ML20154N962

Forwards Summaries & Analyses of Three Waste Mgt Bills

ML20154N962
Person / Time
Issue date:	09/07/1979
From:	Trubatch S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Droggitis S NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA)
References
TASK-TF, TASK-URFO NUDOCS 9810220144
Download: ML20154N962 (24)

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+ [9., NUCLEAR REGULATORY COMMISSION g f)e Q WASHINGTON, D. C. 20555

% b i,.. September 7,1979 Spiros Droggitis , OCA MEMORANDUM FOR:d l FROM: V S. L. Trubatch, OGC

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SUBJECT:

,y WASTE MANAGEMENT BILLE

' Enc 1osed, as you requested, are summaries and analyses of three O wa ce menesement ditt -- s.1521, S.1360, ana a arate si11 hr Senator Hart. These summaries have been prepared to provide background for the Chairman. Because these su::rnari.es have not been reviewed by the General Counsel, they should not be made

.available publicly. The summaries address the provisions in the bills on an issue-by-issue basis. They also include earlier Commission positions where available.

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Enclosures:

As stated 1

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BILL SUMMARIES e

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.o Extension of NRC Licensing Authority Over DOE Waste Facilities '

S.1521 would extend the NRC's licensing authority to DOE facilities for the ' storage or disposal of low-level radioactive waste (LLW),

non-high level transuranium contaminated waste (TRU), high-level waste (HLW) . irradiated nuclear reactor fuel (spent fuel) , radio-

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active gas, and decommissioned facilities. The NRC's authority would also apply to such materials generated by foreign countries, research and development activities, and defense programs. Before O ext cias

• cittei couta de ticen ea. co===1t cio= ==a coacurr ac-procedure would be followed by DOE and NRC. No provision is made for resolving agency differences. If the Conunissi.on were to deter-mine that remedial measures are impracticable for any facility, it could order termination of activities at that facility.

Senator Hart's draft bill would also extend the Comunission's licensing authority over DOE facilities used to store the types of

. waste enumerated.above. IIowever , facilities for the exclusive storage or disposal of defense wastes would be subject to a DOE-NRC consultation and concurrence procedure which includes Congres-sional resolution of agency differences.

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The Consnission's report on Regulation of Federal Waste Activi?.ies will make the following two recommendations for extending the Com-j mission's regulatory authority over DOE waste facilities :

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1. NRC licensing authority should be extended to cover all i l

new DOE facilities for the disposal of TRU waste and '

non-defense LLW: and l

2. A pilot program, focused on a few specific DOE waste management activities, should be established to test the feasibility of extending NRC regulatory authority on a consultative basis to DOE waste management activi-ties not now covered by NRC's licensing authority or l its extension as recommended above.

I Thus, S.1521 and the Hart draft bill would go,far beyond the  !

I Commission's current position regarding extension cif its licensing authority.

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Waste Facility Licensing Standards S.1521 would establish a new licensing standard for DOE waste facilities. Before licensing a DOE waste facili_ty, the Commission would have to find that the facility --

l (a) presents no substantial probability to one or more individuals or to the general population of death, serious injury or disease, or mutagenic consequences during the toxic life of the waste O

(b) presents a yearly maximum planned and unplarined radia-tion exposure to any individual in the gene:ral popula-tion of 10 percent of the EPA standard for the uranium fuel cycles (c) incorporates the best available technology ifor isolating and containing wastes: and f O

(d) is situated in the best possible medium.

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Senator Hart's draft would also establish a new licensing standard for DOE waste facilities. Before licensing a DOI waste facility the Commission would have to find that the facility --

(a) presents no significant hazard to public health and

, safety or the environment during the toxic life of the waste, and

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.o - 2 (b) incorporates the best combination of available technolog and medium for the isolation and containment of waste stored or disposed.

l Both. bills would establish new licensing standards for DOE waste facilities and decommissioned facilities. Thus, these bills could result in inconsistency with the existing licensing standard for private facilities. Under NEPA and the Atomic Energy Act of 1954 (Act), the licensing standard for private activities would be g promotion of the common defense and security, protection of public i health and environment, and minimization of danger to life and i property. See, Sec.161b. of the Act. Senator Hart's proposed standard -- no significant hazard and best combination of available

( -Mii3P technology -- could be read as an explicit reformulation of the M'. existing licensing standard as applied to waste facilities.

