ML20198H365
| ML20198H365 | |
| Person / Time | |
|---|---|
| Issue date: | 05/21/1986 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8605300290 | |
| Download: ML20198H365 (100) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of:
COMMISSION MEETING Discussion of Policy Options on Mixed Oxide, Radioactive, and Hazardous Low-Level Wastes (Public Meeting)
Dacket No.
Location: Mashington, D. C.
Date: Wednesday, May 21, 1986 Pages:
1 - 97 8605300290 860521 PDR 10CFR PT9.7 PDR ANN RILEY & ASSOCIATES Court Reporters 1625 I St., N.W.
Suite 921 Washington, D.C.
20006 (202) 293-3950
f 4
1 D I SCLA I M ER 2
3 4
5 6
This is an unofficial transcript of a meeting of the 7
United States Nuclear Regulatory Commission held on e
5/21/86 In the Commission's office at 1717 H Street, 9
N.W.,
Washington, D.C.
The meeting was open to public 10 attendance and observation.
This transcript has not been 11 reviewed, corrected, or edited, and it may contain 12 inaccuracies.
13 The transcript is intended solely for general 14 Informational purposes.
As provided by 10 CFR 9.103, it is 15 not part of the formal or informal record of decision f the 16 matters discussed.
Expressions of opinion in this transcript 17 do not necessarily reflect final determination or b e'l i e f s.
No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may 21 authorire.
22 23 24 25
7 1
o 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY. COMMISSION 3
4 DISCUSSION OF POLICY OPTIONS ON MIXED OXIDE, 5
RADIOACTIVE, AND HAZARDOUS LOW-LEVEL WASTES 6
7 PUBLIC MEETING 8
9 Nuclear Regulatory Commission 10 Room 1130 11 1717 M Street, Northwest 12 Washington, D.C.
13 14 Wednesday, May 21, 1986 15 16 The Commission met in open session, pursuant to 17 notice, at 10:15 o' clock, a.m., the Honorable NUNZIO 18 J. PALLADINO, Chairman of the Commission, presiding.
19 COMMISSIONERS PRESENT:
20 NUNZIO J. PALLADINO, Chairman of the Commission 21 THOMAS M. ROBERTS, Member of the commission 22 JAMES K. ASSELSTINE, Member of the Commission 23 FREDERICK M. BERUTHAL, Member of the Commission 24 25
r 2
1 STAFF AND PRESENTERS SITTING AT THE COMMISSION TABLE:
2 3
V. STELLO 4
J.
DAVIS 5
R.
BROWNING 6
R. MacDOUGALL 7
M. MALSCH, OGC 8
S.
CHILK, SECY 9
J.
LEHMAN, EPA 10 11 AUDIENCE SPEAKERS:
12 13 W. OLMSTEAD, OELD 14 15 16 17 18 19 20 21 22 23 24 25
3 1
PROCEEDINGS 2
[10:15 a.m.]
3 CHAIRMAN PALLADINO:
Good morning, ladies and 4
gentlemen.
5 Commissioner Asselstine has been detained.
He will 6
be joining us shortly.
Commissioner Zech had other pressing 7
business that arose and will not be here at the meeting, but 8
will read the transcript.
9 Today, the Commission is meeting with the NRC Staff 10 to discuss prcposed policy options on mixed oxide, 11 radioactive, and hazardous low-level wastes.
As I understand 12 it, mixed wastes are those low-level radioactive wastes 13 regulated by the NRC which also contain chemicals classified 14 as hazardous by EPA under the Resource Conservation and 15 Recovery Act, known as RCRA.
16 This meeting, I bel.ieve, will help each of us on the 17 Commission to better understand the complex issues involved in 18 deciding what NRC's approach should be in the regulation of 19 mixed wastes.
20 As you know, the Staff has been working with the 21 Environmental Protection Agency to explore ways of resolving 22 the questions of how RCRA will be applied to the disposal of 23 low-level wastes containing chemically hazardous wastes at 24 licensed sites.
25 The Commission recently received for action
r 4
1 SECY-86-142, a Staff paper which discusses the issues involved 2
and lays out several options for mixed waste regulation.
The 3
program will be highlighted in the Staff's presentation this 4
morning.
The paper is available on that table in the back of 5
the room.
6 I would hope that after this briefing, certainly 7
within the next two weeks, we can have Commission votes on 8
this paper to give appropriate guidance to the Staff.
9 Are there any other comments by fellow Commissioners 10 at this time?
11
[No response.]
12 CHAIRMAN PALLADINO:
If not, then let me turn the 13 meeting over to Mr. Stello.
14 MR. STELLO:
Thank you, Mr. Chairman.
15 I think your characterization of the issue is 16 correct.
It is a very, very complex issue, one for which it's 17 going to take a great deal of time and effort to truly 18 understand.
We hope to be able, at least, to get enough of 19 that to you today to help you make up your minds on where to 20 go on the issue.
21 It is not one for which I think that understanding 22 is yet complete.
EPA is still evolving what they're going to 23 do with respect to the mixed waste issue, the hazardous waste 24 issue, and there are changes that are still ongoing, and even 25 a relatively small change in terms of what is or what isn't a
5 1
hazardous waste -- for example, oil -- adding them to the 2
hazardous waste issue, can make it extremely much more 3
difficult for us to deal with when it involves mixed waste.
~
4 We believe that a final solution will require some t
j 5
new legislation which we need to get on with quickly, in order 6
not to cause a major problem in the low-level waste issue, 7
which we're also obligated to implement by law.
8 Without trying to spend a great deal of time, let me 9
ask John to give you a thumbnail sketch, and then we'll get 10 into the details of what the issue is and where we are on it
'll today.
12 MR. DAVIS:
Thank you, Vic.
j 13 As Vic said, of course, what we intend to do is to 14 discuss with you the information which is in the paper, i
15
'SECY-86-142, to assist you in your consideration of this l
16 relatively complex issue.
1 17 I have with me today at the table, of course, Bob j
18 Browning, Director of the Division of Waste Management, and 19 the principal briefer, who will be Robert MacDougall, who is 20 on the Waste Management Staff.
We do have, of course, in the 21 audience other experts from our Waste Management Division, if 22 you raise some we can't handle at the table.
23 We also asked EPA to have representation here, and 24 we are fortunate in that John P.
Lehman, Director of the Waste I
25 Management and Economics Division, Office of Solid Wastes of i
6 1
EPA, is in the audience.
2 The EPA environmental regulations are very pervasive 3
in their efforts to control contamination of the environment.
4 Chart 1 in your handout does list some of the regulations that 5
have this very great pervasive nature, and we have listed i
l 6
those with acronyms.
The one we will be dealing with most 7
today is the first list, and that is what we call RCRA.
8 Chart 2 is an attempt to show the pervasive nature i
j 9
of the EPA regulations.
It's at generation of the waste, in j
10 transportation, in storage, in transport, and upon disposal.
11 And what we're looking at today and focusing on today is on
)
12 the disposal of mixed waste and RCRA,' that interface between
)
13 us and EPA.
And, of course, as has already been said, this is 14 waste where the NRC and the EPA currently both have regulatory 15 authority.
I 16 We believe that, in the absence of legislation, dual 17 regulation must continue to meet the law.
The NRC Staff i
18 position has been impelled by a desire to avoid dual 19 regulation and to assure a certainty that will not impede the i
20 states and compacts from moving forward, according to the 21 schedules and deadlines of the Low-Level Waste Amendments i
I 22 Act.
So we have been aiming toward to avoid dual regulation.
23 The situation today would require dual regulation.
24 CHAIRMAN PALLADINO:
Could you refresh us a little 25 bit on the requirement, the deadlines for the low-level waste?
l I
1
S e
7 i
~1 MR. DAVIS:
In the briefing, we will talk about 2
that, sir.
}
3 CHAIRMAN PALLADINO:
Oh, okay.
Thank you.
4 MR. DAVIS:
We believe that the current situation-5 may create such uncertainty that it may derail the states' t
j 6
efforts at meeting these deadlines, particularly one of the i
7 early decisions, which is a siting decision.
i I
i 8
There are inconsistencies between the NRC approach j
9 and the EPA approach, aimed at the same goal of public and
{'
10 environmental protection.
1 11 Now you will note from the paper that the Staff i
12 recommends legislation.
However, we recognize also that i
13 clarifying legislation may not be achievable in a manner l
14 timely enough to remove deadline uncertainties.
So we do 15 continue to work with EPA, and we are working on the 16 assumption, one, to come to some conclusion on recommended 17 legislation which both agencies can support, but, two, to work i
18 up a scheme for operation under the existing dual
{
19 jurisdictional approach.
i t
20 We have an active interface with EPA currently to i
21 develop the most efficient methods of exercising dual i
i 22 regulation, if it should continuer to specifically pinpoint j
23 inconsistencies and arrive at resolutions, insofar as j
24 practicable; to continue to develop data on the nature of
]{
25 waste going into the low-level waste sites; and to cooperate 1
l l
i 8
.1 on a statement on siting by EPA, which will enable states and 2
compacts to proceed with their programs to meet the' Low-Level 3
Waste Amendments Act deadlines.
I j
4 CHAIRMAN PALLADINO:
Have you spoken to EPA or
)
5 discussed your recommended actions in SECY-86-142?
6 MR. DAVIS:
They were provided with a copy.
We 7
checked, and they have a copy.
8 CHAIRMAN PALLADINO:
And did you get any feedback?
i 9
Will you cover any feedback that you have?
I 10 MR. DAVIS:
Yes, we can cover that.
i j
11 Bob, why don't you pick up now and give a little bit 12 of the history of how we got where we got?
J 13 CHAIRMAN PALLADINO:
I didn't mean to interrupt your 14 presentation.
15 MR. BROWNING:
To give you a historical perspective 16 of where we've been and where we are today, this really starts 4
17 back in the end of 1982, the beginning of 1983 timeframe when 18 we promulgated our Regulation 10 CFR 61 for new low-level t
i 19 waste disposal sites.
In the comments on that regulation, EPA j
20 correctly noted that there was such a thing as mixed hazardous 21 and radioactive waste and suggested that we continue to work 22 that particular question primarily through the means of an MOU j
23 to work out how the two agencies would work together to s
j 24 resolve that particular segment of the low-level waste i
j 25 disposal problem.
I
i i
9 1
We had been working on an MOU up until the point in J
j 2
time where we concluded that if the desired goal was single i
3 jurisdiction, rather than dual jurisdiction, the MOU just 4
would not achieve that goal, because EPA, under its 5
legislative authority, does not have authority to delegate its 6
authority to the NRC.
So at the time the Low-Level Waste 7
Policy Amendments Act was being considered, both we and EPA I
i.
8 were pursuing a possible course of clarifying legislation that
)
9 would allow EPA to delegate that particular authority to NRC, 10 and our testimony at the time in connection with the Low-Level I,
Waste Policy Amendments Act was framed on that particular j
11 j
12 premise.
l i
13 CHAIRMAN PALLADINO:
So that's no longer a viable l
14 option, at least under the present law, to designate NRC to j
15 have -- or delegate some of the authority to NRC?
i i
16 MR. BROWNING:
Without some kind of legislation, EPA 17 cannot delegate it to us, so some kind of delegation is j
18 required if that's the -- if single jurisdiction is the 19 desired goal.
20 CHAIRMAN PALLADINO:
Is it agreed that -- and it's f
21 my impression that it is from discussions with Lee Thomas, but t
t 22 clarify it for me -- is it agreed with EPA that it's desirable l
23 to have a single regulator of these low-level wastes?
l 24 (Commissioner Asselstine enters,the hearing room at l
25 10:25 o' clock, a.m.)
i a
m
10 1
MR. BROWNING:
I think both agencies recognize that 2
there would be efficiencies inherent in only one agency i
3 regulating a particular site, rather than two, and so I think j
4 there is a common understanding that that would be a desirable l
5 goal, if it's achievable, without compromising the environment 6
and the safety that their regulations and their authority 7
would provide.
l 8
CHAIRMAN PALLADINO:
So wefre working -- at least to 9
that extent, we're working toward a common goal.
i 10 MR. BROWNING:
That's my understanding; yes, sir.
{
11 of course, the Low-Level Waste Policy Amendments Act
]
12 was passed without solving -- without addressing the mixed 1
13 waste, issue, and the congress promised to have hearings on 14 that subject at the beginning of this year.
So far, there i
15 have been three hearings.
And getting ready for those l
16 hearings and interfacing with EPA -- and at this point in 4
]
17 time, it was a different group of people.
The people that had been involved in all our discussions up to that point in time 18 i
)
19 have changed, so it was a new group of people that we're i
l i
20 discussing our interface with.
21 And at that point in time, we first became aware of I
l 22 the fact that the regulations that EPA had in effect at that i
]
23 point in time were in the process of being upgraded to conform 24 with a new law, the 1984 Amendments Act.
j 25 So the picture you should have is, we have^ been i
i i
11 i
1
. aiming at a moving target, and the degree of assurance that we 2
know how that target is going to end up has been one of the 3
uncertainties and one of the difficulties we've had of trying 4
to get educated and informed about what the exact status and 5
what the exact requirement,s that either are in effect or are 6
going to be in effect when EPA does promulgate rules to 7
conform to the 1984 Act.
That's a large element of the 8
uncertainty, and I'm sure it's resulting in confusion on your 1
5 9
parts and your Staff's parts, because it seems to be changing 10 as we go along.
It's an evolutionary process.
1 11 CHAIRMAN PALLADINO:
You referred to the 1984 Act.
l
~12 Is that the latest?
13 MR. BROWNING:
That's the latest Act that affects 14 the Resource Conservation Recovery Act, namely EPA's i
15 authority.
That Act imposed new requirements and additional 16 prescriptive requirements which EPA has to conform with.
And I
17 therein lies an element of the basic problem we have to deal 18 with, is that the legislation has embedded in it some of the 19 inconsistencies and difficulties we find.
It's not entirely 1
20 under EPA's control.
That's part of their problem in dealing 21 with this particular subject.
-i 22 COMMISSIONER ASSELSTINE:
Bob, is the no-migration i
23 part of the philosophy basically the heart of this?
24 MR. BROWNING:
Yes, sir, it is.
And how that would i
1 25 be implemented practically.
12 1
COMMISSIONER BERNTHAL:
To what extent -- well, 2
let's see, maybe it's too detailed a question.
Let's go 3
ahead.
4 MR. BROWNING:
During this period of time, we did 5
conduct additional technical studies to make sure that we had 6
a good, factual basis to conclude what we had concluded 7
earlier, that the mixed waste population that's going into the 8
sites today is a relatively small part of the waste going into 9
the disposal sites, relatively small from both the quantity 10 and the hazard associated with it.
And those studies are 11 available.
12 CHAIRMAN PALLADINO:
Chemical hazard or radiological i
i 13 hazard?
