ML20154P299

Submits Comment on 1821 to Establish Nuclear Waste Authority in Response to Request of Trubatch

ML20154P299
Person / Time
Issue date:	01/09/1980
From:	Dircks W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
TASK-TF, TASK-URFO NUDOCS 9810220284
Download: ML20154P299 (17)

Text

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R ub e File Gu gham 3 pjf KGoller RRyan nrrepAN00M FOR: Leonard nickwit RJaske RMinogue JSurmeier GErtter General Cnunsel JOBuntin ED0 r/f REBrowni g Eleins STrubatch FPOM: Millian J. Dircks, DirectorJBMartin NGW Office of Nuclear t'aterial Safety and Safeguards SUB.1ECT: C0"TMS ON S.1821: TO ESTAPLISH A W CLEAR tfASTF AUTHORITY

! pursuant to the request of f?r. Trubatch of your Office, we have reviewed the above cited Pill. The Offices of State proqrans and Standards Developrent l have concurred in the substance of these connents and the Office of the Executivb Legal Director has informed us that they will no lonner perfom leqa1 review of Rills such as S.1821.

There is disagreement between the Offices on only one provision in tbc Bill. The Office of State Programs supports the concept to establish i a separate Authority to assume responsibility for the planning, development, nanagment, operation and care of high-level and TRU disposal sites.

mfSS does not bel,ieve a separate Authority would be productive._ It should be noted that the current policy of the Comission is that of not supporting such an Authority. This was expressed by Chaiman Pendrie.in testinony before the Subcomittee on Energy, Puclear. Proliferation and Federal Services (July 26, 1973) in which he stated that such an Authority "would probably serve to delay resolution of the waste problem without compensating advances in knowledge or approach. Organization is less important at this point in time than clear direction and sound manaqenent. Provision's for State involvenent, unifomity in regulation and disposal, clarification of j regulatory responsibility, user charges and so on do not recuire substantial /

reorganization but instead can be integrated into the existing organizational ,

structures." He agree, however, with the Office of Stato pronrans that /

there are strong arguments for State sponsored low-level waste (LLU)  !

disposal sites. j The trichnical concept presented in the Bill for retrievable surface storaqe during the time when the final desinn of a pernanent waste repository

,is being investigated and licensed is in harmony uith our proposed high-level

\

waste management progran which places emphasis on waste forms and site i i

characterization prior to a permanent repository. This nill also provides for "RC to license high-level waste (plH) at the retrievable surface i j

storage facility, which is consistent with the Comission's expressed desires. ';

The proposed level of State participation is clear and means to deal ]

j with a State veto by Congressional action as suggr'sted by the Comission in PUDEG-0539 are included. Further, the concept places central financial i a

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In addition to the general observations presented above, the Bill has  ;

I several major problem areas which need to be addressed.

i 1

1. : Low-level Waste The Bill' is unclear with respect to the responsibility of the Authority regarding the disposal of LLW. LLW is included within the definition of nuclear waste (see Section 103 (5) on page 5) although many of the Sections following Section 103 which use the tem " nuclear waste" appear to only relate to high-level waste (ItLW), spent fuel and transuranic (TRU) waste.

Do the authors intend that these Sections should also apply to LLW (for

. example, see Sections 101 (9)' and (11)(a), 302 and 305 ) ? Several of the latter. Sections use the specific terns llLW, spent fuel and TRU waste in j place of the general term " nuclear waste."

Section 201(c)(1) addresses the " acquisition of existing nacicar waste facilities not owned by the United States." is this Section intended fo include acquisition by the Authority of the existing, and any new, comercial sites? If so, this and other Sections should specifically spell out i responsibilities regarding acquisition of LLW sites and the authority's

-role and responsibility with respect to further operation; deco.missioning; post-operational maintenance, surveillance and raonitoring and collection and dispersement of funds for such activities. Section 404, the only Section specific to LLW does not address these aspects although they seem .

-to be uencrally covered by other Sections (e.g., Sections 303, 305, 308, 501 and 506).

