting a fomal application for construction of.a repository at any single site. '

The intent of this approach to licensing is to ensure that enough infortnation I and data are developed on a sufficiently broad base on a number of sites so that acceptable licensing decisions can be made. The staff believes that this is a prudent and conservative approach that would allow a meaningful com- {

parison of alternatives as required by the National Environmental Policy 1 Act.  !

y The staff envisions that DOE will be in the process of fully characterizing j

at least ~three or four sites by January 1,1984 under the proposed Part 60 ,

t regulation._ However, DOE must take a position on whether the January 1, i

1984 time schedule can be met given .the requirements imposed by this bill and the detailed site characterization infomation that must be provided NRC s

. before submitting a formal application for construction. i 1

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VI. STATE NOTICE AND VET 0 1

Except as noted, the staff concurs with the OGC analysis and summary on the above stated subject for S.1360, S.1521 and Senator Hart's, Bill.

l The staff continues to believe that it is appropriate to give statutory I recognition to the legitimate concerns of States in which waste facilities .,

may be located. However, if a veto concept is mandated by legislation, it is Il recommended that specific criteria be provided. The staff believes that l construction authorization and operating license decisions should be based on l technological feasibity, health and safety provisions, and protection of the '

environment. To authorize a state veto without .,pecifiying the grounds on l which the veto will be based leaves open the possibility that technically ,l sound and safe disposal facilities would not be approved.

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With exception of the Office of State Programs, the staff recommends that  :

such veto power be permitted only at the construction authorization stage i after several sites have been fully characterized. This would mean that it would be late enouch in the development process to be based on meaningful infomation but early enough so that large expenditures of resources will not have been committed by the Federal government. In a minority view, OSP recomends a formal early site review and approval process similar to that for reactors, as an alternative to the case-by-case approach of S.1521. OSP  ;

considers that this would allow states to participate fully in the siting decision in advance of the full financial commitment to a specific repository construction program. Along the same line of reasoning, a State veto of an early site review c.ction may, in the opinion of OSP have merit, but sees no merit in a state veto late in the licensing action when a commitment to a construction progrr.m is made.

Furthermore, OSP remains concerned that the continuation of the case-by-case approach suggested by NUREG 0539 and built into S.1521 would compromise i O participation by States in the State Planning Council proposed by DOE and IRG. OSP believes that a programmatic approach in which States participate in the program plan would mean that NRC would not have to create alternatives for every possible licensing action.

S. 1360. The vagueness of S.1360's provision that State-DOE arrange-ments shall be " binding" on Federal agencies sho21d be explored. Suppose the State and 00E, through negotiations, agree that a repository may be constructed at a specified location if certain defined criteria are met and that no persons should be heard to ob.iect except with respect to the matters involving the conformance of the repository to those criteria, and, further, that so long as the State and 00E concurred, no inquiry by any other agency i

should be allowed. While such provisions may be axtreme, they illustrate the potential serious problems regarding the limitations that Congress intends to place upon the Commission's regulatory authority. (Other agencies may have similar problems - e.g., with respect to the exercise of their discretion to withdraw public lands for DOE use.) As such this bill would be contrary to

5 the separation of HRC and DOE jurisdiction accomplished by the Energy Re-organization Act of 1974. l In the Commission report to Congress, NUREG 0539, the need for some mechanism to resolve a State veto was recognized. -- The staff continues to support the idea that if an override of a State veto is provided.at all, it should be at the beginning of the process, not at the end.

Senator Hart's_ Bill.

1. . Sec. 7(a). - The Comittee might want to examine the language in-this. subsection. Should these procedures also b 2 required for interim storage -

of high-level and transuranium contaminated waste?

2. Sec. 7 (Page 10). The Hart bill incudes a procedure whereby.a '

Comission licensing decision would be reinstated in the event of'certain '

t . O' Presidential determinations. This raises questions regarding the reviewabil-ity of the President's determinations and the effect that those determinations-might have upon the' reviewability of the Commission's findings and conclu-

.sions. This problem should be identified to the Congress, perhaps with the suggestion that the President's action should be nonreviewable,. but that it should have no effect whatsoever upon the rights of persons with standing to obtain judicial- review of the Commission's actions. ,

3. The reference to " construction permit" should be changed to " con-struction authorization", as previosly noted. Moreover, references to

" license" should not be accompanied by the adjective " operating." This is important because the_ license to be' issued is not one allowing operation'of a facility, but rather one allowing receipt and posession of nuclear material.-

4. End of Sec. 7. The following clarifying language should be added at the end of SectionF"As used in this Section each reference to Construction q = Authorization or license shall also include any amendments thereto."

