ML20206U117

Comments on DOE Proposed Rulemaking Interpreting Definition of Byproduct Matl

ML20206U117
Person / Time
Issue date:	01/13/1986
From:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
Shared Package
ML20206U111	List: ML20206U107 ML20206U117
References
FOIA-86-53, FOIA-86-54, FOIA-86-55, FOIA-86-A-160 SECY-86-011, SECY-86-011-01, SECY-86-11, SECY-86-11-1, NUDOCS 8610070314
Download: ML20206U117 (16)

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POLICY ISSUE

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(Information)

January 13, 1986 SECY-86-11 For:

The Commissioners From:

Victor Stello, Jr.

Acting Executive Director for Operations subject:

COMMENTS ON THE DEPARTMENT OF ENERGY'S PROPOSED RULEMAKING INTERPRETING THE DEFINITION OF BYPRODUCT MATERIAL

Purpose:

To inform the Commission of the staff's position on the proposed 00E rulemaking.

Background:

On November 1, 1985, the Department of Energy (00E) proposed a rule in the Federal Register to " clarify" the definition of the term " byproduct material" as defined in Section.11(e)(J) of the Atomic Energy Act. (Enclosure 1).

Staff brought this to the atte6 tion of the Commission in ~a memorandum dated November 13, 1985 (Enclosure 2).

The stated purpose of the rule is to clarify which of the radioactive wastes owned or produced by DOE require regulation under provisions of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, and which radioactive wastes DOE can continue to regulate exclusively under the Atomic Energy Act of 1954 (AEA), as amended.

Some DOE radioactive wastes are mixed with substances

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considered hazardous under RCRA.

Section 1004 of RCRA speci.*ically exempts from the requirements for hazardous A.

waste disposal ar,y material defined as source; byproduct, or special nuclear material by the AEA.

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Contact:

J. Lambert, NMSS 427-74009

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DOE has proposed that for the purposa of determining RCRA's applicability at its facilities, byproduct material wastes should be defined as radioactive wastes that are "either directly yielded in the process of producing or utilizing special nuclear material, or have been made radioactive as a direct and necessary consequence of that process." Thus, under this proposed definition, "any DOE waste substance which is.... Byproduct Material, even those that otherwise could qualify as hazardous waste under RCRA, will continue to be regulated under DOE's exclusive AEA authority."

(See, in-Enclosure 1, Federal Register Vol. 50., No. 212, Friday, November 1,1985, p. 45736.)

Other wastes, particularly those "primarily incident to....

the process employed by DOE to produce commercial radionuclide products," would be considered " indirect process wastes." While these indirect process wastes "would be said to contain Byproduct Material....

they would not themselves be Byproduct Material, because their contamination with ra3ioactivity is neither a direct nor, strictly. speaking, a necessary consequence.of the process

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for producing and utilizing Spe'cial Nuclea.r Material [00E emphasis]." These wastes " exhibiting hazardous characteristics would be treated as ' mixed' waste, handled in.accordance with the requirements of both RCRA and the AEA."

(See, in Enclosure 1, FR, p. 45737.)

Discussion:

NRC staff has been having discussions with DOE staff regarding the matters within the proposed rule since August 1984. Staff had both legal and technical concerns with the approach DOE was taking, and informed DOE staff that we believed the proposed rule had implications for NRC's regulatory programs. 00E continues to maintain that the proposed rule is limited in scope to DOE wastes and, therefore, does not affect NRC.

, Comments were initially due to DOE on December 2, 1985, but were extended to January 2, 1986. On December 12, 1985 NRC staff requested a 60-day extension for acceptance of comments (Enclosure 3). We have been informed by telephone that DOE has not granted our request. As a result, staff prepared the enclosed response (Enclosure 4) to meet the January 2 deadline. The staff's response recommends that DOE seek clarifying legislation on this matter, which was the approach taken by NRC in its consideration of the Low-Level Radioactive Waste Policy. Amendments Act of 1985.

This response has been coordinated with the Office of the General Counsel and the Office of Policy Evaluation.

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3 Victor Stello, Jr Acting Executive b'irector for Operations

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Enclosures:

1.

FR Notice dtd 11/1/85 2.

Remo to Comm dtd 11/13/85 3.

Ltr to DOE dtd 12/12/85 4.

Ltr to DOE dtd 1/2/86 l

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November 1,1985

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Part V1 J

Department of

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w cra Byproduct Material; Proposed Rule G

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1 Federal Register i Vol. 50. No. 212 / Frid y. Novemb1r 1.1985 / Proposed Rults 45736 DEPA7meENT OF ENE190Y agencies an rwquared by section 6001 of plain words of the definition are keyed RCRA (42 USC. esel) to comply with to the process for producing and to CFR Part 942 that regulatory scheme in the same utilmng Special Nuclear Matenal that manner and to the same extent. as any process itself would appear to be Byproduct teatertal pnvare person or enuty. DOE had determinative of whether particular interpreted section 2006 of FCRA (42 radioactive matenals are properly AsWeCv: Department of Energy (DOE).