With respect to t*C regulation, we believe flRC and the Agrement States should continue-to license the comercial sites whether they are sited on land ' owned by the Federal 'or State Government. Imc regulatory authority /

over sites operated by the Authority for defense, non-defense, and " emergency" [ i come.ercial wastes should be iraplemented as set out in Recomendations 1 and 2 of the report, " Regulation- of Federal Radioactive Weste Activities,"

! ~fiUREG-0527,

2. ttRC' Regulatory Authority .

t The Bill provides that tiRC will have licensing and regulatory authority over a number of the new agency's waste managment facilities and activities.

!However, as the Bill is written, there appears to be several areas in which clarification is required. h) it is fairly obvious that the Bill does not intend that Congress perform a i I

l license review for the new agency's waste facilities. Yet the level of h 9"'"'y-"'

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g , , . e a Leonard Bickwit for Congressional review with respect to its program for long-term storage, in effect, will result in approval of specific facilities if the program is 1

approved. Under such a situation it is far from clear what value or authority any licensing agency would have (Sections 305 and 307). ,

A similar situation exists for disposal facilities. Although NEPA is not explicitly abrogated for disposal facilities as it is for long-term storage facilities (Section 304), the fact that specific sites must be ,

submitted to the Congress for review as part of the new agency's program '

makes it very difficult for the licensing agency to carry out its NEPA responsibilities, especially with respect to alternative sites (Sections 402, 403 and 404). The alternatives will have been reviewed and accepted by the Congress before any license application is tendered. Further, in the case of i permanent disposal facilities, site selection is a safety operation. The I latitude for designing around a site is very limited. By approving the sites i proposed by the new agency, the Congress would be making a safety finding as r;

well as a NEPA decision.

Finally, it should be noted that court review of a licensing agency's decision generally deals with procedures and the judgments are legal rather than technical. A veto or overturning of a veto by a body other than a court could well be what amounts to a technical decision made without technical basis or consideration of technical issues involved. In such circumstance, the licensing agency would be second-guessed on matters precisely for which it was chartered.

3. Transfer of Title of Wastes The Bill is silent on the transfer of title for wastes presently held by  !

00E. As written, it does not provide any incentive for DOE to move ahead i aggressively with improved methods for dealing with the present inventory '

except indirectly. This appears to perpetuate the present approach of ,

, maintaining the status quo of facilities which are aging unless the Bill 'j

% infers a Congressional cost-balancing through the budget process.

4. Research and Development Programs \

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The Bill is silent on research and development programs for supporting the activities of the Authority. While transfer of all DOE functions \

in Section 201 implies transfer also of supporting R&D, the Bill should be j clear about the intent of Congress in this area. Section 401 does incorporate l timetables for research, demonstration or development activity, but it is not clear on the research responsibilities of the Authority and other waste generating Federal agencies.

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, In addition, the Bill fails to take advantage of the opportunity to involve States through the establishment of research grant programs such as the land grant college systen which might provide additional incentive for State participation.

l The role of the DOE national laboratories is also unclear. l Enclosed are additional'section-by-section connents on the subject Bill.

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Il%M wnda J, ewra Willima J. Dircks, Director .

Office of Nuclear Haterial Safety I p and Safeguards j

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Enclosure:

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i l The role of the 00L national laboratories is also unc1 r.

' Enclosed are additional'section '-y-section coranents n the subject bill.

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Willia: J. Dircks, Director Offic of Nuclear Material Safety.-

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. .  %. ns g= 1 Ag DISTRIBUTION - EDO 7663 l NHSS r/f-Subject File' ED0 r/f WMPI r/f / Eleins JSurmeipt NGill J0 Bun (ng HShapar REBr ning RRyan JB rtin RMinogue MEMORANDUM FOR: Sheldon Trubatch J ske Office of the General Counsel gh1][pN RDSmith FROM: William J. Dircks, Director Office of t:uclear Material Safet and-Safeguards SUDJECT: COMMENTS ON S.1821: TO ESTABL .ill A HUCLEAR WASTE AUTil0RITY Pursuant to your request, we have reviewed le.above cited bill. The appro-

, priate coments from the Offices of State regrams, Standards Development and l

the Executive Legal Director have been i orporated into this reorandum.

l In general, we support the establishme t of a separate Authority to assuue responsibility for the planning, dev opsent, management, operation and i care of high-level .and TRU disposal ites. There are strong arguments, j however, for State sponsored low-1 el waste (LLW) disposal sites. The technical concept presented in t bill for retrievable. surface storage during the time when the final ( sign of a pennanent waste repository is  ;

being investigated and license is in hanaony with our proposed high-level waste management prograu whic places emphasis on waste fonns and site characterization prior to a ennanent repository. This bill also provides for NRC to license itLW at e retrievable surface storage facility.