14 MR. BROWNING:
The chemical hazard piece.
In 15 talking about mixed waste, we define that in the-broadest 16 possible sense.
It would be any radioactive wastes that also 17 had a chemical component associated with it as it went into 18 the disposal site.
19 Now our studies --
20 CHAIRMAN PALLADINO:
But you said there was a small 21 hazard, and I wasn't sure whether it was chemical or 22 radiological.
23 MR. BROWNING:
The chemical hazard.
I'm talking 24 about the chemical piece.
25 Our studies focused in.on what that actual is as of 1
m
'l
13 1
today, and based on a survey, it ends up -- we ended up 2
concluding that the percentage is approximately 3 percent by 3
volume of the waste going into the sites.
Now that number 4
could be larger or smaller, depending upon the accuracy of the 5
survey, and we're going to continue following up tb nake sure 6
that that is an accurate number.
7 We also have a relatively limited population, we
)
8 believe, of the kinds of constituents that are going into our 9
site, compared to the kinds of constituents that EPA has to worry about at the hazardous waste sites.
In other words, we 10 I
11 have a very small portion of the total hazardous waste 12 problem.
The mixed waste problem is a very small percentage 13 of that.
.i 14 COMMISSIONER ASSELSTINE:
Are there hazardous 15 chemical wastes that are generated by federal activities and 16 that are disposed of in federal' facilities anywhere?
17 MR. BROWNING:
Yes.
The DOE site in this connection 18 is a different kind of story, we believe, and that is one of 19 the reasons why it's very difficult, when you deal with the 4
20 people on the Hill and EPA and other people that are 21 interested in this is, they're looking both at the DOE 22 situation and the NRC commercial situation, and they really 23 are two entirely different situations.
1 24 CHAIRMAN PALLADINO:
Why are they different?
i 25 MR. BROWNING:
Because the DOE facilities have a i
1
U 14 1
larger --
2 CHAIRMAN pALLADING:
What about the DOE?
3 MR. BROWHING:
The DOE situation is not -- what I 4
describe, which is a knall percentage of the problem.
The 5
chemical problem i~s a large problem at the DOE facilities.
6 CHAIRMAN PALLADINO:
I see, Arc the hazardous 7
chemicals well identified., or is that list changing also?
8 M2. BROWN'INg!
Well, that list is changing also.
As 9
we have indicated in the paper, to comply with the 1994 10 Amendments and to keep up Vith what industry generates, it's a 11 constantly evolving situktion.
12 Mr Stello referred to a specific case in point that 13 we're aware of that was n't factored into our survey -- namely 4
o 14 waste oils.
We believe that probably if you throw waste oil 15 into the list of hazardous wastes, and there is no de minimis 16 concept of how much oil is involved, our population -- you 17 know, the volume -- would go up.
The tota _ quantity and 18 hazard would still be small.
In other words, we'd probably 19 have a waste drum that has a very small arount of waste oil in 20 it, but if that waste oil is in it, and you know it's in it, 21 then it would be a hazardous waste.
22 One of the other technical studies we conducted in 23 order to get a firm factual feel for the situation was where i
24 we did some independent monitoring at some of the sites where 1
25 we most likely expected to see hatardous constituents in the i
i 1
15 1
groundwater associated with the disposal site.
2 Those studies showed that the constituents that our 3
survey said were the major hazardous constituents -- namely, 4
lead, chromium, and the toluene and xylene that's associated 5
with liquid scintillation v,ial wastes -- were not detected in 6
the groundwater; however, we did detect in the groundwater 7
solvents, industrial cleaning solvents, which my hydrologists 8
tell me are ubiquitous everywhere.
If you sampled water 9
around a sanitary landfill or a community dump, that kind of 10 Stuff would probably be picked up, which indicates to us what 11 I just referred to, that probably you can conceive of somebody 12 in a plant, for example, cleaning up a radi' active spill using o
13 a rag saturated with the solvent, and then that rag goes into 14 the radioactive waste drum.
If that goes to the site, it 15 eventually leaches into the groundwater and you detect those 16 constituents, that would be a violation of the RCRA 17 requirements.
la But the main point of this discussion is that we 19 think it's a relatively small portion of the problem, which 20 leads us to conglude that working toward single jurisdiction 21 is not that unreasonable.
If the thing had come out 22 differently and there was a large population of chemical 23 wastes at the site, maybe the conclusion would be different, 24 that you really do need dual jurisdiction.
25 COMMISSIONER BERUTHAL:
Is it really that hard to n
y y _
16 1
1 make a call in the case of given a set of materials or a given 2
site as to what the dominant risk is?
3 MR. BROWNING:
No.
We conclude the dominant risk at 4
our sites is the radioactive hazard.
The surveys we've run 5
and the sampling we've run demonstrate that.
6 COMMISSIONER BERNTHAL:
And so in this case, how do 7
we know that?
Who says that it's the dominant risk?
And 8
perhaps not at existing sites only, but also for mixed 9
materials.
Who has made the determination that the 10 radioactive risk is the dominant risk?
11 MR. BROWNING:
Well, we've concluded that, and we've 12 provided our studies to EPA, and I think they have also 13 concluded that, you know, given the facts that we've 14 generated, there isn't any question about it, particularly 15 when you compare one of our sites to a hazardous waste site, 16 and you look at the tons and tons of chemical wastes that are 17-going into those sites.
18 Just to give you a rough feel, if the volume numbers 19 are correct, the total quantity of the chemical waste, the 20 hazardour vaste that's going into our disposal sites, all 21 three of them, is on the order of one-tenth of a percent of the population that's going to the hazardous waste sites.
22 23 COMMISSIONER BERNTHAL:
Quantity?
Quantities?
24 MR. BROWNING:
Quantity, volume.
25 COMMISSIONER BERNTHAL:
What difference does that i
L
17 1
make?
It's the toxicity that matters, isn't it?
2 MR. BROWNING:
It's really both, a combination of 3
both, yes.
4 COMMISSIONER BERNTHAL:
Well, sure.
But ultimately 5
toxicity is what counts.
6 CHAIRMAN PALLADINO:
But I gather you surveyed the 7
various materials, and that entered into your conclusion, I 8
presume.
9 MR. BROWNING:
Yes, yes.
It's both the quantity and 10 the toxicity.
11 COMMISSIONER BERNTHAL:
The other difference between 12 radioactive, of course, and chemical waste is that whatever 13 its undesirable attributes might be -- radioactivity, I'm 14 speaking of -- the good part of it is that the effects are 15 known.
It's pretty well known, it's easily measured, and the 16 effects are absolutely predictable, based on the quantity 17 present.
And that's certainly not true for chemical waste.
18 You're dealing with a vast uncertainty and a changing target, 19 a constantly changing target.
20 That's why I'm a little skeptical.
21 MR. BROWNING:
The population that is going into our 22 sites, along with the radioactive waste appears to be fairly 23 limited.
It's a limited number of constituents compared to 24 the thousands of constituents that are, you know, listed 25 hazardous wastes or might fail to meet the characteristic test 1
18 1
that EPA requires.
2 At any rate, we are still continuing to learn, we 3
are still continuing to collect data.
But I think our initial 4
feel that the mixed waste pieces are a relatively small 5
portion of the problem at the disposal, at the low-level waste 6
disposal sites, has been confirmed by the data we have 7
collected.
8 COMMISSIONER ASSELSTINE:
Bob, if you compare, as 9
you mentioned, 3 percent by volume of the total amount of 10 low-level waste generated, how would you compare the volume of 11 mixed waste on the commercial side to the volume and toxicity 12 of the mixed waste generated through DOE's programs and not 13 disposed of by the federal government.
14 MR. BROWNING:
I don't have data to really address 15 that.
16 CHAIRMAN PALLADINO:
Is it possible to get that 17 data?
18 MR. BROWNING:
I suspect so, because EPA and DOE 19 have been working on how to deal with their waste stream.
But 20 they also have a bigger -- I think a bigger population of 21 purely hazardous material, not mixed.
22 MR. DAVIS:
A' d, as you know, there is still some 23 consideration in DOE, $etween DOE and EPA and us, as to what 24 constitutes mixed waste.
You know, they have a definition, 25 what we consider a somewhat unusual definition of byproduct i
19 1
material.
And if that definition carries, all that waste 2
would not be called mixed waste.
3 COMMISSIONER BERNTHAL:
Are we talking mostly about 4
existing sites here, or are we also talking --
5 MR. BROWNING:
No.,The main thrust -- the main 6
concern is the new sites, the new Low-Level Waste Policy Act, 7
the states are responsible to bring on the line by 1993.
8 COMMISSIONER BERNTHAL:
And the train of materials 9
that would go into those sites?
10 COMMISSIONER ASSELSTINE:
That's right.
11 MR. BROWNING:
That's right.
12 COMMISSIONER BERNTHAL:
How do we know what the 13 dominant risk is then if we haven't even seen the waste?
14 MR. BROWNING:
When I gave you the facts, that's 15 based on what is being generated today.
If you project ahead 16 as to what --
17 COMMISSIONER BERNTHAL:
Do we know what's in 18 existing sites, then?
Do we know what's there that --
19 MR. BROWNING:
As I indicated, we did a survey on 20 what the generators are currently generating to get an idea of 21 what currently could be going to the sites as of that 22 particular point in time.
It doesn't address what went in in 23 the past or what's going in in the future.
1 24 We also monitored the sites to see whether what we 25 actually see in groundwater would match up with what that i
20
~.
1 survey said, and it was different.
2 CHAIRMAN PALLADINO:
It was what?
i 3
MR. BROWNING:
It was different, but it was 4
different in a way that probably indicates that the 5
constituents that are RCRA hazardous wastes that are going 6
into the sites in the relatively large volumes, the 3 percent, 7
at least at this point in time, are not getting into the 8
groundwater, which is the whole thrust of the RCRA 9
requirements and regulation.
The intent of that is to keep 10 things from getting into the groundwater.
11 MR. STELLO:
Bob, I think Commissioner Bernthal's 12 question is directed more at trying to understand, do we know 13 the kinds of hazardous material going into the sites and being 14 able to make the judgment that you made that said the 15 predominant risk is from the radioactive elements there rather 16 than from the chemical hazard.
Do we know enough about the 17 characterization of that chemical hazard?
18 COMMISSIONER BERNTHAL:
That's right.
I mean, you 19 have said volume twice.
And, to pick a bad example, it 20 doesn't take much volume of dioxane, and if it were 3 percent, 21 I know where I would place my money on the dominant risk.
I 22 guess there is argument about that even, but -- or benzene or 23 acetone or lots of other things I can imagine.
24 Has there really been a careful look at what's 25 there, the materials, the carcinogenicity?
I'm not saying
21 4
1 that right.
2 MR. MacDOUGALL:
Well, let me try to shed a little l
3 more light if I can.
4 One of the findings of the Brookhaven report was 5
that the currently operating sites do have a system whereby if 6
they get a mixed waste coming into the facility -- I mean, 7
there is some questions about the predominance of the hazard 8
-- they run tests on the waste to determine the predominance 9
of the hazard.
And they can still accept mixed wastes, you 10 know, under state regulations on a case-by-case basis even if 11 the nonradiological hazard might slightly exceed the 12 radiological hazard.
13 We are not aware of, you know, how many situations 14 where that has arisen.
But my point is that at least the 15 operating sites have some sort of methodology by which they 16 can assess the relative hazard to the incoming waste and try 17 to comply with the requirement that is currently in our Part 18 61 Rule that the waste be treated to reduce the 19 nonradiological hazard to the maximum extent practicable.
20 MR. BROWNING:
I think in answer to your question, 21 though, none of our studies really addressed your point 22 specifically.
We are looking at it at a relative standpoint, l
23 you know, relatively speaking, primarily on a volume basis.
24 It's not as precise as what you are looking at.
25 COMMISSIONER BERNTHAL:
I simply don't accept volume
22 1
as a criteria.
If that's the way it's being done, it seems to 2
me that the criteria for these are carcinogenic hazards.
3 MR. BROWNING:
Well, the bottom line criteria is 4
what gets into the groundwater, and this isn't available.
5 CHAIRMAN ?ALLADINO:
I was going to ask you how we 6
are using this as a criterion?
7 MR. DAVIS:
The only thing we were trying to do, it 8
goes back to the dual jurisdiction thing.
And the question 9
was -- I guess the question is, in looking at it, since 97 10 percent of the material by volume going into it is 11
" radioactive waste" and 3 percent is mixed waste, it seemed in 12 developing our approach, that the NRC perhaps should be -- if 13 you go to a single jurisdiction -- the lead agency, where, if 14 you go -- if it had been 97 percent chemical waste and 3 15 percent radioactive waste, that approach might be quite 16 different.
17 But what we were really looking for is, which agency 18
-- assuming we go to a single jurisdiction, which agency is 19 more logical as the lead agency.
20 CHAIRMAN PALLADINO:
I gather that's the way this 21 criterion was applied?
i 22 MR. DAVIS:
We looked at it to see what is the --
23 from what we could see, from at least the volume approach, is 24 this a big problem, a lot of"this waste going into low-level 25 waste sites?
Or, is it not a lot of waste going into these i
23 1
sites?
2 But it was basically was aimed toward, if you don't 3
have jurisdiction, which of the two agencies should exercise s
4 the jurisdiction.
5 COMMISSIONER BERNTHA,L:
Yes, I understand that.
I 6
don't want to beat this to death, but the thing that troubles 7
me is that if it's being based on volume, to me, that isn't 8
right.
It should be based on the real hazardous content, an 9
assessment of whether you've got a chemical constituent that 10 is explosively carcinogenic, or is greatly unknown in its 11 carcinogenic capability, as opposed to the radioactivity where 12 we pretty well know what the risks are.
13 If that's the standard that is being used, that the 14 volume standard is dominant, then I've got a problem with the 15 way this is being handled.
It seems to me what you want to 16 have is a wise man, or a group of wise men, that looks at a 17 given site and makes a decision on where the primary risk is.
s 18 And I don't feel very comfortable, frankly, about the NRC 19 handling a site just because it's a higher volume of 20 radioactive waste when, in fact, there ought to be some people 21 who know a lot of chemistry and biochemistry and medicine 22 handling'a site like that.
23 MR. STELLO:
Let me make a point.
It does not 24 matter whether it is us or EPA.
25 The safety issue that's there for chemical hazards f
24 1
or hazards from the radioactive material will be dealt with.
2 The issue is how to deal with them.
Deal with them together, 3
separately, one or the other.
The choice needs to be made how 4
we are going to proceed.
5 COMMISSIONER BERNTHAL:
I'm sorry.
I don't see the 6
point.
I mean, if the decision is that it's golng to be dealt 7
with by NRC, my point is that the NRC may not ca qualified to 8
deal with this.
