ML20154P455

Responds to Request for More Formal Analysis of 2189 & of Bill Potential Impact on Scope of NRC Authority to License DOE Waste Facilities

ML20154P455
Person / Time
Issue date:	08/29/1980
From:	Trubatch S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Surmeier J NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
References
TASK-TF, TASK-URFO NUDOCS 9810220332
Download: ML20154P455 (10)

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b  %'J l 93 0800 9' UNITED STATES N 0 NUCLEAR REGULATORY COMMISSION p f 'g, (y,,e, WASHINGTON, D. C. 20555 August 29, 1980 MEMORANDUM FOR: John J. Surmeier Division of Waste Management FROM:

lb( Sheldon L. Trubatch Office of the General Counsel y

SUBJECT:

S. 2189 k

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This is in response to your request for a more formal analysis of S. 2189 and of its potential impact on the scope of NRC authority (j to license DOE waste facilities.

On July 30, 1980, the Senate passed s. 2189, the first bill ever to be passed regarding nuclear waste management. The bill would establish a three stage waste management' program: (1) interim storage cf commerical spent fuel in Federal facilities; (2) long-term nonitored retrievable storage of high-level waste and spent fuel in Federal facilities; and (3).research on the ultimate dis-posal of high-level waste and spent fuel in Federal repositories.

A brief summary of the bill and its potential impacts on the NRC follows.

Spent Fuel Title III declares that it is the policy of the Federal government to provide for assured and predictable capacity for the interim

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v storage of spent fuel from civilian power plants. Section 301(a).

This policy would be implemented by a two pronged program:

1. Maximization of storage capacity of existing spent fuel pools at power reactors; and

2. Establishment of federally owned and operated away-from-reactor storage facilities. Section 301(b).

Regarding on-site storage, the Commission, as well as DOE and other relevant agencies, are to take such actions as will encourage and expedite the utilization of such capacity consistent with the following four factors: (a) protection of public health and safety; (b) economic considerations; (c) continued operation of the power plant; and (d) sensibilities of the population surrounding 9810220332 800829 PDR ORG NRCGC

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4 W g each power plant. Section 302. Thus, for the first time, the I l- Commission would be explicitly instructed to include in a licensing {

action considerations of economics and psychological impacts.

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Regarding away-from-reactor storage, the Secretary would be required to acquire or construct at least one AFR for the interim storage of commercial spent fuel. The facility would require an NRC license. Section 306. Consistent with this requirement, Section 310 would grant the Commission explicit authority to license DOE facilities primarily for the receipt and storage of commercial spent fuel. See definition of spent fuel in Section 201(6).

The Commission would also have new responsibilities for the transportation of spent fuel. The NRC and DOE would be required to project the availability of spent fuel transportation casks and be authorized to take such actions they deem necessar" to O ensure the timely availability of such _ casks.

306(c). In addition, the NRC would license and regulate Federal Section transportation of spent fuel in the same manner as it now regulates the commercial transportation of spent fuel. Section 311.

Long-Term Storage The Federal government would officilaly accept responsibility for the ultimate disposal of high-level radioactive waste from civi-lian nuclear activities. Section 401. As a first step, DOE would be required to propose to Congress at least one disposal facility within one year of enactment of this act. NRC and EPA would provide Congress with comments on DOE's proposal. Section 404. These disposal facilities _'would be designed to provide continuously monitored retrievable storage of either spent fuel or high-level civilian waste including reprocessing waste.

Section 402. The NRC would be authorized to license these facil-k

ities; and the National Environmental Policy Act would apply, except that the Commission would not be permitted to consider alternative design criteria. Section 405 The Commission would still be required to consider alternative sites. 126 Cong. Rec.

10239-12400(July 30, 1980).

Ultimate Disposal p

DOEwouldbedirectedtosubmittoCongressandtheNRC/charac-terization report 6for at least one mined repository for geologic  ;

disposal by ' January 1,1985. Section 406(a). In addition, DOE  ;

l would be. directed to explore several alternative disposal metho-  !'