The proposed level of St e participation is clear and means to deal with a State veto by Congres ional action as suggested by the Consnission in liUitEG-0539 are includ* . Further, the concept places central financial

-responsibility in a . ngle agency funded by users directly, a principle which will allow fa costing of waste disposal in an open and public '

manner.

Although we end se the concept, the bill has several major problem areas which need to - addressed.

1. Low-Leve Waste t

The Bill unclear with' respect to the responsibility of the Authority regardint the disposal of LLW. LLW is included within the definition of i nuclear iaste (see Section 103 (5) on page 5) although many of the sections

! follow ng Section 103 which use the tenn " nuclear waste" appear to only '

rela to high-level waste (t!LU), spent fuel and transuranic (TRU) waste. ~

1 -Do ie authors-intend that these sections should also apply to LLW (for

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%M ky Q y Sheldon Trubatch Section 20)(c)(1) addresses the " acquisition of existing nuclear waste facilities not owned by the United States." Is this section intended to include acquisition by the Authority of the existing, and any new, coanercial sites? If so, this and other sections should specifically spell out responsibilities regarding acquisition of LLW sites and the authority's role and responsibility with respect to further operation; deconmissioning; post-operational maintenance, surveillance and monitoring and collection and dispersement of funds for such activities. Section 404, the only Section specific to LLH does not address these aspects although they seem .

to be generally covered by other sections (e.g., Sections 303, 305, 308, l 501 and 506).

I have outlined below, the specific responsibilities HMSS believes the Authority.

should have regarding LLW disposal:

a. Responsibility for all existing DOE and any new defense and nondefense wastes and sites.

b. Ability to accept title to and own both existing and new sites used l for disposal of cuarercial waste. The intent of the bill should not i

be " exclusive" but should allow States to own comercial sites during the l

operating phase with subsequent transfer of ownership responsibility to

! the Authority at site closure.

c. Ability to collect, hold and disperse unds for operating, maintenance, renedial action, surveillance and monitoring of sites,

d. Emergency authority to select site, design and operate sites to provide j for contingency storage or disposal capacity for corsacrcial uastes.

With respect to the NRC regulation, ue believe NRC and the Agreement States should continue to license the comiercial sites whether they are sited on .

land wned by the Federal or State Government. HRC regulatory authority over sites operated by the Authority for defense, non-defense, and " emergency" conmercial wastes should be implemented as set out in Recomendations 1 and 2 of the report, " Regulation of Federal Radioactive Waste Activities,"

fiUREG-0527.

2. NRC Regulatory Authority The bill provides that hRC will have licensing and regulatory authority over a number of the new agency's waste nianageraent facilities and activities. Ilowever, as the bill is written, there appears to be several areas in which clarification-

{ is required.

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- 1 L Sheldon Trubatch It is fairly obvious that the bill does not intend that. Congress perfona a license review for the new agency's waste facilities. Yet the level of facil.ity specific detail which the bill requires the new agency to submit for Congressional review with respect to its progran for long-term storage, in effect, will result in approval of specific facilitics if the prograc. is dpproved. Under such a situation it is far from clear what value or authority any licensing agency would have (Sections 305 and 307).

A similar situation exists for disposal facilities. Although HEPA is not explicitly abrogated for disposal facilities as it is for long-term storage facilities (304), the fact that specific sites must be submitted to the Congress for review as part of the new ajency's program uakes it very difficult for the licensing agency to carry out its tiEPA responsibilities, especially with respect to alternative sites (Sections 402, 403 and 404).

The alternatives will have been reviewed and accepted by the Congress before any license application is tendersi. Further, in the case of peruanent disposal ~ facilities, site selection is a safety operation. The latitude for designing around a site is very limited. By approving the sites proposed by the neu agency, the Congress would be naking a safety finding as well as a f! EPA decision.

Finally, it should be noted that court review of a licensing agency's decision generally deals with procedures and the judgraents are legal rather than technical.