9 MR. STELLO:
Well, if we are going to deal with it, 10 there will be EPA's rules.
They will delegate to us the 11 ability to do that, and we will have to make sure that we have 12 the standards and the people that can do that work if we do it 13 that way.
14 On the other hand, if EPA finds some way to have 15 them do it, they, too, will need to have the capability to 16 assure that our standards are met and that that material is 17 placed safely.
18 It's not an issue of safety.
Whichever one is going 19 to do it, it's going to be done correctly.
20 I think there is another element that has not been 21 said, and as part of the survey the judgment was there that 22 the volume of those other materials that's in that 3 percent 23 are not "as hazardous" as some of the other things that EPA 24 has to deal with.
25 That wasn't specifically pointed out as a point we
25 1
ought to go back and carefully look at.
But we don't want to 2
leave the impression that should we do it, we are going to 3
slough off in some way the chemical hazard associated with --
4 COMMISSIONER BERNTHAL:
Vic, I understand that.
But 5
this is shades
'.f Sequoyah, I'm afraid.
Right now, we do not 6
have the kind of expertise to deal with a waste site that is t
7 97 percent radioactive by volume hazard, but may have a 8
serious chemical hazard that requires the kind of expertise r
l 9
that today is not resident in this agency, is resident in the 10 EPA.
.i
)
11 Now, if we want to create a shadow EPA over here 12 to handle things like that and can get the people, that's 13 fine.
But it is an implementation problem, it seems to me.
14 It's not just a matter of --
15 MR. STELLO:
That is correct.
Perhaps the right way
{
16 to do it is joint.
17 MR. DAVIS:
That very well may be your decision, 18 that you want to do it jointly.
That's okay, too.
19 But I think the point is here -- you are right, this 20 is an area of dual jurisdiction, a clear area of dual 21 jurisdiction.
And what the Staff and EPA have been trying to 22 do is to pinpoint this as a problem and bring it to the 23 people's attention who can provide a solution to the problem.
24 I don't think it's a case of the perception, that 1
25 there is a gap.
I think the perception here is not a gap, but
~ _.
26 1
overlap.
2 COMMISSIONER BERNTHAL:
I understand that.
But the 1
3 problem may turn out to be that unless we make the decisions 4
carefully and correctly, then there may be a gap in the 5
agency's expertise that ends up handling one site or another.
6 That's the potential difficulty.
7 CHAIRMAN PALLADINO:
You did mention something, i
8 Fred, that I would like to explore just a minute.
9 Did you imply that at one site it might be single i
10 and NRC, at another site that might be single and be EPA, and 11 another site might be something different?
12 COMMISSIONER BERNTRAL:
Did I imply that?
)
13 CHAIRMAN PALLADINO:
Yes, you said on a site-by-site 1
14 basis they should review this.
And it seems to me that we-l 15 ought to pick one procedure and go.
I just want to clear that i
16 up in case I just got a false impression.
In other words, if j
17 we are going to handle low-level waste burial grounds under 18 NRC, then it should be NRC for all of them.
That's my 19 feeling.
20 COMMISSIONER BERNTHAL:
No matter how many chemical 21 constituents there might be?
22 CHAIRMAN PALLADINO:
Well, that's my feeling.
If i
23 it's EPA, then it should be EPA in all of them.
Otherwise, j
24 you are going to have one site that's one, and another site 25 that's another.
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27 1
COMMISSIONER BERNTHAL:
It sounds like another 2
argument to combine the two agencies, frankly.
But I will 3
leave that alone for the moment.
t 4
COMMISSIONER ROBERTS:
With a single administrator.
5
[ Laughter.]
i 6
COMMISSIONER BERNTHAL:
It's an easy way to finesse 7
the problem.
8
[ Laughter.]
f 9
MR. STELLO:
You're starting to appreciate the l
10 complexity of the issue.
i 11 CHAIRMAN PALLADINO:
But I do think you raised 12 several very important points.
13 MR. BROWNING:
I think with regard to the standard 4
14 setting, that is how much -- what is the real hazard, how much 15 is allowable, that's a real question as to, you know, where 16 that expertise resides.
17 With regard to all the other expert'sr in dealing 18 with the disposal site, I don't think there is any question i
2 19 but what we have it on this Staff.
20 CHAIRMAN PALLADINO:
Can I ask you a question?
I've 21 still got a residual on Commissioner Bernthal's question.
22 Have you and EPA agreed that you should try to have 23 a single regulatory body overseeing these low-level wastes?
24 And is there an agreement between the two staffs, at least, i
25 that it should be NRC for the low-level waste?
Or is that --
a l
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1 do you have differences of opinion --
2 MR. BROWNING:
I think that's still evolving.
At 3
the time of the Low-Level Waste Policy Amendments Act, the two 4
agencies were together in terms of there ought to be one 5
agency dealing with it.
6 The degree to which EPA was still involved, whether 7
it be associated with setting the actual standards based on 8
the health effects, whether there would be oversight, that was 9
still not clear.
l 10 CHAIRMAN PALLADINO:
Not clear.
Okay.
11 MR. BROWNING:
So it wasn't clear how cleanly it 12 would be NRC off completely by itself.
We've always gone 13 under the impression that we would not duplicate, you know, 14 resources that are available at EPA with regard to the 15 kinds of things that you are concerned about.
16 COMMISSIONER BERNTHAL:
So even though we may have 17 site jurisdiction, the understanding would be that we would be 18 able to dip into EPA's expertise to assist us in --
19 MR. BROWNING:
Or if they depend on outside 20 contractor technical assistance, we might be able to tap into l
21 that also.
22 MR. STELLO:
As I understand it right now, today, 23 under the law they do not, and cannot, delegate that to us.
24 So at the moment, that's academic unless you get the law 25 changed.
29 1
MR. DAVIS:
There is dual jurisdiction at the 2
moment.
3 COMMISSIONER ASSELSTINE:
Right.
They can delegate 4
to a state, but not to another federal agency.
5 CHAIRMAN PALLADINO:
Okay.
Do you want to go on?
6 MR. STELLO:
That is correct.
(
7 MR. BROWNING:
I think at this point, maybe it would 8
be best to go directly to the briefing charts.
9 MR. MacDOUGALL:
Gentlemen, it is a privilege for a 10 Staff member like me to be here, and I hope I live up to that f
11 privilege.
4 12 May I call your attention, since a lot of the things 13 having to do with the definition of mixed waste and those 14 sorts of things have been covered, to the chart that outlines 15 the basic elements of the Resource Conservation and Recovery 1
)
16 Act.
It's Page 4, Chart 4.
17 CHAIRMAN PALLADINO:
What page?
18 MR. MacDOUGALL:
Page 4.
And our thought was, with 19 apologies to those who already know RCRA, that at least we 20 ought to give you a quick tutorial on the basic elements of 21 the Act so that you have an understanding of what EPA has to 22 do.
23 When the Act was passed, of course, it defined h
24 hazardous waste.
And if you will indulge me for a' minute, t
25 hazardous waste is defined as a solid waste or a combination 1
30 1
of solid waste, that because of its quantity, concentration, 2
physical or chemical or infectious characteristics may either
't 3
cause or significantly contribute to an increase in mortality 4
or serious irreversible illness or incapacitating reversible 5
illness, or -- and this is a point that we will be returning j
6 to shortly -- that it may pose a substantial present or future l
7 hazard to human health and the environment if it's improperly 8
treated, stored or disposed of or otherwise managed.
9 It was this last provision that Congress returned to 10 in the 1984 amendments to try to put teeth into.
11 CHAIRMAN PALLADINO:
I'm sorry.
I missed that.
I 12 missed the last phrase.
13 MR. MacDOUGALL:
The hazardous waste is defined in 14 part at least in terms of whether it poses a substantial 15 present or future risk to human health and the environment if 16 it's improperly managed.
And the '84 amendments were designed 17 to sort of set out in more specificity what proper management 18 is to be.
19 COMMISSIONER ASSELSTINE:
Embedded in the statute, i.
20 or its legislative history, is there any recognition of the de 21 minimis concept?
That is, that you might reduce 22 concentrations to the point at which it no longer qualifies as 1
23 a hazardous waste?
24 MR. MacDOUGALL:
Well, there is a provision in EPA 25 regulations on how you identify hazardous waste.
And you put
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31 1
it through several tests for things like ignitability, 2
reactivity, corrosivity or toxicity.
3 And if you put it through those tests and the 4
results exceed, say, a concentration for toxicity, it would be 5
considered a hazardous waste.
,Then EPA has other ways of --
6 they actually list substances that they consider to be 7
hazardous as well where they --
8 MR. BROWNING:
I think once it's on the list, we are 9
not aware of any de minimis concept.
That's one of the things 10 we're recommending, that somehow that try to be acknowledged.
11 COMMISSIONER ASSELSTINE:
I guess what I'm 12 wondering, though, is that concept that is embe'dded in one of 13 your options in the Staff paper, does that run headlong into 14 what Congress intended to accomplish in the '84 amendment?
15 MR. BROWNING:
Well, it may.
16 COMMISSIONER ASSELSTINE:
So you are taking on the 17 basic concept of RCRA, the whole philosophy of how these 18 materials are to be disposed of is basically what you arc 19 doing?
20 MR. BROWNING:
Not really, I don't think, because 21 I think our philosophical basis is exactly the same.
You 22 ought to try to avoid getting it into the groundwater.
23 We think our regulation does that.
Unfortunately, 24 we always get painted with the brush that we allow leaky 25 sites.
What we do is, we try to get a good site, but we t
=,,-,4.-n r-
--n.-,,,,
32 1
acknowledge that no self-respecting technical person, at least 2
not on my staff that I can find, is going to say that there 3
isn t some possibility that eventually something might leach 4
out.
And you arrange so you make darn sure it never goes over 5
that particular amount.
We don't promise zero.
I j
6 MR. MacDOUGALL:
I'll be discussing this shortly in 4
7 a little more detail.
8 The other elements of the 1976 law establish a 9
cradle-to-grave tracking system, so you know where the waste 10 is.
It differs slightly from NRC's system in that a generator 11 dces not have to get authorization to possess the feedstock, 12 if you will, to create the waste, whereas in our situation, a j
13 licensee would have to get a license to possess the material 14 and use it just to make the waste.
15 As a result of that, RCRA depends very much on the i
16 generator to identify and report what kind of hazardous waste 17 he is generating and in what quantity.
18 CHAIRMAN PALLADINO:
Lat me make su;;a I understood 19 that point.
You are saying according to RCE' a generator has 20 to get a license to produce hazardous wastes?
21 MR. ::acDOUGALL:
There are separate requirements for 22 the generator, the transporter, and the owner / operator of a 23 treatment or disposal site, under RCRA.
Where, for example, thegeneratordisposesorstoresadaterialon-site,hewould 24 25 have to have -- you have to meet the requirements for
33
^
1 generator and also an operator for the storage and disposal 2
site as well.
3 CHAIRMAN PALLADINO:
To produce the hazardous waste, 4
at least the chemical part, he doesn't need anything from NRC, 5
but he does need a license --
6 MR. MacDOUGALL:
He needs a permit from EPA.
7 CHAIRMAN PALLADINO:
To produce the radiological 8
waste?
9 MR. MacDOUGALL:
Right; for the radiological.
The 10 program, like NRC, authorizes the delegatio'n of regulatory 11 authority to qualifying states.
There is a slight difference 12 in that delegation in that EPA can enforce a violation 13 directly, whereas under an agreement the NRC recedes entirely i
l 14 from its regulatory authority for the particular material.
I I
15 That is something I just wanted to bring to your attention.
i 16 COMMISSIONER ASSELSTINE:
Are there generators of 17 mixed waste that are not licensed by us or by an agreement 18 state?
4 19 MR. MacDOUGALL:
Mixed waste?
No.
20 COMMISSIONER ASSELSTINE:
To the extent generators 21 produce hazardous wastes that also have radiological j
22 constituents, they are also licensed by us?
23 MR. MacDOUGALL:
Yes.
That's the dual -- as a 24 matter of fact, we are in the process of doing a comparison 25 between our list of licensees and EPA's, to see where there is
34 1
commonality.
2 Turning to the next chart on the key policy elements 3
of the 1984 amendments, as I said, they tried to specify, put 4
more teeth into assuring proper management of the waste.
5 Under the first bullet, the intent or the policy 6
purpose or one of the policy purposes of these amendments was 7
to assure that the generation of hazardous waste is reduced or 8
eliminated as expeditiously as possible; and to help promote 9
that goal, there is a statutory presumption in the 1984 10 amendments against the land disposal of waste, unless EPA 11 determines that prohibition of land disposal, by one or more 12 methods of land disposal, is not required in order to protect 13 human health and the environment for as long as the waste 14 remains hazardous.
15 You will note there are a couple of ellipsis marks 16 in the quote, and if you will indulge me for a moment, they 17 are just to give you an idea of the tilt in the law toward the 18 prohibition on land disposal.
The administrator has to take 4
19 into account in determining what wastes should be prohibited 20 from land disposal, the long-term uncertainties associated 21 with land disposal, the goal of managing hazardous waste 22 properly in the first place, and the persistence, toxicity, 23 mobility and propensity to bicaccumulate the waste.
24 Those are some fairly substantial considerations 25 that EPA has to take into account in determining whether to
i 35 1
prohibit land disposal.
2 COMMISSIONER ASSELSTINE:
What are the options other 3
than land disposal that presumably the statute tilts in favor
+
4 of?
Incineration?
5 MR. MacDOUGALL:
Yes, incineration would be either 6
depending upon the degree of reduction, the hazard would be 7
considered either a disposal, I guess, or a treatment method.
8 COMMISSIONER ASSELSTINE:
Is storage or disposal in 9
an engineered facility considered to be an alternative to land 10 disposal?
11 MR. MacDOUGALL:
I'm not sure how EPA defines --
12 makes the difference, but I know that the EPA re~gulations say 13 that if you are a generator and you accumulate more than 90 14 days worth of hazardous waste, you have to get a storage 15 permit.
How they cut the distinction between storage and 16 disposal, maybe it will become clear as I go through this.
17 COMMISSIONER ASSELSTINE:
But is there any other 18 option-other than incineration?
I clearly get the sense that 19 what Congress was after is they didn't want Love Canal, they 20 didn't want this stuff dumped in the ground.
21 MR. MacDOUGALL:
Yes.
22 COMMISSIONER ASSELSTINE:
But what are the options 23 that they really were looking for, other than incineration?
24 MR. MacDOUGALL:
Reusing, recovering the energy 25 value.
36 1
MR. BROWNING:
If the costs go up enough that it is 2
an economic incentive to try to r'e-use it, recycle it, keep it 3
up on the surface.
4 MR. MacDOUGALL:
There are waste minimization 5
requirements in the 1984 Act as well.