U.S.C. esos) as exempung from within the definition. Thus, while the acvioec Notice of proposed rulemaking.

regulation under RCRA DOE's activities ' definition is clear on its face that sussasANv:De Department of Energy and substances subject to the AEA Byproduct Matenal must be radioactive, proposes to issue regulations under relating to our Nation's national security it would appear that radioactivity alone section 161.p. of the Atomic Energy Act programs. In 1964. the United States does not suffice to charactenze a waste of 1954 (42 U.S.C. 2011 et seg,*

District Court dingreed with this substance as Byproduct Matenel. The beinafter the "AEA") for the purpose interpretation and held RCRA to be radioactive weste must be either of clattfytag the Department of Energy's apphcable to the activities of DOE under dinctly yielded in the process of obligations under the Resourca the Atomic Energy Act.LEAFv.Hodel, producing or utilizing special nuclear Conservauon and Recovery Act (42 se6 F.Supp.1163 (E.D.Tenn.1984).

material. or have been made radioactive USC.eeat etseg.: hereinafter" RCRA 1 By its definitional provisions.

as a direct and necewery consequence This regulation will clarify the however. RCRA excludes fromits of that process.

application of the term Byproduct regulatory scheme " source. spedal '

Radioactive wastes that are Material as defined in section 11e(1) of nuclear and byproduct materials." as accelerator produced or that are yielded the AEA (42 USC 2014(e)(1)), to those terms are defined by the AEA la the process of producing or utilizing Department of Energy owned or (section 2004(r) of RCRA. 42 USC.

Source Material or Byproduct Matenal produced radioactive waste substances 600MU)).nus, any DOE waste are not Byproduct Material because for the purpose of determining which of substance which is Source. Spedal thcee wastes do not result from the these waste subetances are Byproduct Nuclear or Byproduct Meterial even process of producing and utilizing Material under the AEA and an those that otherwise could qualify as Special Nuclear Material. lf those therefore not solid weste as that term hazardous waste under RCRA. will wastes display any hazardous is defined in RCRA. This proposed rule continue to be regulated under DOE's abaracteristics, they would. under the does not affect materials that are exclusive AEA regulatory authority.

ngulation proposed today, be subject to Byproduct mterial under section 11e(2)

The AEA provides deteiled definitions regulation under RCRA. despite their Of th' AEA-for Source mterial and Spedal Nuclear radioactivity.

The proposed reguladons are Material. but only defines Byproduct in contrast, high. level radioactive necesury to clarify which of thwe Matettal. In pertinent part, as "any weste emana:ing from the chemical radioactive matartal (except spedal processing of spent fuel for the radioactive wastes shall continue to be.

regulated by DOE exclusively under the nuclear material) yielded in or made production of plutonium, and AEA and which wastes shall be subW radioactive by exposure to the radiation radioactive weste cutting oil used for to regulation both underRCRAmad the incident othe procas of produda AEA.

utiltuing special nr. lear matertal."g or the maamnq of plutonium to a usable.

configuredon, are Byproduct Material as oars: Comments must be received on or section 11e(1). While in practice. little defined la the AEA. and therefore are befm December 2.1985.

need has previously arised to addrees excitided from regulation under RCRA.

this definition's applicability to because the contained radioactivity in l

Aeoneness: Comments shouldbe radioactive wastes, the use in RCRA of these westes is a direct. necessary and I

addressed to: Henry K.Garson Esq, Dyproduct mtertal as a waste term now inhmnt consequence of the process of Assistant General Counsel for requins a darification of what DOE producing and utilmng Special Nuclear Environment. Department of Energy.

radiew-ttve waste subetanen meet the

' Material, neee wastes, which todefs 1000 Independence Ave.;SW.,GC-11 statutory definidon cf Byproduct proposed rule would define as -

4 Weshington. DC 20545.

mterial smon rustman mercansareams costrAct:

Byproduct Material. are perhape, beet H. Discuss thought of as production or utshzauon Henry K. Carson. Esq Anistant diact process wutes.

General Counal for Environment.

Unlike the AEA,e definitions of the Intermediate to the examples set forth Department of Energy.1000 related terms Source Material (action in the two preceding paragraphs is the Independence Ave SW., Room 8A-112. of the AEA. 42 USC. 2014(a)) and case of westes whose contained 113. Washington. DC 20544, Nuclear Matersal(section 11aa.

radioactivity is an indirect result. rether Telephone:(202) 262-4347 the AEA. 42 USC. 2014(eal) which than direct proceu waste. from the Robert J. Stern. Director. OfBoe of menoon particular substances by name, process of producing and utilmns Environmental au-a' a (EH-M).