I dologies. Section 406(b).

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\._) (O) 3 Low-Level Waste The bill would declare that each state is responsible for the disposal of low-level waste generated in its borders by non-Federal activities, and would encourage states to propose regional compacts or agreements for Congressional approval. Section 601.

The President would be directed to prepare a comprehensive report on disposal capacity, the status of current commercial low-level waste facilities, and recommendations for remedial actions and regulatory reforms considered appropriate by the Secretary of Energy. Section 602(a). The Secretary would be directed to con-sult with the Commission and other relevant federal agencies..

Section 602(b). He would also be authorized to provide financial and technical assistance to the states. Section 603 State Participation

() The bill would provide two avenues for state participation in nuclear waste management activities: a State Planning Council which would advise on general waste management matters, and Nuclear Waste Repository Review Panels established by states identified as containing potential repository sites. The proposed State Planning Council would continue the structure and functions currently performed by the existing State Planning Council estab-lished by Executive Order. The NRC'would retain observor status.

Title VII.

A Repository Review Panel could be established by any state iden-tified as containing potential repository sites including sites for the test disposal of high-level or transuranic waste. Sec-tion 901(a). These panels would enter into cooperative agreements .

with DOE to provide a process of consultation and concurrence l

' between DOE and affected states. Section 901(b). The agreements il

'# would establish procedures for negotiating and resolving state obj ections; but the agreements would not affect the NRC's author- l ity. Section 901(c). If DOE and a state cannot resolve *bair l differences, then the Repository Review Panel can file objections l Kfth Congress before the Secretary applies to NRC for non tructich i authorization, or 1r no authorization is required, before the ~

l Secretary may becin nnnnevnetion- un- wnni" nne ha antherized to '

c6Nsfruct the repository if either house of Congress sustained the state's objections.

l In the case,of a facility for military waste, a more elaborate I

procedure would be established. If a state objects to such a j facility, but the President notifies Congress that the development j i

r (V) U of such a facility is essential to promote the national security of the United States, then a state's objections must be sustained by both houses of Congress or DOE could proceed. Section 903 For the purposes of this provision, a military waste facility would be defined as one in which at least ninety percent (in terms of curies) of the total amount of high-level wastes, tran-suranic waste, or spent fuel to be placed in the repository originate from DOE defense activities, and any non-defense or licensed waste placed in the repository is less than two percent -

(in terms of curies) of the national total of such waste ,that time. At s

States would also have an opportunity to provide Congress with ~

comments on the Secretary's proposals to emplace waste in a repository. However, the bill would not establish a procedure for formal state objections or Congressional consideration of ,

such objections. 1 NRC-Licensing Authority

' ) You have suggested that S. 2189 might be interpreted as precluding  :.

the NRC from licensing DOE repositories for the ultimate disposal of high-level waste. Currently the NRC believes it has such authority under Sections 202(3),and 202(4) of the Energy Reorgani-zation Act of 1974. Those sections authorize the NRC to license DOE facilities for the storage of high-level waste; and the legislative history of those sections demonstrates that the term B storage was intended to include disp 6 sal. S. 2189 would explicitly define storage to mean the retention of nuclear waste with the intention of recovering such material [Section 201(17)] and would separately define disposal to mean long-tern isolation including monitored retrievable storage. Section 310 of S. 2189 would amend Section 202(3) of the ERA to include spent fuel but would not alter the current language limiting NRC authority to storage. .

Thus, by explicitly defining storage to ezclude disposal, and by rs retaining the word storage in the' ERA, S. 2189 could be interpreted -

l-) as precluding NRC from licensing DOE disposal facilities. This  :

interpretation appears inconsistent with Section 405(c), because l that Section is clearly intended to provide for NRC licensing of

' disposal facilities established by DOE pursuant to Title IV of S.

2189 This intention could not be realized if the definition of storage in S. 2189 is intended to divest the NRC of authority to license DOE disposal facilities because Section 405(c) is explicitly based on Section 202(3) of the ERA. Moreover, it would be unrea- ,

sonable to conclude that Congress intends NRC to license storage }

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conclude that

S. 2189 creates confusion regarding the scope of I

NRC authority to license DOE facilities-for.:the disposal of-

-radioactive waste.