6 In order to get around the presumption that land 7
disposal is to be prohibited, the protection standard for 8
disposal method is that it may not be determined to be 9
protective for hazardous waste, other than a waste that meets 10 treatment requirements, which I will talk about momentarily.
11 It may not be determined to be protective unless 12 upon application by an interested person, it has been 13 demonstrated to the administrator, to a reasonable degree of 14 certainty, that there will be no migration of hazardous 15 constituents from the disposal unit or the deep well injection 16 zone for as long as the waste remains hazardous.
17 EPA, as we understand it, is interpreting this 18 requirement to apply only to a narrow set of circumstances 19 under which someone who wants to dispose of a waste that has 20 been banned from land disposal, wants to dispose of it without 21 treatment, so that this stringent test would apply only, as 22 EPA interprets the law, to situations where owner / operator of 23 a disposal site wants to dispose of a prohibited waste by land 24 and he wants to do it without treating it.
Then he has to 25 demonstrate there will be no migration for as long as the
37 1
waste remains hazardous.
2 CHAIRMAN PALLADINO:
Can that be done?
3 MR. MacDOUGALL:
This is a matter of some dispute.
l 4
CHAIRMAN PALLADINO:
I would expect it to be.
5 MR. MacDOUGALL:
In one of the attachments, I think 6
it is attachment five to the Commission paper, we cite a 7
letter from a number of the principal authors of the 1984 8
amendments, who take issue with EPA's interpretation on this
- f 9
score.
So there is some uncertainty associated with how 10 stringent this standard really is and the scope of its 11 application.
12 MR. STELLO:
I think the Chairman's question deals j
s 13 with is there a belief that no migration in an absolute sense j
14 is achievable.
I think the answer has to be no.
l 15 MR. MacDOUGALL:
No, and EPA is forthright about 16 that.
17 MR. STELLO:
In all likelihood, I just don't think 18 you could do it.
They made a law that says that is required, 19 but I don't know that you are going to be able to find the 20 technical knowledge to make it --
21 CHAIRMAN PALLADINO:
Somewhere in discussions on I
{
I 22 this subject,
]
I thought I had gotten a statement that they did 23 not have a no-migration standard at EPA.
I guess they do.
24 MR. MacDOUGALL:
That's what I was trying to -- I 25 mean they interpret this no-migration requirement to apply
.l
38 1
only to a narrow set of circumstances.
EPA has been fairly 2
explicit that they cannot guarantee there will be no failure 3
of the liners and no leakage.
4 CHAIRMAN PALLADINO:
Is that saying there is no land 5
disposal?
If I go to the linit, this tells me if you can't i
6 guarantee there is no migration, then this kills land burial 7
of hazardous waste.
i 8
MR. STELLO:
I think that is unfair to take 9
literally.
10 CHAIRMAN PALLADINO:- Tha$ is'a pretty severe 11 observation.
12 COMMISSIONER ASSELSTINE:
Is that consistent with f.
13 EPA's interpretation of the statute?
14 MR. MacDOUGALL:
No, it is not.
l i
15 COMMISSIO'NER ASSELSTINE:
The answer is it's not.
4 16 MR. MacDOUGALL:
I think the bottom line --
17 COMMISSIONER ASSELSTINE:
I think the way you I
18 interpret the statute provides some leeway to meet that i
19 statutory standard, and maybe you can explain what --
20 CHAIRMAN PALLADINO:
Explain the leeway.
So far my 21 impression is there is no leeway.
i 22 COMMISSIONER ASSELSTINE:
What is the leeway?
j 23 MR. MacDOUGALL:
If you would like to shed some 24 light on this, Jack. ' It would probably be better if EPA could 25 explain it, itself.
1 v'
n
39 1-CHAIRMAN PALLADINO:
All right.
You may either use 2
the mike or join us at the table, and identify yourself for 3
the record, if you would, please.
4 MR. LEEMAN:
My name is John Lehman.
I am the 5
Director of the Waste Management,and Economics Division, 6
Office of Solid Waste, EPA.
7 There is some confusion here.
I have been listening 8
to the discussion, and it is understandable.
Maybe I can try 9
to clarify some of these points for you.
10 The 1984 amendments to RCRA constitute a major 11 policy shift or national policy for hazardous waste disposal.
12 The clear indication from the intent of Congress'was they 13 wanted to direct hazardous waste towards treatment, towards 14 recycling, towards waste minimization, as opposed to 15 disposal.
And so they wrote some pretty tough language in i
16 here which you have been debating, about what kind of a test 17 you have to meet, if you want to put waste into the ground 18 without treating it at all.
That's the point.
This 19 no-migration standard would apply if you did no pre-treatment 20 whatsoever.
?
21 CHAIRMAN PALLADINO:
When and only if you did no 22 pre-treatment.
i 1
23 MR. LEHMAN:
That's correct.
24 COMMISSIONER BERNTHAL:
What is pre-treatment?
25 MR. MacDOUGALL:
That is the next bullet,
s 40 e
O 1
MR. LEHMAN:- To get into that, one of the questions 2
you asked. earlier was what are the alternatives to disposal 3
and incineration was discussed and waste recovery, energy
~
4 recovery,..or material recovery was mentioned.
I should also 5
point out there are many other alternative treatment 6
possibilities in terms of chemical treatment, bi'ological 7
treatment, waste stabilization techniques, all sorts of other 8
possibilities that would fall within this pre-treatment 9
category.
7.,
10 So what we,are really talking about here is that 11 Congress wanted to impose a pre-treatment requirement 12 basically on hazardous wastes before allowing it to go into
+
13 the ground.
.s s CoMMISSIONbRASSELSTINE:
After you do the 14 3 15 pre-treatment, are you still left in some instances with 16 hazardous waste, after the pre-treatment?
~
17 MR. LEHMANt Yes; you are.
_ 18 COMMISSIONER ASSELSTINE:
To what extent can you v
19 dispose of that in lpnd disposal and how do.you then int rpret r
sm 20 the no-nigr:stion pclicy fer what is lef t over after you do 21 ieverything you can on pre-treatment?
22 MR. LEHMAN:
The prc-treatinent is tied to a concept s
4 23 c eled best demonstrated available technology, BDAT.
The
.m s
s 24 concept being if you apply the'best available technology to Ehis material and it.is still hazardousf then you can go ahead 25 s4.
b
- (
>~
y
- S
41
~
1 and put it into the ground and the no-migration standard does 2
not apply in that case.
3 COMMISSIONER ASSELSTINE:
In other words, you do the 4
best you can, based upon existing technology, and what is left 5
over then doesn't have to meet the no-migration standard?
6 MR. LEHMAN:
That is correct.
7 MR. MacDOUGALL:
It does, however, in general, 8
unless an applicant can demonstrate otherwise, it would have 9
to go into a facility with two liners and a leachate 10 collection system above the first liner and between --
11 MR. LEHMAN:
May I comment on that, too?
In other 12 words, the 1984 amendments have various levels, if you will, 13 of protections built into them, the first being the land ban.
14 We refer to this provision as the land ban provision.
But l
15 there are others.
The minimum technology requirements is what 16 was being referred to here, where there is a requirement that 17
-- and I might point out this applies to new facilities only, 18 not to existing ones -- that new facilities would have to be 19 built with double liner systems, and this applies to landfills 20 and surface impoundment, they would have to be built with 21 double liner systems and a leak detection system between 22 the two liners and a leachate collection system on top of the 23 liners in the case of landfills.
24 These are sort of all in a way kind of redundant 25 provisions.
In other words, the land disposal provision
42 1
presumably keeps out of the ground, things that are seriously 2
hazardous, if you will.
The next provision is that those that 3
pass through that filter, if you will, will then be dealt with 4
under a more stringent te;bnological requifement.
5 There are additional requirements beyond those that 6
call for us to put forward nav location standards, and 1 7
presume you will get t6 that later on, and lekk detection 8
standards, and so forth.
9 So there are 6 Phole serie.c of sort of redundant 10 provisions in the 1904 ame:Enents, 11 COMMISSICNER ASSELSTINE:
If we were to take the 12 approach of rsquiring right nov pre-treatment based upon the 13 bast ava11chle technology, co'spled with the design of a 14 fccility with angittered tentures to prcvide for these 3ayers 15 of protection ~~ liners, leak detection systems, systems to 16 recover the leaking, nhatever -- would we be on safo ground in 17 terms of whatever EPA night de under the RC2A regulations?
18 MR. LEHMAN:
I think that wpuid certainly be in the 19 spirit'of what the 184 atendments were all about.
We haven't 20 completed developing all of our regulations that were called 21 f or by the ' 84 amendments, but that is certainly in the 22 direction we arp headed, yes.
23 COMMISSIONER ASSELSTIME:
Is it possible at this point to define what the elements would be in a sufficiently 24 sound and defensite kind of approach, so we could have a high 25 9
w
~.
43 I
degree of assurance that when EPA finally got around to 2
developing the RCRA regulations, we wouldn't be caught short 3
and the states wouldn't be caught short in the low level waste 4
facilities?
Can we anticipate what might come out of it 5
enough and build in enough in the, designs in these facilities 6
that will be coming along in the next few years, so that in 7
essence the uncertainty would be eliminated?
3 MR. LEHMAN:
I am not sure you can eliminate it 9
altogether.
You can certainly reduce it by a considerable 10 degree.
We have no assurances, though, which way our 11 regulations are going to turn out later on.
We have put out 12 technical guidance documents which give our bect tiechnical 13 thinking on how these provisions should be interpreted.
14 CHAIRMAN PALLADINO:
I didn't understand your answer 15 in view of the constraints I think Commissioner Asselstine put 16 on there.
He says you do the best job of treating, and you 17 require the double liners and --
18 CCMMISSIONER ASSELSTINE:
Or maybe even an 19 engineered facili?,y.
20 CHAIRMAN PALLADINO:
Whatever.
And now you say you 21 still can't tell whether the no-migration standard would be 22 applied?
23 MR. LIHMAN:
No, I didn't imply that.
24 CHAIRMAN PALLADINO:
That's what I interpreted you 25 to have said.
44 1
MR. LEHMAN:
What I tried to say was I can't o
2 guarantee you in advance what EPA regulations are going to 3
say.
If you did all those things now, you would certainly be i
j 4
acting in the spirit of where I think we are going.
I can't 5
say they would be absolutely 100 percent in compliance.
6 COMMISSIONER BERNTHAL:
Would somebody explain to'me 7
why a polychlorinated biphenol, or whatever it might be, that 8
I don't know how to treat, don't know how to pre-treat safely i
9 and that may or may not be true, that is not the point --
10 is okay to put in the ground with the no-migration standard, I 11 guess, would apply there, but that something that I think I 12 know how to pre-treat, I can put into the ground, but then the i
13 no-migration standard does not apply.
14 I am baffled by the logic.
I realize it may have 15 been Congress' logic.
I mean how do you live with that?
It 16 seems to me the issue should be whether a standard is sensible 17 and in fact, a no-migration standard, whether pre-treated or 18 not, simply can't be met.
Nobody can guarantee no migration.
19 How do you deal with that?
I guess how do we deal 3
4 20 with that?
21 CHAIRMAN PALLADINO:
New are we going to get into 1
22 this, and I think we may need to, for the purposes of mixed 23 waste.
But try it one more time.
This has been helpful.
I 24 didn't understand all this.
25 MR. LEHMAN:
Let me just try to respond to some of
-,..e.-
,.,.-.e,.
e
,, - - ~. -,.,, -,
45 1
that.
The pre-treatment standard is in the statute.
In other 2
words, if you are not able to find any pre-treatment system 3
that seems to meet the standard, that still does not get you 4
out of the ban.
In other words, the material then, in the 5
ultimate, if you follow it all the way back, there would be a 6
provision that would lead you to a decision to stop producing 7
the waste.
If you can't find an adequate pre-treatment method 8
and you can't show that it won't migrate, then the only 9
alternative is to stop producing it.
10 It is not as if you have a double standard here.
11 COMMISSIONER BERNh"tL:
You can never show that it 12 won't migrate.
It is impossible.
13 MR. LEHMAN:
Well,.we have been trying to think of 14 some situations where you might be able to make that showing.
15 COMMISSIONER BERNTHAL:
In principle, it seems to me 16 it's impossible.
17 COMMISSIONER ASSELSTINE:
Is there a reasonableness 2
18 test that applies to that?
19 MR. LEEMAN:
I think you may be thinking -- there's 20 more than one.
You have to read the entire statement.
21 You can't read it just to say no-migration.
You have to say 22 no-migration for as long as the waste remains hazardous.
23 There are some hazardous wastes that degrade in the soil, for 24 example.
25 COMMISSIONER ASSELSTINE:
So if you can bottle it up
46 1
for a period of time, then you are okay.
2 MR. LEHMAN:
You may have some situations where some 3
hazardous wastes may not migrate as long as it remains 4
hazardous.
If you are talking in terms of inorganic material 5
that does not degrade, then you have a forever kind of 6
situation.
7 CHAIRMAN PALLADINO:
Let me suggest that we try to 8
go back to the mixed waste.
9 But that was helpful.
l 10 (Laughter.]
11 MR. STELLO:
We are trying to make everybody 12 understand this is not an easy question.
13 CHAIRMAN PALLADINO:
That's right.
14 MR. STELLO:
I think it is becoming clear that it r
15 is not easy, but it is important to deal with it.
You are 16 raising a very important point.
17 The uncertainty that you feel, sitting here with the 18 Commission, just imagine if you were in a state somewhere and 19 you had to make some decisions, with the schedules that 20 they've got.
It's not doable.
21 COMMISSIONER ASSELSTINE:
Well, that gets back to my 22 question.
I don't want to prolong this unduly, but you know i
23 the problem we have.
The problem is the Congress has said we 24 want these facilities in operation within a certain period of l
25 time.
We're putting pressure on the states now to get busy,
47
=
1 j
1 to get these facilities designed, get their license 2
applications in so we can make decisions on them, so that we 3
can meet the schedule that we -- having missed one whole set 4
of schedules, now the Congress says here's the new set of 5
schedules and by golly we mean for these really to be met.
6 MR. DAVIS:
Particularly with the penality aspect.
7 COMMISSIONER ASSELSTINE:
That's right.
And I think 8
the key question is if you, one, want to try and work within 9
this system the way it exists now, is it possible -- with a 10 high degree of assurance of success -- to be able to come up 11 with something, either in terms of pretreatment approaches and 12 in terms of additional protections on migration, such that we i
l 13 could make our decisions in a way that we have assurance it 14 will withstand the test of time, j
15 MR. DAVIS:
If I may interject, this is one of the 16 things that EPA and NRC have recognized as a reality with 17 which we have to contend, although we say that legislation may I-18 solve this problem.
Then again, it may not.
But we still i
19 have a dual jurisdiction regime right now.