A veto or overturning of a veto by a body other than a court could well be what amounts to a technical decision nade without technical basis or consideration of technical issues involved. In such circumstance, the licensing agency would be '

second-cuessed on matters precisely for which it was chartered.  ;

1

3. Transfer of Title of Wastes The bill is silent on the transfer of title for wastes presently held by DOE. As written, it does not provide any incentive for DOE to nove ahead aggressively with improved inethods for dealing with the present inventory except indirectly. This appears to perpetutate the present approach of maintaining the status quo of facilities which are aging unless the bill infers a Congressional cost balancing through the budget procer,s.

4. Research and Development Prograns The bill is silent on research and development prograus for supporting the activities of the Authority. While transfrr of all DOE functions in Section 201 iraplies transfer also of supporting P&D, the bill should be clear about the intent of Congress in this area. Section 401 does incorporate timetables for research, duaonstration or develonnent activity, but it is not clear on the research responsibilities of the Authority and other vaste

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Sheldon Trubatch In addition, the bfil fails to take advantage of the_ opportunity so involve States through the establishment of research grant prograns suc'..as the land grant college system which might provide additional incentive 'or State

- participation..-

The role of the DOE national laboratories is also uncicar

~

- Enclosed are additional section-by-section coments o the subject bill.

~

i.

Willima J. irchs, Director

'. (% Office o nuclear Material Safety

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and S feguards

Enclosure:

l Section by Section Coments on Bill t

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JBMartin RJaske, SP l MEMOEMOUd FOR:- Sheldon Trubatch GCunningham ELD Office of the' General Counsel KGoller, S RDSmith,AMLL Fn0ii: William J. Dircks, Director Office of Nuclear Material Safety and Safegu,a[ds

SUBJECT:

COMMENTS ON S.1821: TO ESTABLISH A NUCL %R WASTE AUTHORITY Pursuant to your request, te have reviewed the aliovejdted bill. The . appropriate comnents.from the Offices of State Programs, Standards Developaent and the Executive' Legal Director have been incorporated t[o this nemorandum. .

~Q In general, we support the establishment 'of a ;,uparate Authority to assume responsibility for the planning, developaent/ management, operation and care of high-level and TRU disposal sites. /There are strong arguments, however, for State sponsorad low-level waste (LLW) disposal sites. The-technical . concept presented in the bill pf retrievable surface during the )

time when the final: design of a pemanpnt waste repository is being investi-gated and licensed 1s in hamony with/our proposed high-level uaste management program which places enphasis on wapte forms and site characterization prior to a permanent repository. This hill also provides for tac to license HLW at the retrievable surface stbrage facility.

/

The proposed level of State pa'rticipation is clear and means to deal with a State veto by Congressional action as suggested by the Comission in NUREG-0539 are included. Jurther, the concept places central financial responsibility in a single agency funded by users directly, a principle

('rq d which will allow fair costinD of waste disposal. in an open and public manner.

Although we endorse the concept, the bill has several major problem areas

'whichneedtoye' addressed.

.. .  ?

1. Low-Level Haste The Bill' fs unclear with respect to the responsibility of the Authority regarding the disposal of LLU. LLW is included within the definition of

.nuclc~a r waste (see Section 103 (5) on page 5) although many of the sections f_ollowing Section 103 which use the term " nuclear waste" appear to only relate to high-level waste (ULW), spent fuel and transuranic (TRU) waste.

Do the authors intend that these sections should also apply to LLW (for l -a m nin wo sections 101 (91 and (11)(a). 302 and 305)? Several of the

-latter sections use the specific . ems HLW, spe it fuel and T! O waste in i - yl*Fe of"the"generu -term "nuclea "wastevn ---- - ~~~ ~~~~~.

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Sheldon Trubatch -

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, Section 201(c)(1) addresses the " acquisition of existing nuclear v ste facilities not owned by the United States." Is this section in include acquisition by the Authority of the existing, and any n)ew, ended to

~

comercial sites? If so, this and other sections should specifically s 611 out responsibilities regarding acquisition of LLW sites and thy! authority's role and responsibility with respect to further operation; decommissioning; post-operational maintenance, surveillance and monitoriig and collection and dispersement of funds for such activities. Sectip6 404, the only section specific to LLW does_ n'ot address these aspegt's although they seem Sections 303, 305, 308,

! to 501be and generally 506). covered by other sections (e.g.,/

I have outl'ined below, the specific responsibi ties isMSS believes the Authority should have regarding LLW disposal:

l '

a. Responsibility for all existing DOE and any new defense and nondefense wastes and sites. /

b. Ability to accept title to and oy!n'both existing and new sites used

/

for disposal of comercial waste. The intent of the bill should not be "

exclusive" but should allow Sfates to won commercial sites during the operating phase with subseq .nt transfer of ownerstiip responsibility to the Authority at site closure.

l l

l c. Ability to collect, hold and dispose funds for operating, maintenance, l

remedial ~ action, surve llance and monitoring of sites.

