ML20205D345

Discusses NRC Jurisdiction Over Handling,Treatment & Storage of Low Level Radwaste at Reactor Sites,Per 850807 Request. Conclusion Differs Re Disposal of Radwaste Generated by Operation of Reactor

ML20205D345
Person / Time
Issue date:	09/13/1985
From:	Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Harold Denton Office of Nuclear Reactor Regulation
References
GL-85-14, IEC-81-07, IEC-81-7, IEIN-83-05, IEIN-83-5, NUDOCS 8509240372
Download: ML20205D345 (4)

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. SEP 131985 .

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pse of f11' PPOPANCW. FOR: Herc1d R. Denton, Director . ,

Office of Nuclear Reactor Regulation i FRO *: Guy F. Cunningham, III Executive Legal Director it!? JECT: JL!RISDICTION OVER LOW LEVEL WASTE MANAGEMENT AT REACTOR SITES IN ACFEEMENT STATES ,

Is. pur menorar.curr. of August 7,1985, you requested DELD confirination of

, ycur understanding of NRC jurisdiction over the handling, treatment (including incineration) and storage of low level radioactive waste at r.uclear reactor sites. As stated in your memorandum, in Agreement States the NRC would l: exercise licensing and regulatory jurisdiction over the handling and storage of lot: level waste within the exclusion area of the reactor site. This '

ir. eludes both reactor generated waste and waste frein other sources. The

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latter sitt.rtion is covered in greater detail in Generic Letter 85-14. In rer-Agretar t States there is no jurisdictional. problem; the NRC licer.ses and reguletn all bandling, storage, and disposal of low level radioactive waste.

'- - Your eucrandur: also reouested an opinion on the licensing, in Agreement Statas, of low level waste disposel within the exclusion area. ,

l The three stetements are c'orrect. In Agreement States the NRC will license and regelate the handling and storage of low level waste in the exclusion area. When the waste is derived from offsite waste generefors NRC jurisdiction is based prisarily on 10 CFR 100.3(a) which requires the reactor licer.see to maintain an exclusion area in wH eh the licensee retains full I

- centrol over all activities in order to protect public health and safety from a postulated fissior, product release resulting from a hypothetical major i' accider.t. NFC Ifcensing authority is seen as essential to maintaining such licensee control. Thus, ur. der Generic Letter 85-14 any program sponsored by a state to fulfill its low level waste obligations pursuant to the Low Level Radioactive Vaste Folicy Act 4Public Law g6-573, 42 U.S.C. 2021b-2022d) by i stcrape of waste within the. exclusion area of a nuclear power reactor will be j subject to the licersing and regulatory jurisdiction of the NRC.

j In Agreement States the handling and storage at the reactor site of low level

. waste resulting from the operation of the reactor is reserved to the NPC pursuantto10CFR150.15(a)(1). It is reasonable to view the exclusion area as the reactor site for this purpose since it represents spatially the area of greatest and most insnediate public health and safety concern in the -

operation of'the reactor. See e.o. Southern Califorria Edison Company, (San

, Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1,NRC 353 (1975),AtAB-308,3NRC20(197f).

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, 2- SEP 131985 The conclosion differs, however, regarding the disposal of low level -

radioactive waste generated by the operation of the nuclear reactor. The onission of low level waste disposal in 10 CFR 150.15 as a function reserved .

to the Federal Government implies that it has been relinquish'ed to the Agreen,ent States. The Statement of Considerations accompanying Part 150 when it was promulgated clearly demonstrates that the Atomic Energy Comission censidered the question of Agreement State authority over the disposal of reactor low level waste and decided to relinquish the function, while retainino handling and storage.

'The Comission has taken into consideration the coments anil advice it has received in adopting the regulation set out

,e herein. The Comission has decided against blanket reservations of control over land burial of waste and over i the transfer of manufactured products. . ,

i However, as to land burial, the Comission finds, pursuant to f section 274c.(4), of the Act that because of the hazards or

- potential hazards thereof, high level atomic energy wastes ,

5 from the chemical processing of irradiated fuel elements

. . should not be disposed of without a license fromethe

- Comission. This finding is reflected in.l 150.15(a)(4).