That dual i
20 jurisdiction regime, even if Congress decides to change 21 regulation, may extend beyond the
' 88 deadline.
22 So, consequently, we have been working with EPA, or l
23 trying to sort out with EPA, how can dual. jurisdiction be 24 done with the greatest efficiency, and to come to some 25 conclusion, some statement we can make between us which
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m.
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r,
,,m.
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.,....-%-y-
,--w-.
, ~.,,,
- +.,.
48 1
would give a degree of certainty so that the states can 2
proceed, recognizing the dual jurisdiction may continue.
3 COMMISSIONER ASSELSTINE:
I think the threshold 4
question, though, is can this system that we now have, with 5
this overlap, can it be made to work?
If it can't, then that 6
raises a whole new set of options, none of which I find 7
terribly palatable, nor do I see any of them that have a high 8
degree of assurance of success either.
But I think the 9
threshold question is can we make this thing work.
10 If we can't, then we've got to consider those 11 options.
12 MR. DAVIS:
And I don't think we have really sorted 13 that out yet.
What we have been trying to do is identify, as 14 I said in the opening statement, to try to pinpoint 15 inconsistencies that cannot be solved and then bring those 16 back and say this simply -- with both agencies meeting their 17 law -- this simply cannot be worked out between the two 18 agencies, any kind of agraament.
19 CHAIRMAN PALLADINO:
You haven't reached that point 20 yet.
21 COMMISSIONER ASSELSTINE:
And I was going to say, I 22 don't want to put you on the spot, but I really do want to put 23 you on the spot, to see if there's a way that we can get a 24 decision on that very question before too long.
I think that 25 is really the gut issue.
49 1
CHAIRHAN PALLADINO:
Let's try to go back to the 1
mixed waste for a moment.
3 MR. MacDOUGALL:
This brings us to the problem chart 4
which we have discussed for the last ten minutes.
We should 5
make it clear that the two problems that are laid out in this 6
chart are the problems that are apparent to us now, based on 7
our understanding of the law and EPA's rules.
8 But as we said in the commission paper, the schedule 9
for EPA implementation of the 1984 amendments looks to be 10 inconsistent with the schedule for state development of new 11 public waste disposal sites, and when we say inconsistent, in 12 both of these inconsistencies, we're talking about a situation 13 where compliance with one set of requirements at the very 14 least heightens the risk of noncompliance with the other set 15 of requirements.
16 So while both sets of rules have their differences, 17 and they're numerous and hopefully not intractable, the 18 inconsistencies are the things that we're trying to focus on 19 now.
20 COMMISSIONER BERNTHAL:
The problem really goes to 21 being mutually exclusive in some cases, does it not?
And 22 again, on the one hand, I am worried about what appear to be 23 technical flaws, perhaps, in the legislation, but how in the 24 world do you escape the legal problems if we've got two sets
)
25 of regulations on the books and we're looking at a drop dead
50 1
date of
'88, I guess.
i 2
CHAIRMAN PALLADINO:
'88 for what?
a 3
MR. MacDOUGALL:
I just wanted to point out that 4
this inconsistency in the timing of the EPA's schedule for 5
implementing the amendments and the Low Level Waste Policy Act 6
milestones for new site development is not just a matter of --
7 our concern is not just a matter of intergovernmental 8
generosity and it's not an academic question to us.
9 There are health and safety impacts, we believe, 10 that will be associated with the states missing the milestones 11 and they would include possibly added pressure on existing l
12 storage capacity, possibly the need for repackaging, both of i
l 13 which are inspection and enforcement kinds of problems.
An 14 increase in our caseload of license applications for i
15 alternatives to disposal, for example, onsite and ultimately i
16 we may be faced with an emergency access petition for us to --
17 CHAIRMAN PALLADINO:
Before you turn the page, could 18 you give me a sense of the extent of this first one on the i
]
19 schedule matter?
When do the states have to have their --
20 MR. MacDOUGALL:
That's on the next chart.
4 21 MR. BROWNING:
January '88.
They have to have their j
22 siting plans in by January of
'88.
But in reality, they i
23 should be doing their siting work right now in order to meet j
24 the deadline.
i 25 COMMISSIONER BERNTHAL:
Where's the lawyer around
51 1
here?
What do you do if you've got two sets of regulations on 2
the books that are mutually exclusive?
3 CHAIRMAN PALLADINO:
You go to court.
4 COMMISSIONER ASSELSTINE:
The question is, are they 5
going to be mutually exclusive.
6 COMMISSIONER BERNTHAL:
I thought it was 7
self-evident that -- how do you make them not mutually 8
exclusive unless you revise the regulations in a manner that's 9
faster than a speeding bullet?
And we'ra not used to doing 10 that around here.
11 MR. DAVIS:
One of the things, with regard to the 12 first one that commissioner Asselstine already mentioned, and 13 we had already been working with EPA on, is there some 14 statement that EPA can make with regard to our siting 15 guidelines which are axisting, which would say that there is 16 relatively high assurance that if you meet the NRC guidelines 17 they will not be in conflict of whatever guidelines EPA may be 18 developing, which would give some level of assurance, I think, 19 which could permit these steps to proceed.
Without a 20 guarantee.
You can't guarantee.
21 MR. LEHMAN:
I wanted to mention, if I might, that 22 we are working,'not only with the NRC on this issue, but also 23 with the Department of Energy and we are attempting to put 24 forward a proposed rule that would change the RCRA rules in 25 two instances, one where you have a national security
i 52 1
situation -- that's mainly wit DOE -- and one where you have i
2 radiological properties of the waste that are inconsistent 3
with the application of the RCRA rules, which in truth 4
were developed without radiation properties being considered.
5 Where the radiological properties of the waste are 6
inconsistent, if you will, with the intent of the regulation, 7
this proposal would allow variances to the RCRA rule on a 8
case-by-case basis, by the local permitting authority, to be 9
made where it can be shown that it would be an increase in 10 risk if the RCRA rules were applied to the radiation 11 situation.
12 COMMISSIONER ASSELSTINE:
That doesn't help all that i
13 much, though, does it?
I mean, isn't it a situation in which i
14 you have, in the mixed waste area, what may be sufficient 15 to satisfy our regulations as they exist right now, shallow 16 land burial, might not be sufficient to satisfy the RCRA 17 regulations for the hazardous constituents of the mixed waste?
18 I'm not sure it's a question of increasing the risk 19 by complying with the RCRA standard, is it?
20 MR. STELLO:
It could be.
21 MR. LEHMAN:
In some cases, it could be, yes.
22 COMMISSIONER ASSELSTINE:
Okay.
23 MR. STELLO:
If you have to pretreatment with some 24 contaminated material, you could be open generating an awful 25 lot.
i l
53 1
COMMISSIONER ASSELSTINE:
Okay.
2 MR. STELLO:
I think Commissioner Bernthal asked a l
3 question -- I guess I feel like you do, that there are two i
4 standards and they are inconsistent and incompatible.
If your 5
final siting criteria are, in fact, not going to be out until 6
3/88, I don't know how the states are going to have their 1
7 siting plans by 1/1/88.
They can't do the one without the 8
other.
They need to know what the siting criteria are and 9
they aren't going to have it.
10 And I think it is a question that the lawyers ought j
11 to answer.
I don't see any other alternative than what the 12 Chairman said, you have to go to court.
13 MR. MALSCH:
I assume it's not feasible to move 1
14 forward with the Low Level Waste Policy Act by providing only
{
15 for storage of radioactive materials and allowing to take care l
16 of mixed waste at some future date.
Most of the stuff is i'
17 mixed?
i 18 COMMISSIONER ASSELSTINE:
No.
A small quantity.
3 19 percent is mixed.
I 20 COMMISSIONER BERNTHAL:
It shouldn't matter.
t i
21 MR. MALSCH:
Separate it out.
I guess that's my l
22 question, is it possible to separate out the mixed waste?
4 l
23 MR. BROWNING:
That is in one of our i
24 recommendations, to put the timetable for the mixed waste 25 population on a different time table track.
l
54 1
COMMISSIONER ASSELSTINE:
In other words, separate 2
it out and deal with that later.
3 MR. MacDOUGALL:
So that the rest of the wastes
]
i 4
aren't held hostage to the small --
1 5
MR. BROWNING:
There's still a question as to how 6
separable it is.
The 3 percent volume is based on the i
7 survey, and as I indicated when we went and sampled on the 8
sites, you can see the solvents, those solvents may be coming a
9 from the 70 percent of the waste that's the class A waste, but
]
l 10 a small amount in each drum, but in the aggregate, it's enough l
11 to start showing up in the groundwater.
- 12 COMMISSIONER BERNTHAL:
I'll bet that every low
?
j 13 level wasta site in this country, somewhere, contains --
]
14 what's the EPA definition -
"any mixture of hazardous wasta 15 with other material that is considered a hazardous waste if 16 the mixture contains a listed hazardous substance or exhibits 17 hazardous characteristics under EPA specified tests."
18 And surely every low level waste burial site that we 19 have contains listed EPA substances.
It just has to be.
20 MR. MacDOUGALL:
Degreasing agents, for example, 21 that sort of stuff.
a 22 COMMISSIONER BERNTHAL:
Chalating agents, j.
decontamination materials.
23 24 MR. STELLO:
All you need is a clean-up rag with a i
i 25 solvent on it in a drum.
i
55 I
1 COMMISSIONER ASSELSTINE:
If you can't separate it, 4
2 then that one alternative that the staff had identified 1
3 doesn't make any sense.
4 MR. BROWNING:
But then you get into the treatment 5
business.
If, in fact, we had a commercial incinerator that 6
would accept waste from a lot of sources, we'd eliminate a i
7 large percentage of at least what we perceive to be the-source 8
of the things we're seeing at the disposal sites.
j 9
MR. DAVIS:
But here again, you know the difficulty j
10 we have.
We're trying to license the incinerator.
Everything i
11 is different.
12 MR. STELLO:
But getting back to the point, there is 13 an incompatibility with the states, in terms of -- and I keep 14 trying to put myself in a position, for a moment, looking at the decisions they're trying to make and what assurances they 15
)
16 can have as they move forward.
And I think I view it as a l
17 significant question that they've got to have some kind of an 4
18 answer or assurance before they're going to be willing to move l
19 forward.
I 20 Otherwise, I see it as creating a major problem.
i
,i 21 COMMISSIONER ASSELSTINE:
Is the focus of EPA's 22 effort on siting, or is it on design of things like either the l
23 facility itself or the pretreatment equipment or a combination 24 of the two, or is it all three mixed together?
f 25 MR. LEHMAN All of the above.
We have no choice.
r
56
~.
e 1
All of these are statutory requirements.
2 COMMISSIONER ASSELSTINE:
Do you have any sense at 3
all for whether the good siting provision in our regulations, f
4 which was really one of the major thrusts of our low level 5
waste, would pass muster?
Are there things that you had in 6
mind that you are considering?
I know it's tough to say this I
7 is going to pass or not, but at least in terms of areas that 1
8 you're exploring?
9 MR. DAVIS:
No, sir.
I think that's one of the i
10 things we really are examining right now and I don't think i
11 they're ready to commit, is part of the situation.
J 12 COMMISSIONER ASSELSTINE:
I know that would be our 13 answer, too.
We don't know what's going to be in the final j
14 regulations.
15 CHAIRMAN PALLADINO:
Congress must understand this j
16 dilemma that the states face.
Do they have any actions i
4 17 under way to try to clarify it or are they waiting for i
18 guidance?
19 MR. MacDOUGALL:
In the hearings so far, the basic 20 feeling we get is they don't really want to address 21 legislation.
They don't want to reopen any of the I
)
22 legislation.
They keep trying to get EPA and NRC to work it 23 out.
But the fundamental prcblem is that it's imbedded in the 24 legislation, not in our regulations or things that we have a 25 lot of flexibility on.
4
i j
57
~.
1 In the last Udall hearing, they did ask for all the 1
t j
2 hearing participants to propose legislation that they thought j
3 would fix the problem.
So I think -- although it wasn't too 4
4 direct, in terms of our testimony, of the request to us, we 5
feel that Congress is looking for somebody to prepose i
6 something.
And up until now, we haven't been able to propose 1
7 anything very specific.
8 CHAIRMAN PALLADINO:
Let me ask the question in a 9
different way.
When Commissioner Bernthal says what do you do 10 in a case like this and you say you go to court, is there some i
i 11 other way to -- if the law doesn't permit us to reach a i
12 resolution, if the Congress doesn't want to change the law, is 13 there some other way -- like going to court -- that can be i
14 handled?
15 MR. MALSCH:
I don't know.
It's conceivable that i
j 16 you might ask a court to provide for some equitable relaxation j
17 of the deadlines.
It's something we could look into, if we r
l 18 came up to that situation.
h 19 CHAIRMAN PALLADINO:
If it came down to --
i 1
]
20 MR. MALSCH:
They've done that for EPA, but we'd i
21 have to look at that to see whether it's even feasible.
/
22 CHAIRMAN PALLADINO:
You can't tolerate the 23 Congress not wanting to change the law, the law not allowing j
24 us to reach a resolution, and telling the states meet this ll j
25 deadline.
i i
I i
~.
58 1
MR. DAVIS:
I think there is a very active player in
.2 this Low Level Waste Policy Act amendments, beyond the federal l
3 players.
And those are the three states that have sites.
And i
4 regardless of what the law says, if they decide to shut down, i
5 they will shut them down.
I 6
COMMISSIONER ASSELSTINE:
That's right.
7 CHAIRMAN PALLADINO:
And then you will have a real 4
i 8
crisis.
But that wouldn't settle anything.
j 9
COMMISSIONER ASSELSTINE:
It solves their problem.
10 (Laughter.]
11 MR. DAVIS:
It will attract an awful lot of 12 attention, I suspect.
1 13 CHAIRMAN PALLADINO:
But I don't think that would 14 solve the problem, and I'm not sure that a hasty resolution i
15 under those conditions would be the best, j
16 MR. DAVIS:
No, but I believe it was that position l'
17 of the three host states that brought about the amendments.
1 1
d 18 COMMISSIONER ASSELSTINE:
No question about it.
19 COMMISSIONER BERNTHAL:
I note that in staff's 20 options paper -- or in staff's paper, the options they present j
21 us, the list of the cons far exceeds the list of the pros in 22 every way.
23 (Laughter.)
24 CHAIRMAN PALLADINO:
And even those for which you 25 recommend favorable action.
i e-
59 1
COMMISSIONER BERNTHAL:
Except in che case where you 1
2 propose legislation.
It seems to me the decision should be 3
clear.
4 CHAIRMAN PALLADINO:
Well, even there, I'm not quite 5
clear.
i 6
COMMISSIONER ASSELSTINE:
It's not clear to me those 7
things solve the problem.