1

d. Emergency authority contingency storagp',to or disposal site,capacity designfor and operate wastes.

conmercial sites to provide for

/

With respect to the /RC regulation, we believe NRC and the Agreement States should continue to Aicense the commercial sites whe_ther they are sited on land owned by thefederal or State Government. HRC regulatory authority over sites operatkd by the Authority for defense, nondefense, and " emergency" i

comnercial wast 's-should be implemented as set out in Recommendations 1 and 2 of the repo , " Regulation of Federal Radioactive Waste Activities,"

fNREG-0527.

2. .NRC Re9dlatory Authority The bill rovides th'a t NRC will have licensing and regulatory autbority over a nizaber oFthe new agency's waste management facilities and activities. Ilowever,

as the bill'is written, there appears to be several areas in which clarification

is required.

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.. s. 3 Sheldon Trubatch ,

it is fairly obvious that the bill does not intend that Congress perfo a a license review for the new agency's waste facilities. Yet the levely f facility specific detail which the bill requires the new agency t for Congressional review with respect to its program for long-ter/o cubmit storage, in effect, will result in approval of specific facilities if the program f is approved. -Under such a situation it is far from clear what value or

)

l authority any licensing agency would have (Sections 305 and 07). '

i j - A similar situation exists for disposal facilities. . Altt}eugh NEPA is l not explicitly abrogated for disposal facilities as it js for long-term ' '

storage facilities ( 304), the fact that specific sites'must be submitted l

to the Congress for review as part of the new agency,,s program makes it

.very difficult.for the licensing agency to carry out its NEPA responsibilities, especially with respect to alternative sites (Sections 402, 403 and 404). '

The alternatives wil1 have been reviewed and accipted by the Congress before any license application is tendered. Ftp(ther, in the case of pennanent disposal facilities, site selectionyis a safety operation. The latitude for designing around a site is very/ limited. By approving the sites proposed by the new agency, the Congp6ss would be making a safety finding ^as well as a NEPA decision.

Finally, it should be noted that coui't/ review of a licensing agency's decision generally, deals with procedures and Jhe judgments are legal rather than technical.

A veto or overturning of a veto by .a body other than a court could well be what amounts to a technical decision mpde without technical basis or consideration of l technical issues involved. In s4ch circumstance, the licensing agency would be second-guessed on matters precisely for which it was chartered.

i 3.

/  ;

Transfbr cf Title of Wastes ,

i The bill is silent on the transfer of title fer wastes presently held by DOE. As written, it does not provide any incentive for DOC to move ahead aggressively with impr6ved r:ethods for dealing with the present inventory except indirectly. This appears to perpetutate the present approach of maintaining the status quo of facilities ubich are aging unless the bill infers a Congressional cost balancing through the budget progress.

4. Research am Development programs

/

The bill'is/ silent on research and developeent programs for supporting the activit'ies of the Authority. While transfer of all 00E functions in Section J01 implies transfer also of supporting R&D, the bill should be l clear bout the intent of Congress in this area. Section 401 does incorporate l time les for research, demonstration or developaent activity, but it is j not Icar on the research responsibilities of the Authority and other waste l r.L W ou ; a, ui  % uiv . o .

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In addition, the bill fails to take advan.tage of the opportunity toj volve States through the establishment of research grant prograns such as the land grant college system which afght provide additional incentive for' State participation.

'/

/

' The role of the DOE national . laboratories is also unclear./

/

Enclosed are additional section'by section comments on tfic subject bill.

/

/

/

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/ .