[ Moreover, the propt sed standard is consistent with current staff

% thinking. Thus, Senator Hart's proposed standard might not lead to inconsistency with the existing licensing standard.

< V However, the licensing standard proposed in S.1521 is substantially different from the existing licensing standard and essentially is a requirement of zero release. First, S.1521 would introduce the new undefined criterion " substantial probability". Second, by including the general population, the licensing standard basically is a no-l release requirement because, according to the linear hypothesis,  ;

, almost any release of radioactivity will result in some adverse l

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l effects to the population even though the probability of any effects on an individual may be acceptably small. Third, S.1521 sets a quantitative radiation exposure criterion based on EPA's environ-mental exposure standards. This criterion may not be consistent with EPA's proposed waste disposal regulation. Moreover ,' the allowance of individual exposures appears to be inconsistent with the requirement of no substantial probability of adverse. affcces to the general population.

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Alternative Facility Sites L

. S.1521 would ' establish an alternative site requirement in addition l- to-any such requirement imposed-by NEPA.

Each application for a vaste' facility license would identify alt unative sites and provide  !

l - data'on them as required by the Commission. The Commission could waive this additional requirement for researt.A a:nd demonstration-facilities. i The Commission would be required to develop criteria and procedures )

for evaluating the alternative sites.

Senator Hart's bill would also establish an additional requirement on the consideration of alternatives. Under it, each application l for the construction of a high-level waste facility would have to l L

. identify and analyzeV at least three geologic medda. and three acceptable waste forms.- The Commission mld evaaluate these alter- i 7 .

L natives ' under standards and requirements contain4ed in a rule which the Commission would be required to promulgate.

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-Both' proposals for the additional consideration of alternatives appear to unnecessarily repeat the Commission's clear responsibili-l ties under NEPA. In addition, they could require the NRC to duplicate DOE's analysis of alternatives in the environmental impact statements it will prepare for proposed sites. Finally, at the present level of knowledge, it is not clear that quantir:ive requirements are l-realistic for numbers of alternatives to be considered. Such a i judgment appears to be best left to the agency discretion based on agency expertise.

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Waste Technology Assessment

,- S.1521 would direct. the NRC and EPA to hold a joint adjudicatory l

l proceeding to determine whether disposal technology exists. DOE, the United States Geological Survey, and the National Academy of l

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-Sciences would be mandatory parties. Any other person whose interest might be effected would be permitted to intervene. NRC and EPA would report;their findings to Congress and the President by December 31, 1982. A negative determination regarding the existence of disposal technology would trigger a moratorium on reactor licensing.

Senator Hart's bill would direct only the Commission to hold a public proceeding to determine whether disposal. technology exists.

Although the proceeding would be of the notice and comment' type, DOE, EPA, USGS, and NAS would be parties and any person whose interest might be affected would be permitted to intervene. Here I too', ' a negative determination regarding the existence of disposal

!O technology would trigger a licensing moratorium.

These . proposed proceedings would appear to substantially duplicate L the proceeding now being developed by the Commission in response to l .

the decision in Minnesota v. NRC.

In that decision, the United h States Court of Appeals for the District of Columbia Circuit remanded to the Commission consideration of the following issues:

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e (1) whether there is reasonable assurance . that off-site storage for spent. fuel will be available when nuclear power plant

. operating licenses expires and if not,

( 2) whether there is reasonable assurance that spent fuel can be safely _ stored on site.

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e. The Commission is now considering the appropriate scope and procedures consistent with the Court 's decision.

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Waste Generation Limits S.1521 would direct the NRC, in consultation with DOE, to report

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to the President and Congress,by January 15, 1987 on the existence l

of adequate permanent disposal capacity by December 31, 1990, for HLW, TRU, and spent fuel generated by all sources. If available disposal capacity is found to be inadequate the Commission would be. I required to order the suspension of further commercial generation of HLU, TRU, and spent fuel until the NRC finds that adequate

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Senator Hart's bill would also provide limits on the generation of commercial waste but is significantly different from S.1521.