8 CHAIRMAN PALLADINO:
For example, under one of the
)
9 recommendations, which I believe is 2-B(4), the cons say l
l 10 legally do you require significant additional NRC resources.
i 11 It does not by itself permit timely implementation of the 12 amendments act.
Additional rulemaking would be required.
13 None of them seems to give you, by itself, a j
14 clear cut way of dealing with the issue.
15 COMMISSIONER BERNTHAL:
It's not anybody's fault 16.
here at the table, but if you stand back and ask yourself 17 would this be a crisis and a problem if there were a single 18 agency that had all of the jurisdictional responsibilities of l
1 19 NRC and EPA?
The answer is no, there would not be a problem.
20 There may be some technical problems.
There may be technical 21 problems.
22 MR. DAVIS:
There would be a problem if that single j
23 agency still had to meet two laws.
I 24 COMMISSIONER BERNTHAL:
Then having made that 1
25 statement, I get back to the point that what we need to do is i
60 1
very clear.
There's got to be a change in the law.
2 CHAIRMAN PALLADINO:
That's right.
3 MR. DAVIS:
And that's what we recommend.
I'm not 4
sure if that will clarify it.
5 MR. MALSCH:
Is it possible to offer to EPA to move 6
forward with a limited set of RCRA regulations on an early 7
basis based on limited volumes or concentrations, just to 8
handle the mixed waste problem, leaving larger volumes, larger 9
hazards?
10 MR. STELLO:
I think we ought to ask EPA rather than l
11 their representative at the table.
I think that would be 12 making them a little bit too uncomfortable.
13 MR. MALSCH:
Well, I'm just quizzing whether there's 14 been any discussions along those lines.
15 MR. DAVIS:
We ought to put that in our agenda to 16 discuss with them.
I 17 MR. STELLO:
We certainly can ask and any other 18 ideas anybody.else would have, any alternative.
But I do 19 believe when it comes time to fish or cut bait, you're going 20 to have to get it resolved through legislation or we are going 21 to continue to muddle around and time runs out and we're going 22 to have a real problem on our hands.
And tnen those states 23 may close down those sites if they don't see resolution coming 24 forth.
25 CHAIRMAN PALLADINO:
I think in the remaining time 1
61 1
-- we've passed our allotted time, but I would like to extend 2
it long enough to have you review the recommendations.
What 3
are we skipping by skipping No. 8?
4 MR. BROWNING:
I think we've talked enough about 5
that.
6 MR. MacDOUGALL:
We'ra skipping the inconsistencies 7
between the RCRA statute and our rules and -- they've already 8
been fairly well ventilated.
9 CHAIRMAN PALLADINO:
If we have to go back, we'll go 10 back.
All right.
11 MR. MacDOUGALL:
Well, clearly, as this discussion 12 has amply demonstrated, none of the alternatives are without 13 drawbacks, and the Staff's choice of alternatives was based on 14 trying to maximize the Commission's flexibilities within the 15 constraints of the political reality that RCRA does apply and 16 that Congress probably won't do anything to make it go away.
17 CHAIRMAN PALLADINO:
So you aren't making the 18 assumption that Congress will probably not do anything?
19 MR. MacDOUGALL:
Congress will not exempt from RCRA 20
-- will not exempt licensed disposal from the requirements of 21 RCRA to deal with hazardous waste.
22 CHAIRMAN PALLADINO:
Excuse me.
I think we ought to 23 have more attention on this.
24 MR. MacDOUGALL:
We started from the premise that 25 RCRA does apply and that Congress is unlikely to make it go m
62 1
away.
That is, that they would be unlikely to exempt the 2
licensed disposal of low-level wastes from the requirements of 3
RCRA where those wastes have a hazardous constituent that 4
would otherwise be subject to RCRA.
5 CHAIRMAN PALLADINO:
So you're assuming they won't 6
change that part of the law.
7 MR. MacDOUGALL:
Yes.
Last summer when Congress 8
first started to deal with the mixed waste issue, there was an 9
amendment brought up in the Interior Committee that would have 10 done just that, that would have basically stated that only 11 NRC's rules need apply to the disposal of low-level wastes, 12 and that EPA's RCRA requirements would not apply.
And that 13 amendment never got to a vote even in the subcommittee, and we 14 took that as a bellwether certainly from Mr. Udall, who was 15 chairman of both that subcommittee and the full committee, 16 that the originating committees with jurisdiction weren't 27 going to accept that as a solution.
18 The recommendations that we do have here rest on a 19 number of assumptions:
that we can and should avoid dual 20 regulation; that the differences between our respective rules 21 will result in missing milestones; and that missing the 22 milestones may well result in health and safety impacts that 23 are not inconsequential; that Congress is willing to consider 24 legislative release, and also that the outcome of any 25 legislative process, if Congress is willing to consider it,
63 a
1 would, in fact, provide relief -- that is, the resolution 2
would be timely and it would be something that we could 3
implement.
4 Reasonable men and women can certainly differ on one 5
or all of those assumptions that we based our recommendations 6
on.
But we went forward with these recommendations, the first 7
of which was to maximize treatment under our existing rules 8
and seek additional authority to require -- to reduce the 9
volume and toxicity of the mixed wastes requiring licensed 10 disposal, if we needed it, and that is to comply with the RCRA 11 requirements and assure that there wouldn't be a violation of 12 RCRA groundwater protection requirements at a disposal site.
13 That would help us to reduce the magnitude of the 14 problem, assuming that there is technology available to treat 15 the stuff, to incinerate it or reduce its volume or toxicity.
16 The second recommendation was to seek a --
17 CHAIRMAN PALLADINO:
Stick on the first one for a 18 minute.
19 MR. MacDOUGALL:
Okay.
20 CHAIRMAN FALLADINO:
Maximize treatment under 21 existing NRC rules.
Seek additional statutory authority, if 22 necessary, to reduce volume.
23 Do we need that, and to reduce toxicity?
24 What I'm getting at is, if this is to maximize 25 treatment under existing NRC rules, why don't we just do it?
64
~.
1 MR. MacDOUGALL:
Well, we do intend to do that.
2 CHAIRMAN PALLADINO:
But will this really fix it up?
i 3
MR. MacDOUGALL:
Well, there's some question, I 4
think.
There is litigative risk in proceeding with our, you 5
know -- simply using our authority to require maximum 6
practicable treatment, when the objective of that treatment is 7
to meet the requirements of RCRA.
You know, some of these 8
treatment technologies may be fairly expensive, and we can't 9
assume that Licensees would make the judgment that it would be 10 better to have one regulatory agency and, you know, comply 11 with NRC's attempt to deal with the RCRA problem.
You know, 12 they may prefer to --
13 MR. BROWNING:
With legislation, we probably could 14 get things done quicker without a lot of argument.
That's the 15 bottom line.
We would still try the approach of, for example, 16 incineration.
We had a volume-reduction policy statement 17 several years back in which we concluded that we could not 18 require people to reduce volumes.
You know, if they wanted to 19 do it, we could certainly-facilitate the process, but there 20 was'nothing embedded in our laws or our regulations that could 21 require us to do it, and incineration being a case in point.
22 CHAIRMAN PALLADINO:
But if we did try to require 23 it --
24 MR. BROWNING:
If the law said, you do it, then we 25 could do it a lot more efficiently and effectively.
i
I 65 i
1 CHAIRMAN PALLADINO:
But if we passed regulations l
2 saying we require it, you're saying they'd challenge.
i j
3 MR. BROWNING:
I believe they would do the subject 4
of costs and --
i 5
MR. MacDOUGALL:
There's some outside chance.
j 6
MR. BROWNING:
-- and short-term occupational 1
j 7
radiation exposure at the risk of -- to protect the i
j 8
environment over the long-term.
And typically what we've j
9 tried to do is avoid real occupational radiation exposure, we 10 think, not compromising the long-term environmental thing.
l 1
l 11 But this would tend to emphasize the long-term environmental i
]
12 protection, even at the potential expense of short-term i
13 additional radiation exposure.
14 CHAIRMAN PALLADINO:
Okay.
Do you want to go to
}
}
15 No. 2?
16 MR. MacDOUGALL:
The second recommendation is to 17 seek an amendment to the Low-Level Radioactive Waste Policy 18 Amendments Act to establish a separate timetable for state 19 disposal of mixed waste.
The presumption here is that if you can require adequate treatment, the remaining wastes, to the i
20 i
i 21 extent they remain hazardous, could be stored for the time it 22 would take to work out a consistent regulatory regime under l
l 23 both RCRA and the Atomic Energy Act.
i l
24 The basic justification for our choice of this one i
25 was so that the mixed waste problem, which represents a 4
s k
66 1
smaller proportion of the total generation of mixed waste, I
2 that that wouldn't -- the resolution of those uncertainties 3
would not hold hostage progress, the states' progrcss, in 4
developing disposal capacity for the majority of the test of 5
the non-mixed, low-level wastes.
6 COMMISSIONER ASSELSTINE:
But that assumes that 7
there's a technically feasible way to separate out the mixed 8
wastes from the rest of the low-level waste.
9 MR. MacDOUGALL:
Yes.
There area certainly your 10 management practices that could be adopted, such that if --
11 for example, if you have rags, you have a rag that has a 12 listed solvent that you've used to clea'n up a piece of 13 contaminated equipment, that you put it in a separate barrel 14 and not throw it in with all of the other non-mixed i
15 radioactive wastes.
16 MR. DAVIS:
And it could be in concert also with the 17 first bullet.
18 MR. MacDOUGALL:
Yes.
It presumes that, at the very l
19 least, we'll be able to tighten down on our existing rules 20 requiring treatment to reduce the non-radiological risk.
21 CHAIRMAN PALLADINO:
But if these lists of chemical 22 hazards keep changing, you may be in compliance ~one day and 23 not another.
24 MR. MacDOUGALL:
That's right.
In one of the 25 earlier charts, that moving target problem is a problem.
~
67 1
That kind of brings us to the third recommendation, 2
seeking statutory authority for direct NRC administration of 3
RCRA under rules developed and/or adopted by NRC.
l 4
The idea here was to provide the most flexibility 5
for NRC to tailor its requirements for a best balance, where, 6
for example, you have a conflict between the need to minimize 7
radiation exposures and the need to protect the environment 8
over the long term from contaminated groundwater.
{
9 We have some idea of the kinds of amendments that we j
10 would want to have under this recommendation, but we've only 11 talked in a very preliminary way with some of the staff of OGC l
12 about those.
13 If you like, I can give you some feel for the basic 14 elements that direct NRC administration of RCRA might involve.
15 CHAIRMAN PALLADINO:
That might be interesting.
But 16 even if we did the three things you've suggested here, would i
17 we have resolved the problem, or given enough basis that EPA 13 and NRC can go about doing their thing?
19 MR. MacDOUGALL:
Well, nothing is certain.
20 CHAIRMAN PALLADINO:
Let's assume you met your 21 fondest expectations in these three areas.
l 22 MR. STELLO:
Well, the third one would clearly do 23 it.
If the Congress gave us the authority --
i f
24 CHAIRMAN PALLADINO:
Well, I'm just asking, because i
25 as I read the pros and cons, I wasn't sure when I was all
im 68
.~
1 through that even doing all three of them would give you the
,2 anpwer.
It did sound like the'last one would do it, but --
3 COM9ISSIONER ASSELSTINE:
And it depends upon how 4
fir yeu go on that last one in basically overturning the 5
fundamental policy judgment that the Congress made in RCRA and 6
how[likely that is --
7 MR. DAVIS:
Or being able to demonstrate that our 8
rules will end up with the same ultimate goal.
9 COMMISSIONER ASSELSTINEi Yes.
10 MR. DAVIS:
One of the things that we are beginning 11 to look at or thinking about looking at is.some long-term 12 modeling of the achievement of environmental protection under 13 the RCRA rules versus the' achievement of environmental 14 protection under our Part 61.
They may actually join
.15 somewhere down the road.
In fact, that's what we're 16 anticipating.
17 MR. MacDOUGALL:
To give you an example,
\\
18 Commissioner Asselstine, one, there is a provision in the '84 19 RCRA Amendments that e.nables EPA to approve alternatives to 20 the double liner and leachate collection system requirement, 21 and that provicion enables the Administrator to consider 22 factors that are also embedded in the kind of systems approach 23 that's in our Part 61 rule.
It enables'the Administrator to 24 consider not only the design of-.the facility, b'ut operating n
25' p.ractices and the characteristics of the site itself for T*
69 1
isolating the waste.
2 COMMISSIONER ASSELSTINE:
Okay.
3 MR. MacDOUGALL:
We think that that would give us 4
some additional flexibility to get around the double liner 5
requirement, particularly in the context of the states' rising 6
interest in developing alternatives to shallow land burial, 7
with the engineering.
8 MR. DAVIS:
But in developing this legislation, we, 9
of course, would try to work with EPA, so that both agencies 10 would support the legislation.
11 COMMISSIONER BERNTHAL:
Could I ask the question, 12 before we run out of time here, what EPA's comments might be 13 on the Stafi's recommendations.
t 14 MR. LEHMAN:
I can speak for myself, not for the 15 agency.
16 COMMISSIONER BERNTHAL:
Sure.
17 MR. LEEMAN:
Because we haven't cleared all this 18 through.
4 19 But on the first recommendation, we certainly 20 support that.
Anything that is done to reduce the volume and 21 toxicity of the mixed waste problem is a positive thing.
i 22 I should also point out, I think it was nentioned 23 earlier that in the 1984 Amendments to RCRA, there is a 24 statutory provision which requires waste minimization of the 25 hazardous portion, anyway, of the hazardous cleaical portion,
)
.,m.
.y w-P P--
F9
70 1
to the extent that is economically feasible to do so by the 2
generator.
And so there's a whole new program under the RCRA 3
side of the house for waste minimization.
4 The second iten, to the extent that this is 5
accomplished with the states and so forth seems to be 6
something that is somewhat between you and the states, in a 7
way.
EPA's interest in it is not that great.
8 I did want to comment, though, so that you have a 9
complete understanding of the situation, that if a material
't 10 that is both radicactive and a hazardous waste, chemical 11 waste, if that material is banned from land d$sposal by EPA 12 through the land ban program, it is not possible to stord that 13 material for long periods of time under the statute.
You have 14 to -- the only way you can store it is if you're storing it 15 for treatment, You can't store it for future disposal.
16 COMMISSIONER BERNTHAL:
Is there any chance that a 17 substantial fraction of what we now classify as low-level l
18 waste, I guess, may get caught up in your definitions or the 19 definition, whose ever it may be, of mixed waste?
20 MR. LEHMAN:
Well, I wanted to make a couple 21 comments on that.
22 We have been told by the three commercial low-level 23 waste sites that are operating now that they no longer take 24 mixed waste.
I mean, that is the statement that they have 25 made on a number of occasions to us.