William # Dircks, Director Office ,0f Nuclear Material Safety and/ Safeguards

Enclosure:

Section.by Section Comments on Bill j'

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WMPI r/f Eleins ED07663 Subject File NGill NMSS r/f ' HSh'a par WM r/f RRyan JSurmeier RMinogue J0 Bunting GErtter

\ REBrowning STrubatch JBMartin DSmith MEMORANDUM FOR: 1.conard Dickwit KGoller R

General Counsel G unn ngham l FRori: tilliam J. Dircks, Director ED0 r/f

' Office of Nuclear Material Safety arxi Safeguards

SUBJECT:

. COMMENTS ON S.1821: TO ESTABLISH.A NUCLEAR WASTE AUTHORITY l

Pursuant to the request of Mr. Trubatch of your Office, we have reviewed the above cited bill. . The appropriate canments from;the Offices of State Programs, Standards Development and the Executive Legal Director have been incorporated into this mencrandua.-

• Although the broad objectives of this bill are attrective, we are concerned that the establishment of a separate Authority to assume responsibility for - -

the planning, developaent, manageacnt, operation and care of high-level and TRU disposal sites may not be productive. It is our opinion that such a new organization would probably serve to delay resolution of the waste problem without' compensatory advances in ' knowledge or approach. Organization is less important at this point in time than clear direction and sound managenent.

l Provisions for State involvenent, uniformity in reDulation and disposal, clarification of regulatory responsibility, user charces and su on do not require substantial reorgnization but instead can be integrated into the *

! existing crk]anizational structures.

- The technical concept presented in the bill for retrievable surface storage

- during the time when the final design of a permanent aste repository is i being investigated and licensed is in harmony with our proposed high-level waste management program which p1 aces emphasis on waste forms and site characterization prior to a permanent repository. This bill also provides for NRC to license high-lbvel waste (HLW) at the retrievable surface storage facil ity.

The proposed level .of State participation is clear and means to deal with a State vet <> hy Congressional ~ action as suggested by the Conaission in NUREG-0539-are included. Further, the concept places central financial responsibility in a single agency funded by users directly, a principle which will allow fair costing of waste disposal in an open and public manner.

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1. Low-Level Waste i The Bill is unclear with respect to the responsibility of the Authority '

regan11ng the disposal of LLW. LLW is included within the definition of

, nuclear waste (see Section 103 (5) on page 5) although ruany of the sections-i follouing Section 103 which use the tem " nuclear waste" appear to only relate to high-level waste (HLW), spent fuel and transuranic (TRU) waste. 1 Do the authors intend that these sections should also apply to LLW (for i example, see Sections 101 (9) and (11)(a), 302 and 305)? Several of the latter sections use the specific terms HLW, spent fuel and TRU waste in l Place of the general term " nuclear waste."

l Section 201(c)(1) addresses the " acquisition of existing nuclear waste facilities not owned by the United States." Is this section intended to include acquisition by the Authority of the existing, and any new, comercial sites? If so, this and other sections should specifically spell out responsibilities regarding acquisition of LLW sites and the authority's role and responsibility with respect to further operation; decomissioning; post-operational maintenance, surveillance and monitoring and collection  :

and dispersement of funds for such activities. Section 404, the only 1 Section specific to LLW does not address these aspects although they seem  !

to be generally covered by other sections (e.g., Sections 303, 305, 300, l 501 and 506). J With. respect to NRC regulation, we believe hRC and the Agrec*nent States should continue to license the comercial sites whether they are sited on land owned by the Federal or State Coverment. NRC regulatory authority i over sites operated by the Authority for defense, non-defense, and "einergency" '

commercial wastes should be Iniplemented as set out in Recomendations 1 and a 2 of the report, " Regulation of Federal Radioactive Haste Activities,"

NUREG-0527. ,

2. NRC Regulatory Authority j' The bill provides' that URC will have licensing and regulatory authority over. \

a number of the new agency's waste uanagement facilities and activities. 1

. Ilouaver, as the bill is written, there appears to be several areas in which

- clarification is required. T It is fairly obvious that the bill does not intend that Congress perfom a license revieu for the new agency's waste facilities. Yet the level of facility specific detail which the bill requires the new agency to submit

- for Congressional review with respect to its program for long-term storage, in effect, will result in approval of specific facilities if the program is a , ,. , m . . 4. ~ a J M mu n. i ., in c iro... Ar u m. v A ur w durio

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[M hMN . i Leonard (sickwit l A similar situation exists for disposal facilities. Although NEPA is I not explicitly abrogated for disposal facilities as it is for long-term i storage facilities (304), the fact that specific sites must be submitted I to the Cengress for review as part of the new agency's program makes

, it very difficult for the licensing agency to carry out its NEPA l responsibilities, especially with respect to alternative sites (Sections 402, .403 and 404). The alternatives will have been reviewed and accepted by. the Congress before any license application is tendered.