First, the Hart bill would not require the existence of disposal ,

capacity by a fixed date. .It would impose limits if the NRC finds that adequate disposal technology does not exist by January 1, 1985 or. DOE fails to submit two repository applications by January 1, 1984. Second, the Hart bill would not impose a complete moratorium on commercial power generation. Instead, the bill would require a

r. eduction of maximum allowed facility capacity by' ten percent for every year after the deadlines for DOE submission of respository applications or NRC findings of availability of ' disposal technology.

Third, the Commission would be authorized to exempt any facility if reduction of its power would be inimical to public health and safety.

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O-i State Notice and Veto

S.1521 would require an applicant to notify the Governor of the State in which a storage or disposal facility is_ proposed for HLW,

'TRU, or spent fuel. This notice would precede the filing of a construction permit application with the Commission. The State would then designate a representative to receive all relevant data and participate in every stage of the proceeding. Any construc-tion permit or license issued by the NRC for such a facility would have no effect for 90 days after its-issuance. During this time the - State would be able to void the permit or license. If a State

[j f ailed to act in 90 days the permit or license would become effec-tive.

Senator Hart's bill differs in several respects on the State veto.

The most important difference is the provision of a mechanism for overriding a State veto. As in S.1521, a State would have 90 days to' object to a Commission permit or license. Hewever, State dis-(]) approval during that period would serve only to suspend license effectiveness, and the suspension would not be effective until the Commission received the Governor's formal detailed statement of 1

disapproval. Within 60 days after a State veto, the President could l determine that it should be rejected if i

I (1) the proposed facility presents no signifciant hazard to '

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- (2) not building the facility would significantly impair the Nation's energy = interest.

The President's determination would then be transinitted to Congress, which ~ could sustain ' the State' veto by concurrent resolution. Con-gre'ssional failure to act within 90 days of continuous session would result'in the license becoming effective.

LO- sen cor n re's bitt iso cone ins the cottowins =snor differences from S. 15 21 : DOE would notify the State Legislature as well as the Governor, notice would be given before site exploration began, and LLW facilities would be included as well as those for HLW, TRU, and spent fuel..

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-- S.1360 would require the Secretary of Energy to notify the Governor and State Legislature of a State in which DOE will explore for a site for a disposal facility for HLU, TRU and spent fuel. The Secre-tary and Governor will then enter into an agreement which provides  !

' for State. concurrence. Any such arrangement would bind the NRC as

.well as all other Federal agencies. DOE could not initiate work on a repository until the arrangement is completed. The State wil.1 then be able to veto any phase of repository development. No pro-

- vision is made for overriding a State's veto.

Current law renders somewhat superfluous the notice provision which L

- would require DOE to inform a State that it may be considered for a

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facility. Pub. L.95-601, the NRC Authorization Act for 1979, provided that anyone proposing to build a storage or disposal -

facility for HLU, LLW, TRU, or spent fuel would notify the Conunis-sion as soon as possible e'ter the initiation of facility planning.

The Commission, in turn, iould then notify the Governor and State legislature of the identified State.

The Commission has . addressed ' the issue of State veto on several O occasions. In its testimony of June 14, 1978, the Conunission stated that it would be appropriate to give statutory recognition to the legitimate concerns of States in which waste facilities may be located, emphasized the need for State participation in the licensing process, recommended that any State veto should be carefully drafted

- to clarify the circumstances under which it could be exercised, and I suggested that the opportunity for exercising a State veto should be limited to the time at which a final decision is made to authorize O f cility construction. This position was reiterated in the Report to Congress on Means for Improving State Participation in the Siting, 4 Licensing, and Development of Federal Nuclear Waste Facilities.