Control over the handling and storage of waste at the site of a reactor including effluent discharge, will be retained by

! the Comission as part of the control of reactor operation. ,

The states will have control over land burial of low level wastes." (emphasis supplied). (27 FR 1351. February 14 1962).

Under Sectior 301(b) of the Energy Reorganization Act of 1974 the NRC is not at liberty to vary the clear meaning given to this regulation by the Atomic Energy Comission without a rulemaking proceeding, or by issuance of appropriate orders, pursuant to Section 274c. of the Atomic Energy Act, as amended. We note that Agreement State licensing of the disposal of reactor low level waste within the exclusion area is not inconsistent with the reouirement in 10 CFR 100.3(a) for licensee control of activities in the exclusion area. The issuance of a license by an Agreement State for disposal of reactor low level wastes in the exclusion area only establ.ishes the conditions under which the disposal may be made. It does not diminish either the licensee's decisional authority whether to undertake the activity, nor his control over its execution. Further, under well established rules of preemption if conditions in the State issued license for disposal conflict with the terms of the Federal operating license, then the latter will prevail. Accordingly, the legal advice previously given by this office on this matter stands. -

Your memorandum raises four additional concerns arising from the l

conclusion given above. First, although the regulatory structure may i M '

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,. j het appear to be the most efficient, licensing of, disposal by the Agreement states and of handling and storage by Nkt are not inconsistent. The two ~

goveru ental units are regulating different aspects of the waste generation and disposal process. Such divisions of responsibility are cannon -

ir, government. Second, IE Notice 83-05 is valid advice for reactors in ren-Agreen r.t States. It'is not, however, applicable in Agreement States with respect to disposal by lar.d burial. Third, the legal conclusion does not create the potential of each Agreement State deters.ining release levels

. at eact plant site. The lega1

• advice consistently given by this office is that relme levels related to the' handling and storage of the waste at the rea'etor site are establist.ed by NRC. Fcr example, Duke Power Company has been advised orly recently it.tt it is apprcpriate to use the detection levels in IE Circular El- C fer purpcse cf release cf waste from the site, but that the permission tur actual dispcsal of the waste must come from the state. ,

Fourtt, it is unnecessary fer decisions associated with decomissioning .

,, of reectors and release cf sites for unrestricted use to be complicated

- t) cur legal ccr.clusion. On the contrary, it can be seen as clarifying the level background against which those oe.cisions will be made and insuring

' consis+.ency witt other low-level waste cisposal decisions which will be made -

by tht !.tates. Aftn removal of all special nuclear material from the site

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and fixing the macMne 60 that it can never again be used in the production er utilizatier. of special nuclear seterial, there is a legal basis . ,

fcr Agreertent State regulation of the remaining byproduct radioactivity if tre MC takes the positior that leavir.g the radioactive structures on site in zou seie t.onfigurt. tion is the sethod of choice for disposal of the reamining ,

byrrce'uct material. On the. other hand, assuming a cortinued lesel viability for 1C CR 150.15(c)(1), a storage option would tend to preserve NRC

! jurisdiction. 1/ if continueo hRC jurisdiction is considered essential for all reattce decomissioning cases, then a Cosmission determination that the t.artrds of the waste require continued Comission licensing ano a rulemaking

,, under cettien 274c.(4) of the Atomic Energy Act amending 10 CFR 150.15 wnuld -

be eJvisable.

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, , i 6by H. Cunningham, II Executive Legal Directtr cc: John G. Li.vis, 0 W.Si -

Jerres M. Ta3 1 or, IE Wayne Kerr, OSP 1/ The following legal argument can be made that 10 CFR 150.15(a)(1) _

would have no legal significance in these circumstances. If there is no longer a reactor as defined in 10 CFR Part 50, there is no continuing Energy Act. basis Absentfor theNRC juridiction latter,10 CFR 150.15(a under Chafter (1) is of 10 no ef,fect. of the Atomic Likewise, absent a critical mass of special nuclear materic1, 10 CFR 150.10 provides rec jurisdictional base.

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