Further, in the case of permanent disposal facilities, site selection is a safety operation. The latitude for designing around a site is very 1.faited. By approving the sites proposed by the new agency, the Congress would be making a safety finding as well as a NEPA decision. .

Finally, it should be noted that court review of a licensing agency's l r' decision generally deals with procedures and the judgnents are legal

! rat!her than technical. A veto or overturning of a veto by a body other l than a court could well be what amounts to a technical decision made l

without technical basis or consideration of technical issues involved.

In such circudstance, the licensing agency would be second-guessed on l matters precisely for which it was chartered.

l l 3. Transfer of Title of Wastes The bill is silent on the transfer of title for wastes presently held by l DOE. As written, .it does not provide any incentive for 00E to move ahead

! aggressively with inpreved ex:thods for dealing with the present inventory

( except indirectly. This appears to perpetutate the present approach of l

maintaining the status quo of facilities thich are aging unless the bill ,

infers a Congressional cost balancing through the budget process. .

i l

4. Research and Development Programs The bill is silent on research and developocnt programs for supporting, the activities of the Authority. While transfer of all DOE f unctions

. . in Section 201 irplies transfer also of supporting RtD, the bill should be clear about the intent of Congress in this area. Section 401 does incorporate timetab;es for research, deconstration or development activity, but it is not clear on the research responsibilities of the

' Authority and other waste generating Federal agencies.

In addition, the bill. fails to take udvantage of the opportunity to involve States through the establisinent of research grant programs such as the land grant college system which might provido additional incentive for State participation. -

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Subject File RJaske

! W WM r/f EDO r/f NMSS r/f Eleins JSurmeier NGill J0 Bunting HShapar ,

c REBrowning RRyan l JBMartin RMinogue HEMORANDUM FOR: Leonard Bickwit RDSmith GErtter General Counsel GCunningham STrubatch i L FROM: Willima J. Dircks, Director l

• Office of Nuclear Material Safety and Safeguards l

SUBJECT:

COMMENTS ON S. 1821: TO ESTABLISH A HUCLEAR WASTE AUTHORITY l

. Pursuant to the request of Mr. Trubatch of your Office, we have reviewed the above cited Bill. The Offices of State Programs and Standards Develo; vent have concurred and the Office of the Executive Legal Director has informed us that they will no longer perform legal review of' Bills such as S.1821.-

There is disagreement between the Offices on only one provision in the-Bill, i The Office of State Prograus supports the concept to establish a separate l Authority to assume responsibility for the planning, development, sanagement, operation and care of high-level and TRU disposal sites. -HMSS does not l believe a separate Authority would be productive. It should .be noted that l the current policy-of the Commission is that of not supporting such an Authority. This was expressed by Chairman hundrie in testimony before the Subcomittee on Energy, Nuclear Proliferation.and Federal Services'(July 26, 1970) in which he stated that such an Authority "would propably serve to delay resolution of the waste problem without co pensating advances in knowledge or approach. Organization is less important at this point in time

! than clear direction and sound managenent. - Provisions for State involvenent, uniformity in regulation and disposal ~, clarification of regulatory responsi-

bility, user charges:and-so on do not require substantial reorganization but instead can be integrated into the existing org6nizational structures." We agree, however, with the Office of State Programs that there are strong arguments for State sponsored low level waste (LLW) disposal sites.n tud in.; e

.The technical concept presented in the Bill for retrievable surface storage,

! during-the time when the final design of a permanent waste repository is j . being investigated and licensed is in harmony with'our proposed high-level l waste management progr.am which places crnphasis on waste forms and site l characterization prior to a permanent repository. This Bill also provides for NRC to license hiDh -lefel waste (HLW) at the retrievable surface storage

~ facility.

The proposed level of State participation is clear and means to deal with a State veto by Congressional action as suggested by the Commission in encn.nm av.. 4 n 1 ora cue s e, m m n y g.. g y n 3y res ;onsibility ir a single agency funded by isers directly , a principle

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