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VII. LIMIT ON NRC Alf7HORITY TO LICENSE DOE FACILITIES TO STORE SPENT FUEL The staff concurs with the OGC summary and analysis on the above stated subject for both S.1521 and Senator Hart's Bill. However, the staff ques-

! tions whether the suggestion by OGC for Congress to directly prohibit DOE from building-spent storage facilities for the purpose of facilitating waste ll reprocessing may restrict future technological approaches for nuclear waste t disposal. : Reprocessing could permit spent fuel to be partitioned accord-ing to. its radioactive content and to.be converted into a waste form more j

-appropriate' for use in a waste disposal' system.

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'VIII. WASTE MANAGEMENT PLAN The' staff concurs with the OGC summary and analysis on the above stated

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IX. EPA WASTE REGULATIONS

.The staff concurs with the OGC summary and analysis on the above stated subject for both S.1521'and Senator Hart's Bill.

i X. ADDITIONAL STAFF COMMENTS 1.. Senator Har t's Bill . Sec. 202(e). The staff considers that one year

'may be an insufficicat time in order to allow for any possible adjudicatory

. hearings 'and preparation of any environmental' impact statements.

2. : ' Senator Har t's Bill, Sec. 202(e)(2). The phase "shall be carried out"' appear to be the words that are missing at the end of line beginning f

.with " minimize risk" and ending with "the environment."

3. ' Senator Har t's ' Bill, Sec. 202(e)(2). Except to the extent that it

' has been granted -licensing. authority, NRC has no relevant administrative ,

enforcement powers with respect'to DOE activities. In view of this limita-tion, the practical consequence of the provision that the NRC recommendation

[ order?], shall- be "immediately effective" is unclear.

4. Senator Hart's Bill, Sec. 202(f). Same [roblem as Sec. 202(e)(2) above: "one year" and "immediately effective". *

5. Senator Hart's Bill, Sec. 8. This sectien would defeat a primary objective of away-frem-reactor storage, i.e., to have storage capacity until such time as a permanent repository is in operation. The staff recommends its deletion..

6. Definition of High-Level Waste. Both Senator Hart's bill, [e.g.,

Sec. 5(a)(1)] and S.1521, [e.g., Sec 6] contain references to irradiated nuclear fuel as something other than HLW. High-level radioactive waste has been. defined by the Commission to include spent fuel; therefore, the wording should ~ read ."high-level radioactive waste (including irradiated nuclear reactor fuel)" in these bills.

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! We are sending these comments informally and plea's e note that .the attachment is written in somewhat i

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SUBJECT:

COMMENTS ON THREE WASTE MANAGEMENT BILLS This memo responds to SheldonL. Trubatch's request of August 29,1979, for i

L staff comments on three Waste Management bills - S.1360, S.1521 and the l l - i l Hart bill. My general comments are. provided below and specific comments ,

[_ -in the attachment.

1. State concurrence: State concurrence in the repository development l process,-a feature of both S.1360 'and S.1521, confers not only de facto j -licensing authority on the states but also gives individual states oversight authority over DOE programatic decisions for activities I within the state. The practical effect of this is to require overall '

- rather than selective . technical competency in each State where DOE l

! may propose to put a repository. I question the desirability of such l replication of resources especially since many of the resources are -  !

. extremely scarce and reside now and in the foreseeable future o;nly

.t4 at the-Federal level. Further, if State concurrence is not to slow down .

repository development and ultimate disposal, States mu,st anticipate DOE decisions about potential repository locations in oNer to start acquiring resources now.

Another key issue associated with State concurrence is the power of the States to factor consideration of alternatives into their decision process. .NEPA requires this at the Federal level but there is no guarantee

! that States.will be'able to make comparative decisions as well as go/no-go y decisions. Thare is also no guarantee that State concurrence provisions will. result inl adequate and meaningful public participation in the decision

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. 2. Disposal of Existing Wastes: The important and urgent consideration must be the disposal of radioactive wastes that already exist.While whether waste should continue to be. generated is a compelling public policy question, the debate on that question should not be allowed to prevent our present waste problems from being solved. Therefore, I do not believe it is in the national interest to allow each State on an individual basis to decide whether it will permit or prevent solution of this pressing national, problem through exercise of a veto on siting of a repository within its borders. Other mechanisms for getting at continued existence of nuclear os power # an energy alternative should be employed.