NITitEG-0539 (March 1979) . More recently, in testimony delivered on July 27, 1979, a majority of the Commission endorsed the statement  ;

on State veto in NUREG-0539. However, Commissioner Gilinsky, in a separate view, stated that the Commission should not take a position on a State veto because its advisability depends on political and economic considerations beyond the Commission's scope of responsi-bility. Commissioner Bradford, in a separate statement, stated that

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States should have a veto. Finally, Chairman Hendrie, in a separate t

view, stated that States should have every opportunity to participate '

.in waste facility activities but that Federal pre-emption of any State veto may be necessary. ,

P In view of the foregoing, a majority of the Constission might oppose r the State veto provi'sion in S.1521.

That bill does not specify the  ;

circumstances under which a State could exercise its veto, nor does b ,

it provide a procedure for resolving State concerns. Moreover, it would permit a State to veto facility operation .as well as construc-

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tion.

i The same observations are equally applicable to .S . 13 60. In addi-tion, that bill would be contrary to the separat: ion of NRC and DOE jurisdiction accomplished by the Energy Reorgani zation Act of 1974.

S.1360 would bind NRC to a State veto arrangeme:nt entered into by a State and DOE.

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The veto provision in Senator Hart's bill appear a to be responsive to the Commission's concerns regarding specifici.ty. of State objec- I tions and the need- for 'a mechanism for their res:olution. - However, the bill would appear to permit a State to veto a facility for the

. temporary storage of spent fuel. In the June 27, 1979 testimony, the l

' Commission stated that a veto would not be appropriate for such facilities because there is no reason to treat :-hem differently fron other fuel _ cycle facilities.

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• Limit on NRC Authority to License DOE Facilities to Store Spent Fuel Both S.1521 and the Hart draft bill would couple NRC licensing of a DOE spent fuel storage facility to the availability of a permanent disposal facility for such material. S. 1521 would require the Commission to condition facility licenses for spent fuel storage to prohibit the Secretary of Energy from taking title to spent fuel or assuming responsibility for its disposal until an l

NRC licensed permanent repository for spent fuel is in operation.

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, U The Hart bill would go further and simply prohibit the Commission from licensing any DOE spent fuel storage facility until an IIRC licensed permanent repository for spent fuel is in operation. In addition, the Hart bill would prohibit the IIRC from licensing a DOE temporary storage facility designed to facilitate waste reprocessing.

Both of these bills would establish NRC license conditionc which J

T are not directly related to health and safety. S. 1521 would use the Commission's licensing authority to impose conditions on the Secretary of Energy. The conditions would appear to be more l properly imposed on the Secretary directly by Congress. It would

, also appear more appropriate for Congress to directly prohibit DOE i

from building spent fuel storage facilities for the purpose of l facilitating waste reprocessing.

l The Eart bill would leave it up to private industry to build tempor-ary storage facilities for spent fuel until a permanent disposal

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. testi mony of June 27, 1979, expressed no opinion on whether interim spent fuel storage facilities should be owned privately or by the Federal government. At that time the Commission expressed the belief that it could adequately analyze the health, safety, and enviornmental impacts of such facilities whether they are c.onstructed by the Federal government or by private industry. 1 O. -

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.c l Uaste Management Plan S. 1521 would require DOE to report to NRC and seek its concurrence i in detailed plans for the management and disposal of radioactive l

1 waste for each facility which generates a significant quantity of l l

L LLW, HLW, TRU, spent fuel, radioactive gas , and decommissioning l ,

material. Before concurring in the plans, the NRC would recommend changes necessary to, protect the. public health, safety and the environment, and be satisfied that such recommendations had been.

implemented. No procedure is provided for resolving differences

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Among other things, this provision would appear to inject the NRC into DOE's management of waste at unlicensed faci.11. ties, including those devoted to national security purposes. Such a significant expansion of the Commission's regulatory authority appears to require extensive analysis to ensure that its implications are fully recog-g - nized.