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M M00 UNITED STATES o

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NUCLEAR' REGULATOR 4Y COMMISSION

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. WASHINGTON, D. C. 20555

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L 4 ,,, #I August 29, 1980 i

I l MEMORANDUM FOR: John J. Surmeier l

Division of Waste Management ,

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FROM: V Sheldon L. Trubatch i ih(g--OfficeoftheGeneralCounsel h

SUBJECT:

S. 2189 j This is in response to your request for a more formal analysis of S. 2189 and of its potential impact on the scope of NRC authority

(][ to license DOE waste facilities.

l. On July 30, 1980, the Senate passed S. 2189, the first bill ever ,

i :to be passed regarding nuclear waste management. The bill would  !

establish a three stage. waste. management' program: (1) interim i L storage of commerical spent' fuel in Federal facilities; (2) long- 1 j < term monitored retrievable storage of-high-level waste and spent fuel in Federal facilities; and (3) research on the ultimate dis- i posal-of high-level waste and spent fuel in Federal repositories.

l l

A'brief summary of the bill and its potential impacts on the NRC follows..

l Spent Fuel i

. Title III declares that it is the policy of the Federal government to provide for assured and predictable capacity for the interim storage of spent fuel ~from civilian power plants. Section 301(a).

'This policy would be implemented by a two' pronged program:

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! 1. ' Maximization of storage. capacity of existing spent fuel l, pools at power reactors; and

2. Establishment of federally owned.and operated away-from-J ' reactor storage facilities. Section 301(b).

1Regarding on-site storage, the Commission, as well-as DOE and other relevant agencies, are to take such actions as will encourage and expedite the utilization of such capacity consistent with the following four factors: (a) protection-of public health and safety;-(b) economic considerations; (c) continued operation of

,U the~ power plant; and (d) sensibilities of the population surrounding L

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each power plant. Section 302. Thus, for the first time, the Commission would be explicitly instructed to include in a licensing action considerations of economics and psychological impacts.

Regarding away-from-reactor storage, the Secretary would be required to acquire or construct at least one AFR for the interim storage of commercial spent fuel. The facility would require an NRC license. Section 306. Consistent with this requirement, Section 310 would grant the Commission explicit authority to license DOE facilities primarily for the receipt and storage of commercial spent fuel. See definition of spent fuel in Section 201(6).

The Commission would also have new responsibilities for the transportation of spent fuel. The NRC and DOE would be required to project the availability of spent fuel transportation casks p/ g and be authorized to take such actions they deem necessary to s_ ensure the timely availability of such casks. Section 306(c). In addition, the NRC would license and regulate Federal transportation of spent fuel in the same manner as it now regulates the commercial transportation of spent fuel. Section 311.

Long-Term Storage The Federal government would offic11aly accept responsibility for the ultimate disposal of high-level radioactive waste from civi-lian nuclear activities. Section 401. As a first step, DOE would be required to propose to Congress at least one disposal facility within one year of enactment of this act. NRC and EPA would provide Congress with comments on DOE's proposal. Section 404. These disposal facilities would be designed to prov$de continuously monitored retrievable storage of either spent fuel or high-level civilian waste including reprocessing waste.

~(]) Section 402. The NRC would be authorized to license these facil-ities; and the National Environmental Policy Act would apply, except that the Commission would not be permitted to consider alternative design criteria. Section 405. The Commission would still be required to consider alternative sites. 126 Cong. Rec.

10239-12400(July 30, 1980).

Ultimate Disposal

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DdE would be' directed to submit to Congress and the NRC a charac-

terization report for at least one mined repository for geologic I

disposal by January 1, 1985. Section 406(a). In addition, DOE J would be directed to explore several alternative disposal metho-dologies. Section 406(b).