71 4
1 So we're not sure what is happening out there, and 4
2 that is one of the things that I know Mr. Davis and my boss, i
3 Mr. Porter, have been discussing, is the possibility of a 4
joint investigation by EPA and NRC Staff to check that point
/
5 out.
6 CCMMISSIONER BERNTHAL:
You don't even know what 7
mixed waste is exactly, I take it.
Or what is mixed waste, to 8
put it differently?
4 9
MR. LEHMAN:
Well, presumably you folks know what it 10 is from the standpoint of the low-level radiation aspect.
11 COMMISSIONER BERNTRAL:
Right, but --
12 MR. LEEMAN:
And we know what it is with respect 13 to the hazardous chemical site, so when you put those two 14 together, presumably we have a pretty good idea of what we're 15 talking about.
16 The real issue gets, I think, more into the -- when 17 we start talking to DOE, and we get into the whole issue of 18 the definition of " byproduct" under the Atomic Energy Act.
19 I think with respect to the NRC Staff and our staff, 20 we have a pretty good understanding of how that term is to be 21 defined, even if DOE has a different view.
22 COMMISSIONER BERNTHAL:
So in your judgment, a 23 simple extension of the low-level -- whatever all that stuff 24 is -- the Low-Level Radioactive Waste Policy Act Amendments --
25 MR. LEHMAN:
I'm not trying to judge whether that i
-._...-~., _-
72 1
has some benefit.
It may have some benefit.
All I'm trying 2
to say is that in the interim while that is going on, I just 3
wanted to point out that you cannot --
4 CHAIRMAN PALLADINO:
You can't store it.
5 MR. LEHMAN:
You cannot store that material for long 6
periods of time.
You have to treat it during that period.
7 MR. MacDOUGALL:
We presumed that it would be 8
treated.
9 MR. LEHMAN:
Right.
10 CHAIRMAN PALLADINO:
What about the third one, your 11 position on the third?
12 MR. LEHMAN:
The third one, I believe, is certainly 13 an option that can be considered, if the Congress -- I agree 14 with Mr. Stello's statement that if Congress were to pass this 15 type of legislation, as outlined here, that would solve the, 16 quote, " problem."
17 CHAIRMAN PALLADINO:
But would EPA support it?
18 MR. LEHMAN:
I can't comment on that, really.
It 19 depends on -- I mean, this is a very general statement, and we 20 would have to see what the details of it were.
But I think 21 this would be a difficult kind of legislation.
22 CHAIRMAN PALLADINO:
That's what I think.
23 COMMISSIONER BERNTHAL:
I thought it might be.
24 COMMISSIONER ASSELSTINE:
It might even be difficult 25 for EPA to rupport.
73
~.
1 CHAIRMAN PALLADINO:
Well, go ahead.
2 MR. MacDOUGALL:
We're pretty much finished.
3 COMMISSIONER BERNTHAL:
Thank you.
We appreciate 4
it.
5 CHAIRMAN PALLADINO:
I thought you were going to 6
give us elements or something.
7 MR. MacDOUGALL:
Oh, okay.
8 CHAIRMAN PALLADINO:
What was it?
9 MR. DAVIS:
Some of the elements of the legislation.
10 CHAIRMAN PALLADINO:
Oh, I see.
Is the Commission 11 interested?
l 12 COMMISSIONER ASSELSTINE:
Sure, yes.
13 MR. MacDOUGALL:
We prepared some backup charts to 14 answer questions we expected that you might ask, and obviously 15 this was one of them.
16 If you could distribute the backup chart-, I think 17 it's on page 10 of our backup materials -
" Key Statutory 18 Authorities to be Considered for Direct Implementation of RCRA 19 for Mixed Waste."
20 COMMISSIONER ASSELSTINE:
Joe, while they're doing 21 that, I think it would be useful to get a little paper frca 22 the two legal offices on what our legal authority would be to 23 do the first bullet without legislation.
I guess I'm not 24 persuaded right off the bat that, since there's.a statute on 25 the books now that mandates that kind of effort, even though 4
.,-r
,_.,,-w----
74 1
it's RCRA, that we don't have some authority now to move ahead 2
and require those kinds of things without legislation.
3 It doesn't have to be now, but maybe just a little 4
paper from OGC and ELD that addresses that question.
5 CHAIRMAN PALLADINO:
Well, why don't we request it 6
right now, unless any of the Commissioners object.
7 COMMISSIONER ASSELSTINE:
Sure.
8 CHAIRMAN PALLADINO:
So it can be a part of the 9
record.
10 (Slide.]
11
- Mr. MacDOUGALL:
This is a quick look at the basic 12 provisions of the '84 amendments that might be desirable for 13 NRC to pick up.
And the first one, as you can see, is the 14 authority as needed to require mixed waste minimization and 15 treatment to -- basically to assure compliance with the ground 16 water protection requirements that are applicable to the 17 licensed disposal sites.
18
[ Slide.]
19 The second one would have to do with the -- I had 20 already mentioned that the authority to approve alternatives 21 to the double-liner and leachate collection system 22 requirements for new licensed disposal facilities and new 23 units, disposal units, that currently operate at sites.
24 COMMISSIONER ASSELSTINE:
And you say that EPA has 25 that authority now under the Act?
s
-w r-w
- '* * * ' ' " ' ' ' ' ' ' ' ' ' " ' ~
- * * ' ' ~ ' ' ' ' ' ~ ' ' ~ ~ ~ ' ' ' ' '
75 1
MR. MacDOUGALL:
Well, the Act -- yes, the Act 2
enables EPA to approve alternatives to the double-liner and 3
leachate collection system requirement.
4 (Slide.]
5 Third would be the authority to implement and 6
enforce the groundwater protection requirements that are 7
applicable to licensed disposal.
EPA has a number in -- I 8
think it's Sub-part F of their 40 C.F.R 264 Rule, they have a 9
number of groundwater protection standards that would come 10 into play after a facility has been permitted and is operating 11 and some leak is detected.
There are concentration limits 12 that are in that Rule now, and we would certainly want to pick 13 up those where they are applicable to our wastes, mixed 14 wastes.
And the other applicable authorities under the '84 hp amendments that have to do with groundwater monitoring and 16 corrective action and those sorts of things.
17
[ Slide.]
18 The fourth bullet has to do with authority to 19 apply applicable provisions for de-listing of wastes that have 20 been treated.
Those -- that situation, under the law, arises 21 only on a case-by-case and facility-by-facility basis.
That 22 is, we cannot generically de-list waste that has been treated 23 simply because it's met our treatment requirements.
An i
24 individual applicant would have to prove that the waste is no j
25 longer hazardous and doesn't have any of the characteristics
k 76 1
that would classify it as hazardous after it has met the 2
treatment requirements.
3 But, if we are going to have to get the authority 4
to require treatment, we figure we ought to be able to de-list 5
the waste if the treatment renders the waste innocuous.
6 And the fourth would be some authority to implement 7
applicable future revisions of EPA / RCRA regulations in a 8
manner that would not be inconsistent with our Atomic Energy 9
Act responsibilities.
And here, we are thinking -- you know, 10 we have yet to get down to cases on what such a mechanism 11 would look like, but the kinds of considerations that we have 12 in mind would be things like I already mentioned where you 13 need to minimize occupational exposures but you also need to 14 worry about the long-term protection of groundwater in the 15 environment.
4 16 And so there would have to be some mechanism for us 1
17 to pick up revisions of EPA's rules without, you know, too 18 much difficulty in the way of getting a by-your-leave or a 19 delegation from EPA.
20 CHAIRMAN PALLADINO:
Okay.
Thank you.
I want to i
21 ask one question.
What if we were to approve your 4
22 recommendations; what would be the next step, in general 23 terms, and would the next steps have significant resource 24 implications?
25 MR. STELLO:
Well, if it's legislation, as an
)
77 1
example, then clearly the legal' offices get out a --
2 CHAIRMAN PALLADINO:
Well, just tell me what the 3
next steps would be, the next couple of steps.
Development of 4
draft legislation?
5 MR. STELLO:
Well, if that's the one you choose, 6
clearly that's --
7 CHAIRMAN PALLADINO:
I'm assuming.
Let me say, my 8
assumption is the Commission approves your recommendation.
9 MR. STELLO:
Then, we go -- right.
Then, it would 10 be the draft legislation with the legal offices.
You give 11 them -- you know, tell them you have two or three days to get 12 the job done and, you know --
13
[ Laughter.]
14 MR. STELLO:
Of course, we would have the legal 15 office to tell Congress they've got a week to get on with it.
16
[ Laughter.]
17 COMMISSIONER BERNTHAL:
Well, actually I had a 18 non-facetious question about the level of awareness on the 19 Hill.
You have spoken about the inability to get the House, I 20 guess, to move on this.
21 Is there a job of education to be done here that the 22 Congress and their staff are not sufficiently aware that we 23 could be~ facing a locomotive coming down the tracks here in a 24 couple of years?
25 MR. DAVIS:
I think in all of our testimony we have
78 1
tried to point out what the problems may be, particularly with 2
regard to derailing the Amendments Act, the timetable.
3 CHAIRMAN PALLADINO:
Derailing the what?
4 MR. DAVIS:
Derailing the timetables on the 5
Amendments Act.
i 6
CHAIRMAN PALLADINO:
All right.
Any other questions 7
of a general nature?
8 COMMISSIONER ASSELSTINE:
Maybe two quick ones.
One 9
for EPA.
Marty raised earlier the possibility of perhaps an 10 acceleration of a portion of your RCRA regulations.
11 If you can't give us a comment today, maybe you 12 could give us one after today, after you think about it, and 13 talk with your management chain, about whether something like 14 that is feasible.
Would it be possible to focus on this i
15 particular aspect of the problem and move your regulations 16 forward somewhat in a manner that would be more consistent 17 with the timetable under the Act, particularly focusing on 18 the kinds of conditions that you see in the mixed wastes and 19 the kinds of concentrations that you see, and the possible 20 measures that might be put in place to -- both on the 21 treatment side and on the release side, migration side, to 22 deal with that problem.
23 MR. STELLO:
May I make a suggestion?
24 COMMISSIONER ASSELSTINE:
Yeah.
25 MR. STELLO:
Following up, going on further, maybe 4
l
,I
79 j
I 1
what we ought to do is quickly try to get Lee Thomas to focus 2
on which of these alternatives he prefers and why, and ask to 3
get some guidance back from him.
4 COMMISSIONER BERNTHAL:
That's a good idea.
5 MR. STELLO:
I think whatever we go over to the Hill 6
with, it would be nice to know which of them would go over 7
together or what arrangements might be.
8 COMMISSIONER ASSELSTINE:
That's right.
I agree.
9 MR. STELLO:
So I propose we take another step over 10 and try to meet with them and either formally or informally 11 get an answer.
12 COMMISSIONER ASSELSTINE:
Good.
I think that's an 13 excellent suggestion, and I would add into that the other 14 question that I raised earlier, and that is, is it possible on 15 an informal basis to reach some kind of a common understanding 16 between NRC and EPA that if we did certain things to upgrade 17 our low-level waste disposal requirements, both in terms of 18 requirements right now for reducing volume and pre-treatment, 19 and in terms of design improvements to the waste disposal, the 20 land disposal technology, is it possible to reach a common 21 understanding that would provide a high level of assurance i
22 that when EPA does come out with their standards what we would 23 have done would pass muster?
24 MR. DAVIS:
I think we have been working on that on 25 a Staff level.
i
~.
80 1
COMMISSIONER ASSELSTINE:
Okay.
It seems to me if 2
we could do that with that high degree of assurance, that that 3
would solve the problem without the need for legislation.
4 You do enough in advance and you pass muster, and 5
then you make it.
6 CHAIRMAN PALLADINO:
Well, but --
7 MR. STELLO:
If you were the governor of a state, 8
would you accept that assurance?
9 COMMISSIONER ASSELSTINE:
First, you know, most of 10 the states or many of the states, at least, aren't satisfied 11 with shallow-land disposal the way we have outlined it 12 anyway.
And they want to do more.
Many of the states are 13 talking about more engineered designed facilities to start 14 with.
So, the inclination seems to be in that direction 15 anyway.
16 And if it is possible to come up with a set of 17 additional elements that provide that kind of assurance, maybe 18 it's --
19 CHAIRMAN PALLADINO:
But, Jim, in discussions in 20 which I participated with Lee Thomas, the intention has been 21 very good.
The lawyers say:
Oh, eventually you can't do it.
22 Now, I'm not saying that there's not a way out, but 23 I think we do need to address what our legal options are in 24 some of these approaches.
25 COMMISSIONER BERNTHAL:
I agree.
Either I didn't
81 1
understand one of the major points to come out of this today, 2
which is entirely possible, or it was made pretty clear that 3
there are some elements in law at least that simply are 4
self-contradictory.
It sounds like it's impossible to meet 5
everything that Congress has put into law.
6 COMMISSIONER ASSELSTINE:
I don't think that's 7
right.
I mean, that's certainly not the impression I had in 8
terms of the flexibility the EPA has on the no-migration.
9 Am I wrong on that?
Is it possible to design a 10 system that would meet the requirements in RCRA for 11 pre-treating and containing this kind of material?
That's 12 really the key question.
13 If it's not possible, then you've got to go back to 14 Congress and say either we quit generating this stuff or 15 you've got to change RCRA.
16 MR. LEHMAN:
Well, if I may respond to that, we 4
17 might be mixing some apples and oranges here.
18 I think what Mr. Davis indicated earlier needs to be 19 done first, and that is, that we have to take a real hard look 20 in fairly good depth as to just where all these 21 inconsistencies lie and what might be able to be dona about th'em under existing statutory and regulatory authorities, and 22 23 then explore what can be done under regulatory authorities 24 under EPA.
25 I mentioned, we are already working on an amendment
82 1
to the RCRA rules which would provide some degree of 2
flexibility through our regulatory process and, you know, it 3
may be that we will resolve a series of those inconsistency 4
problems that way.
5 And then the next question gets to be, what happens 6
if you are then faced with some really hard inconsistencies 7
that cannot be dealt with other than legislation?
And at that 8
point, I think we need to get together and talk about it.
9 COMMISSIONER BERNTHAL:
It sounds to me like they 10 are fundamental definitions that simply -- by any reasonable I
11 reading of the statute -
Now, maybe a court would look at 12 it and say:
Well, you can't reasonably read both of these 13 statutes, and let you off the hook.
Well, I assume OGC will, 14 or somebody, ELD, will provide us some opinions.
15 COMMISSIONER ASSELSTINE:
John, do you have an 16 answer to that, though?
Can you say right now that there are 17 fundamental inconsistencies that simply can't be resolved 18 other than by legislation?
19 MR. DAVIS:
I will have to agree with what 20 Mr. Lehman said, that really my general impression is that 21 may be.
But, I really think we have got to get down and sort 22 out and identify them by pinpointing those.