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EPA Waste Regulations i 1

~ Senator Hart's bill would direct the Environmental Protection I Agency (EPA) to set generally applicable standards for the pro-

[ tection of public health, safety, or the enviretunent from radio-l logical and non-radiological hazards associated with permanent repositories for HLW. The Commission's standards for evaluating 4

alternatives for HLW disposal would have to conform to these EPA standards. ,

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This provision would substantially extend EPA's jurisdiction into areas now regulated by the NRC. Currently, under Reorganization j- Plan No. 3 of 1970, EPA is authorized to promulgate generally

- applicable environmental radiation standards and, with the Presi-

• dent's approval, broad radiation guidance to Federal agencies. EPA

• standards and guidance are binding on the NRC. " die NRC implements the EPA standards by invoking the Commission's authority under the Atomic Energy Act of 1954 to regulate licensees' facilities and their ' possession of defined classes of radioactive material. This 4

P division 'of responsibility is reiterated in the remorandum of Understanding of September 11, 1973 (38 Fed. Reg. 24936), and applies to waste facilities.

EPA has additional authority under the Clean Air Act Amendments of

-1977 which authorized the Administrator to declare radioactive

' effluents into-the air to be hatardous.. EPA can limit the quantity of such effluents and, in some cases, impose operati.onal limits within 1

a licensee's boundary. However, this authority might not affect waste l

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-facilities if they are designed to avoid radioactive effluence

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Senator Hart's bill would result in a jurisdictional overlap '

between the NRC and EPA. Such . an overlap could result in juris-dictional dispute and duplicative agency effort.

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3 O o II 00rn CONGRESS . 4 ft 18T SESSION

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To amend the Atomic Energy Act of 1934, as amended, to authorize and direct the Secretary of Energy to enter into formal arrangements with a State to provide for State concurrence in the planning, siting, development, construc-tion, and operation of specified radioactive waste storage and disposal facili-ties, and for other purposes.

O IN THE SENATE OF THE UNITED STATES ,

JUNE 18 Cegislative day, Mn 21),1979 Mr. DOMENICI introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL >

To amend the Atomic Energy Act of 1954, as amended, to O authorize and direct the Secretary of Energy to enter into formal arrangements with a State to provide for Stnte concurrence in the planning, siting, development, construc-tion, and operation of specified radioactive waste storage and disposal facilities, and for other purposes.

1 Be it enacted by the Senate and House of Representa.

2 tives of the United States of America in Congress assembled, -

3 That chapter 19 of the Atomic Energy Act of 1954, as-4 4 amended, is amended by adding the following new section 5 after section 241: -

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2 1 "SEC. 242. STATE CONCImRENCE FOR FACILITIE8 2 FOR TIIE GEOLOGIC STORAOE OR DISPOSAL OF RAMOAC-3 TIVE WABTES.-

4 "a. The Secretary of Energy shall notify the Governor, 5 the State legislature, and where applicable, the Tribal Coun-6 cil of any affected Indian tribe of its intent to explore a site in 7 such State, or within an Indian reservation, for the purpose 8 of establishing, evaluating, or contracting for the construction 0 of a facility for the geologic storage or disposal, including test 0

10 disposal, of high-level radioactive wastes, non-high level ra-11 dioactive wastes including transuranium contaminated 12 wastes, or irradiated nuclear reactor fuel.

13 "b. Upon rectiving a request from the Governor of any 14 State notified in accordance with subsection a., the Secretary 15 of Energy is authorized and directed to enter into negotia-16 tions with the State for the purpose of establishing formal 17 arrangements under which the State will have the right to O

18 concur or not concur in all stages in the planning, siting, 10 development, construction, and operation of the proposed fa-20 cility. Any such arrangements entered into by the Secretary 21 of Energy shall be binding on all agencies of the Federal 22 Government.

23 "c. The Secretary of Energy shall n'ot commence or 24 contract for any construction work for a faeility for the geo-25 logic storage or disposal, including test disposal, of high-level d

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1 radioactive wastes, non-high-level radioactive wastes includ-2 ing transuranium contaminated wastes, or irradiated nuclear 8 reactor fuel, until the Secretary of Energy and the State in 4 which the facility is proposed to be located have entered into 5 formal arrangements under which the State will have the 6 right to concur or not concur in all stages in the planning, 7 siting, development, construction, and operation of the pro-8 posed facility.".

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