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['.~ O C) 3 l Low-Level Waste The bill would declare that each state is responsible for the disposal o' low-level waste generated in its borders by non-Federal a'Livities, and wou.1d encourage states to propose regional compacts or agreements for Congressional approval. Section 601.

The President would be directed to prepare a comprehensive report

, on disposal capacity, the status of current commercial low-level

! waste facilities, and recommendations for remedial actions and regulatory reforms considered appropriate by the Secretary of Energy. Section 602(a). The Secretary would be directed to con-sult with the Commission and other relevant federal agencies..

Section 602(b). He would also be authorized to provide financial and technical assistance to the states. Section 603.

State Participation i( The bill would provide two avenues for state participation in nuclear waste management activities: a State Planning Council which would advise on general waste management matters, and Nuclear Waste Repository Review Panels established by states identified as containing potential repository sites. The proposed State Planning Council would continue the structure and functions currently performed by the existing State Planning Council estab-lished by Executive Order. The NRC would retain observor status.

Title VII.

A Repository Review Panel could be established by any state iden-tified as containing potential repository sites including sites for the test disposal of high-level or transuranic waste. Sec-tion 901(a). These panels would enter into cooperative agreements

-with DOE to provide a process of consultation and concurrence between DOE and affected states. Section 901(b). The agreements

(]') wculd establish procedures for negotiating and resolving state objections; but the agreements would not affect the NRC's author-ity. Section 901(c). If DOE and a state cannot resolve their differences, then the Repository Review Panel can file objections with Congress before the Secretary applies to NRC for construction authorization, or if no authorization is required, before the F 'y may begin construction. DOE would not be authorized to c .. oct the repository if either house of Congress sustained the state's objections.

In the case of a facility for military waste, a more elaborate procedure would be established. If a state objects to such a facility, but the President notifies Congress that the development i

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4 of such a facility is essential to promote the national security of the United States, then a state's objections must be sustained by both houses of Congress or DOE could proceed. Section 903 For the purposes of this provision, a military waste facility would be defined as one in which at least ninety percent (in terms of curies) of the total amount of high-level wastes, tran-suranic waste, or spent fuel to be placed in the repository originate from DOE defense activities, and any non-defense or licensed waste placed in the repository is less than two percent (in terms of curies) of the national total of such waste that time. ut States would also have an opportunity to provide Congress with comments on the Secretary's proposals to emplace waste in a repository. However, the bill would not establish a procedure for formal state obiections or Congressional consideration of

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v such objections.

NRC Licensing Authority You have suggested that S. 2189 might be interpreted as precluding the NRC from licensing DOE repositories for the ultimate disposal of high-level waste. Currently, the NRC believes it has such authority under Sections 202(3) and 202(4) of the Energy Reorgani-zation Act of 1974. Those sections authorize the NRC to license DOE facilities for the storage of high-level waste; and the legislative history of those sections demonstrates that the term storage was intended to include disposal. S. 2189 would explicitly define storage to mean the retention of nuclear waste with the intention of recovering such material [Section 201(17)] and would separately define disposal to rean long-term isolation including monitored retrievable storage. Section 310 of S. 2189 would 7_s amend Section 202(3) of the ERA to include spent fuel but would

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not alter the current language limiting NRC authority to storage. l Thus, by explicitly defining storage to exclude disposal, and by l retaining the word storage in the ERA, S. 2189 could be interpreted as precluding NRC from licensing DOE disposal facilities. This interpretation appears inconsistent with Section 405(c), because that Section is clearly intended to provide for NRC licensing of disposal facilities established by DOE pursuant to Title IV of S.

2189 This intention could not be realized if the definition of 1 storage in S. 2189 is intended to divest the NRC of authority to  !

license DOE disposal facilities because Section 405(c) is explicitly based on Section 202(3) of the ERA. Moreover, it would be unrea-sonable to conclude that Congress intends NRC to license storage

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5 facilities but not more hazardous disposal facilities. Thus, I conclude that S. 2189 creates confusion regarding the scope of NRC authority to license DOE facilities for the disposal of radioactive waste.

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