23 I will say this, however, that the more we deal with 24 EPA now and the more they deal with us, I think we are
~
25 beginning to come to a higher mutual understanding of what the
4 83 l
1 requirements are.
Sometimes we will reach something that's a 4
2 very hard requirement by the reading of a logical man, azid 3
then we go over and talk to EPA and they don't quite read it 1
4 that way.
i j
5 And I think when we started out -- and the Chairman 6
is well aware of this -- we used the term "zero migration, i
7 zero release."
And, obviously that's not quite the way they 1
8 see it.
9 So, I think by some very active Staff interchange, 10 very prompt St:aff interchange, we can begin to pinpoint, are a
11 there really some ardas, which will probably be relatively 12 few, where if you abide by one law you can violate the other 13 law.
)
14 COMMISSIONER ASSELSTINE:
It seems to me that we I
]
15 have to know that first before we decide what options we want i
16 to pursue and also, Joe, I think even before we talk to Lee 17 Thomas.
18 COMMISSIONER PALLADINO:
Well, this is what I was 19 going to get at.
20 MR. OLMSTEAD:
Could I make a point before you get 21 into the legal issue too far?
i 22 CHAIRMAN PALLADINO:
I'm sorry.
You are going to 23 have to sit over here.
24 MR. OLMSTEAD:
Let me make a point before you go, l
25 because I've been spending the last year and a half going back L.
84 1
and forth to meetings with EPA.
2 Don't forget the technical issue, that the technical 3
staff for our agency doesn't want these packaged materials 4
collecting in a bunch of water.
In other words, there are 5
ways to meet both requirements legally that don't make a lot 6
of technical sense.
7 So, I think you've got to decide what you want to do 8
technically first before you ask the lawyers if there is an 9
inconsistency.
10 COMMISSIONER ASSELSTINE:
You are saying no 11 engineered facility for low-level waste makes any sense?
12 MR. OLMSTEAD:
I'm not saying that.
I want to hear 13 the technical people agree on how to handle both hazards 14 before I make the judgment that they legally can or can't do 15 it, because I can read the words consistently.
16 CHAIRMAN PALLADINO:
But why not also -- you 17 could approach it the other way and say:
Why can't we all get 18 together and straighten it out, then we have great flexibility 19 on the technical aspects?
20 MR. OLMSTEAD:
Okay.
But I would like to solve the 21 technical problem first.
22 MR. MacDOUGALL:
I think either way, if we want to 23 present a credible persuasive case for legislation to 24 Congress, we are going to have to work out --
25 COMMISSIONER ASSELSTINE:
No doubt about it.
85 1
CHAIRMAN PALLADINo:
Let me try a suggestion here.
2 I would like to urge the Commissioners to give this reasonable 3
prompt attention.
By that, I mean if you feel you know 4
enough, then vote, or give your comments.
5 But, perhaps more importantly is identify the 6
questions that we feel are necessary before we try to vote.
7 And I think Marty has agreed to undertake the one that you 8
proposed.
9 And maybe we ought to ask Marty and Bill Olmstead to 1
10 help us identify some of the technical questions or the legal i
l 11 questions we ought to be asking.
But if we don't identify the
]
12 questions that we need to answer before we can vote soon, we 13 will never get around to voting.
14 So, I'd urge continued attention for the next two 15 weeks in trying to identify the questions first, or voting.
16 COMMISSIONER ASSELSTINE:
I don't have any problem 17 with that, Joe, although I think for myself I have the same i
18 fundamental question that I think Rick has, which is, are 4
19 there fundamental inconsistencies between the two statutes 20 that simply cannot be resolved technically.
f 21 CHAIRMAN PALLADINO:
Well, now can we get an opinion 22 on that?
I 23 COMMISSIONER ASSELSTINE:
Until you~know that, I 24 don't see how the Commission could go to the Congress and 25 say:
We have to have legislation to solve this problem.
i i
.__, _, _, _.. - _, _ -. ~.,..
,,...,_.,,..,,.n.c, n.
86 1
COMMISSIONER BERNTHAL:
That's certainly true.
2 MR. BROWNING:
I might point out that Attachment 4 3
to the paper was our attempt to lay out what we thought the 4
differences were.
EPA now has the paper.
I think they need i
5 some time to digest it to see if we can reach agreement.
6 We are also aware that at the State of Washington, 7
specifically at the Hanford site, two state agencies, one of 8
whom has delegated authority from us and one of whom has 4
9 delegated authority from EPA, are attempting to do the same 10 thing.
And I think we need to get their perspective also, 11 because they are the ones that really have to bring these 12
- sites on the line.
13 MR. STELLO:
I think it's important that we get i
14 together with EPA and make sure that we all understand where 15 we are and what it is that we can jointly, together resolve.
j 16 If there are inconsistencies, we both want them resolved.
If 4
17 we need to change the law, we both want to do that.
18 COMMISSIONER ASSELSTINE:
I think it would be best 19 when Joe and Lee Thomas get together, or whomever, that at 20 least there is a common understanding at the staff level as 21 to, here are the technical issues, here are the i
22 inconsistencies, if there are any.
23 CHAIRMAN PALLADINO:
Let me understand, though.
If 24 we were to vote to support the Staff recommendations, would 25 then you suggest we go to EPA, or try to get that settled w-rew---
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before?
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MR. STELLO:
I was suggesting before we decide on a 3
course of action, let's make'sure that we know what we both 4
can support.
5 CHAIRMAN PALLADINO:
Well, this is why I started 6
with my opening question:
had this been discussed with EPA 7
and did they support it.
And I'm not clear that they do.
And i
8 I think having the Staff at least see what their staff thinks i
9 would be very helpful before we --
10 MR. DAVIS:
And we've been working on that.
I think 11 you've seen it is complex.
It is very frustrating to deal in 12 this area.
And we regret that we haven't been able to come to 13 an absolute conclusion on this in the time we've had, but it's 14 a complex issue.
15 But I will say this --
16 COMMISSIONER ASSELSTINE:
We will give you a couple 17 of weeks.
18 MR. DAVIS:
-- that the NRC Staff and the EPA Staff 19 have been working, I think, very effectively.
20 CHAIRMAN PALLADINO:
Okay.
Well, thank you very 21 much, gentlemen.
This has been very worthwhile.
22 We stand adjourned.
23 (Whereupon, the meeting was adjourned at 12:15 p.m.]
24 25
1 2
REPORTER'S CERTIFICATE 3
4 This is to certify that the attached events of a 5
meeting of the U.S.
Nuclear Regulatory Commission entitled:
6 7
TITLE OF MEETING:
Discussion of Policy Options on Mixed Oxide, Radi@
active, and Hazardous Low-Level Wastes (Public) 8 PLACE OF MEETING:
Washington, D.C.
9 DATE OF MEETING: Wednesday, May 21, 1986 10 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the Commission taken 13 stenographically by me, thereafter reduced to typewriting by 14 me or under the direction of the court reporting company, and 15 that the transcript is a true and accurate record of the 16 foregoing events.
17 18
- - - - - -pdf)
Gar t J. Walsh, 19 20 21 22 Ann Riley & Associates, Ltd.
23 24 25
RELEVANT AfPONYMS l
RESollRCE CONSERVATION M'P PTCOVERY ACT Of 1976 ( AN AMENDMEf T TO Tile FCl?A -
SOLID WASTE DISPOSAL ACT) AS AMENDfD DV Tilf 18A7APD0llS AND SOLID WASTE AMEN 0MENTS OF 1984.
CAA -
CLEAN AIR ACT Of 3070, A3 AMENOFD.
FEDERAL WATEP P0ll.tlT10N CONTROL AMENDMENTS ACT Of 1972, AS AMfNDED fly CWA -
Tile Cl. FAN WATER ACT OF 1977.
i CERCLA - COMPREllENSIVf FNVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT Of 1980.
SDVA -
SAff DRINKING WATER ACT Of 1974.
i 1
M. Weber, NMSS x74746 5/21/86
)
CAA Y*'lyyIn 's n
P TRANSPORTATION
^^
l STORAGE HCRA "a
CAA t_
i h
v HCRA RCRA RCRA lO g '*,
~
' g SDWA TREATMENT s
' % GENERATION l
CAA s
i CWA RCRA 3,
t-
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/
RCRA l
~ " -
sowA f
DISPOSAL EPA PROGRAMS AND LOW-LEVEL RADIOACTIVE WASTE i
l l
fl. Weber,TNSS 2
x74746
-5/21/86 l
t NRC STAFF WORKING DEFINIIlON OF MIXED WASTE LOW-LEVEL RADIOACTIVE WASTE LICENSED UNDER THE ATOMIC ENERGY ACT, THAT CONTAINS CONSTITUENTS THAT WOULD BY THEMSELVES BE O
AS AMENDED, CONSIDERED HAZARDOUS UNDER EPA *S RESOURCE CONSERVATION AND RECOVER ACT (RCRA) REGULATIONS.
D.
3 R. MACDOUGALL/NMSS X7-4439 5/21/86
4 BASIC LLEMENTS OF Tile 1976 RESOURCE CONSERVATION AND RECOVERY ACT OF (RCRA)
CONCERNING llAZARDOUS WASTES O
DEFINES IIAZARDOUS WASTE.
ESTABLISilES " CRADLE TO GRAVE" TRACKING SYSTEM.
O DEPENDS ON GENERATOR TO REPORT ifAZARDOUS WASTE.
O O
REGULATES GENERATOR, TRANSPORTER, AND OWNER OR OPERATOR OF TREATMENT, STORAGE, OR D I SPOS AL FAC I L 11 Y.
AUIllORI ZES DELEGAT ION OF REGULATORY AUTilORI TY TO O
QUALIFYING STATE AGENCIES.
l l
1 4
R.
MACDOUGALL/NMSS f
X7-4439 5/21/86
KEY POLICY ELEMENTS OF Tile ilAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 GENERATION OF llAZARDOUS WASTE TO BE " REDUCED OR ELIMINATED O
AS EXPEDITIOUSLY AS POSSIBLE."
LAND DISPOSAL PROHIBITED UNLESS EPA DETERMINES "lilE PROlllBIT ION O
TO PROTECT llUMAN llEALTil AND TifE i
IS NOT REQUIRED ENVIRONMENT FOR AS LONG AS THE WASTE REMAINS tlAZARDOUS "A METilOD OF LAND PROTECTION STANDARD FOR DISPOSAL METilOD:
O UNLESS DISPOSAL MAY NOT BE DETERMINED TO BE PROTECTIVE TifAT TilERE WILL BE NO MiGRAT1ON OF IT llAS BEEN DEMONSTRATED FOR AS LONG AS llAZARDOUS CONSTITUENTS FROM Tile DISPOSAL UNIT Tile WASTES REMAIN HAZARDOUS."
O PRETREATMENT REQUIREMENT:
EPA SHALL SPECIFY "TilOSE LEVELS OR IF ANY, WHICil SUBSTANTIALLY DIMINISH Tile j
METiiODS OF TREATMENT, TOXICITY OF Tile WASTE OR SUBSTANTI ALLY REDUCE Tile LIKELlHOOD OF i
SO TilAT TilREATS 10 MIGRATION OF llAZARDOUS CONSTITUENTS lluMAN llEALTil AND ENVIRONMENT ARE MINIMl ZED. "
1 5
R.
MACDOUGALL/NMSS X7-4439 S/21/86
-=
_ ~
o l
l i
1 l
Tile PROBLEM SCilEDUI.E FOR EPA IMPLEMENTATION OF 1984 RCRA AMENDMENTS IS INCONSISTEN I
O LLW DISPOSAL SITES UNDER WITil SCHEDULE FOR STATE DEVELOPMENT OF NEW 1985 (LLRWPAAj.
LOW-LEVEL RADIOACTIVE WASTE POLICY AMENDMENTS ACT OF INCONSISTENT RCRA AND EPA REGULATIONS FOR liAZARDOUS WASTE DISPOSAL ARE i
O WITil NRC REGULATIONS FOR LLW DISPOSAL.
6 4
R.
MACDOUGALL/NMSS 6
X7-4439 5/21/86
1HCONSISTENCIES BETWEEN RCRA SCHEDULES AND LLRWPAA MILESTONES O
SITING LLRWPAA: SELECT HOST STATE, DEVELOP DETAILED SITING PLAN BY 1/1/88.
FINAL SITING CRITERIA BY 3/88.
EPA SCilEDULE FOR RCRA AMENDMENTS:
IDENTIFICATION AND LISTING OF HAZARDOUS WASTE O
EPA STUDIES, RULE REVISIONS COULD RESULT IN ADDITIONAL WASTES TO BE REGULATED (E.G., WASTE OIL) 6 4
7 R.
MACDOUGALL/NMSS X7-4439 j
5/21/86
,~
~
v
?
~..
l INCONSISTENCIES BETWEEN RCRA AND NRC RULES FOR COMMERCIAL. DISPOSAL 1
WASTE MIGRATION OVERALL DESIGN PERFORMANCE REQUIREMENTS:
O 10 CFR PART 61:
DESIGN TO STAY WITillN DOSE LIMITS AT D80POSAL SITE BOUNDARY, MAINTAIN EFFLUENT RELEASES AS LOW AS REASONABLY ACHIEVABLE (ALARA}.
s DESIGN FOR NO MIGRATION FROM DISPOSAL UNIT FOR AS RCRA:
LONG AS THE WASTE REMAINS HAZARDOUS.
OVERALL DESIGN REQu!REMENTS:
WATER MANAGEMENT 0
10 CFR PART 61:
MINIMlZE CONTACT OF PERCOLATING OR STANDING WATER WITH WASTES AFTER DISPOSAL.
RCRA:
INSTALL DOUBLE LINERS, LEACHATE COLLECT. ION AND TREATMENT SYSTEM.
COULD RESULT IN WASTE CONTACT WITli STANDING OR PERCOLATING WATER.
s 6
I
/
m 8
R.
MACDOUGALL/NMSS X7-4439 i
5/21/86
9 NRC STAFF POLICY RECOMMENDATIONS SEEK ADDITIONAL MAXIM 12E TREATMENT UNDER EXISTING NRC RULES; IF NECESSARY TO REDUCE VOLUME AND TOXICITY O
STATUTORY AUTHORITY OF MIXED WASTES REQUIRING LICENSED LAND DISPOSAL.
SEEK LLRWPAA AMENDMENT TO ESTABLISit SEPARATE TIMETABLE FOR O
STATE DISPOSAL OF MIXED WASTES.
SEEK STATUTORY AUTHORITY FOR DIRECT NRC ADMINISTRATION OF RCRA O
UNDER RULES DEVELOl'ED AND/OR ADOPTED BY NRC.
I e
O t
b
+
0 R.
MACDOUGALL/NMSS f
X7-s,439 i
5/21/86
o E
l 9/35
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