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i S. 1360 l

Para. b. essentially makes State the licensor - NRC the review but the State gives go/no-go.

Para. c. and b. also make the State an overseer in DOE's programatic activities -

To obtain concurrence, DOE may need program peculiar to and tailored for each State in which it wishes to even think about looking - this Bill i guarantees that the job will never get done.

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' (V S. 1521 -

5202, 2 (a) by giving NRC authority over virtually all DOE disposal greatly expands NRC'i role and would require a significant increase in staff. What is still unclear is whether R & D waste facilities are subject to NRC license.

Para. (b) (1) could be interpreted to require a probabilistic assessment for licensing ("no substantial probability").

g Para (b) (2) sets EPA's environmental standard for it - i.e. EPA would not need to set a HLW or LLW standard.

Para (b) (3) Motherhood Para. (b) (4) "Best possible" may be interpreted to be unqualified - that is availability may not be relevant. The remainder of the Para. is unclear -

does it mean that a demonstration facility can or can not be licensed?

Para. (c) The enormity of this task almost defies comment.

l l Para. (d) The Congress is now writing NRC regulations - it can but does it really want to?

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Attachment Page 2 l Para. 3(a) This gives WIPP an out if NRC takes the heat.

l Para. '(b) Tells NRC to comply with NEPA in its regs.

54 (a) Inconsequential and unneeded under proposed Part 60 Para (b) As in Para b of S.1360 makes State the licensor.

1 (a) Para. (1) The " confidence proceeding" - however thus para, may require r

tj~ a probabilistic determination, especially if done in conjunction with EPA (substantial probability). -

Para _(2) - no comment Para. (b) - apparently adjudicatory proceeding - makes EPA co-licensor of concept -

not facility. -

Merifcewm vu.obe Para. (c) "ca'tc,.1 on new plants if finding of IS (a) is nat4-ve.

l 56 - apparently requires disposal capacity in place for all rad waste regardless j I

of origin by 1990 (determination made in 87) to continue generating electricity by NPP's as well as any other " commercial" source - medical / i industrial. In short if DOE screws up on its waste the lights go out. I l

57 Keeps the responsibility on utilities for spent fuel - even at a DOE ISFSI, until l permanent disposal is available.

l Hart Bill' l- 52, 202_ (b) similar to S. 1521, 52, 202 (a) excepting in some fashion (5202 (f))

i certain. DOE /D0D related wastes 11 al Para (c) (1) Presents no significant hazard - much more acceptable language -

Para (2) best available technology and medium - good words l

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.. o- o Attachment page 3 Para (3) and (c) - (e) Same comment is on 51521 (c) but the wording is much better'- more reasonable and appears to afford NRC more latitude.

, Para (f) gets existing facilities - the retrofit - no grandfathering of defense wastes '

52 ~(a) & '(b) implementation of all the above by regulation within six l

, ?(N months - this is probably tight >

l V l 53 - 3 media and 3 waste fonn alternative 54(a) requires EPA to publish its standard by January 1981 L Para (b) requires NRC to publish its rules by January 1982 ., ,

i l~ Para (c) requires DOE by January 1984(?) to sumit CP's in at least 2 states -

l SW C h a k w b a 4.pnfs DOE-may not be ready - SeR's may be more appropriate

-gives-preference to Fed. lands can bury waste (Hanford, NRTS, NTS, O

SRP) Publication inconsistent with 3 media requirement. If DOE i

fails to do this, no further NPP licensing actions

! Para (d) requires-NRC to act on license by 1992 (January 1)

L 55(a)Mt.C - 7authorized 'actually required - to investigate and determine whether technologyexists[ para (1)],by1985(January 1)

Para (b) (a) done by public proceeding - other agencies are a party, but NRC's

, ~s how - much more latitude to NRC if hd(

Para (c)suspendlicensingo (a)isnegative 3

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l Attachment page 4 56 gradual shutdown of all PP's by 10%/yr. 'for each year 1985ffnding remains negative, or each year beyond 1992 CP(approval date)- but does V

' ductu.rces give NRC dissnf= to keep plants operating if needed to protect public health and safety, l

L 57.(a). State notification l (b). NRC affords State opportunity to participate but also gives State

c. a veto - but with presidential counter veto within 60 days [ para (c)] ,

.t but (c) also gives Congress counter counter veto if it chooses to act I-rocessing by DOE, in any case, and any 58(2)seemstopermanentlybanrep& $re.ili DOE AFR until' disposal hf'dtng is operating k

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