. the definidon of Byproduct mterial for. Spedal Nuclear Matertat For example.

Department of Energy.1000 purposes here pertinent. speaks only la some DOE facilities prepm Byproduct Independence Ave SW Washington, terms of a technical process.De radionuclides for use in cc nmerce.

DC 20545. Telephone:(202) 252-4a00 les stative history of this definition.

While it is clear that the products as provides little guidance as to its intended application. and the definition radionuclidee en themse'ves Byproo,uct 3ackground has not been clearly elucidated by Wtertalit would appearless clear that ne Resource Conservation and fuhalinterpntauor.* Because de the radioactive residun rnulting from Recovery Act (RCRA), enacted in 1976.

Srproems wearial was set ho="

e,echaur estabhshes a comprehensive regulato*y

' T-"*+7 " law'Trvume me Awesc si meu hme se wwus ciudy contained ochese to gove &e poemh 8**'ar '"+e bc=asme e.a nr ines rean oo,. wuie cs arty coacs.a.r erw new syyrod.as wwreal -h-aar $wn se resWwea by transportanon tnetment. storep and e.:ihese

e. Asc mme ca.ncr Uniwe sean asa m diepoul of hazardous waste. Federal

., oy,,.e.c, mi.n.t. n..p.cnae us et spo tse cw. isest cier.r N anum. ^==.c ws.sw ow=== m metr emarwy. ww, misr r coma a. ses ras see to C Car seati-i I

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feds Retater Val M No 212 Fr:dar A mber 1 1985 / P ocosec Ruies a

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pie. eoet anly.n :his forr,. 'ne eac! usa e ALA requiatory,cn,,.

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.e. n pra::.cso:e se:arer:.i Seir DOE ra6oa:ine was es cur -r.

-er onwned rao.oac mts 3 w

a..4::a e and onra:.uactne or :n e.e fature to be stor.c.r ;-u-

.raci consecurnee of ** :*rves*

c~ *~en's Pas direic' accurred cfare Les ei % a nte Tana s a: DOE r prm.cina and uttiirine Soa" sl

e so stances are act.a.i> c;spesec of These w a s:es are requiec,,.-2,.

• .... ear Wer:a!. by no rneans 4 d. e-.

er :: ass.fied as waste !! seems s> stem oi DOE Orcers wnicr: rep..

try.ess w as:e Such wast" a-M wNes apparent. then. that u.!ess the 'erm proper starase ano trea t en af: e 4-N:icactne in a samna' aaner.

' ra d;3a c:Jte :na:eriaI as used m wastes Ult:ra. ate!v. all of these we.

r. be ser.mec :noirect pracess sect:an 1telt! of the AEA :s taken to are to be d:sposeo of pursuant to :.

sies. W n..e con a.nina Os:r duct mei.ce the ennrety of a direct contact statutors scnernes mc!udma Se En Material inese westes wouse.at under process weste suostance m which Reorgatuzauen Act of 1974. tne tsca) s groposed rue De considered raboactive elements are dispersed the Department of Energy Organtzenor Sp:tduct M teri iin thett entirety.

esc! sion of Byproduct Matenal from

.. and the Nuciear Waste Poucy Act.

a Rait:er. if aiherwise found to cantam RCRA's coverage would be reduced to a Other DOE radioactne hazaroous t :ardci.s waste.they woGd be urtu4t nulhty.

car.sauered mazed waste '. ccrita.nmg wastes would either contmue to o, o.uh Byproduct Matenal anc or other 111. E!!act of Proposed Rule regulated under the enciuaive AEA ratoacta e matanal and hazardoi.e DOE has prepared for each ofits authonty. if they are direct process facilities a report Indicating which wastes. or be regulated under both w a s e.

Whu*e it would appear peasable to etistmg individual waste streams would AEA and RCRA'authont:es if the~v not.

construe tne AEA to incause.sdirect be considered Byproduct Matersal under process wastes and other m2Aed wastes this proposed rule. and which individual.

IV. Invitation to Canamaest and Noti a B) product Material because. is the waste streams would be considered Public Hearing context of DOEs AEA act.vst;es. : heir mixed w astes. (The reports identtfy laterested persons are mvtted to contained radioacuvity is. m the ruos:

sorce wasses as "candadate

• named submit written comments and literal sense. " incident to the process wastes because it is not yet known recommendations to the address se for produc.ng and utilizmg Special whethat there are in fact hasardome forth at the bermning of this docum Nucieat Matenal and these wastes constatuaats a these weets streama.)

clearh contam Byproduct Matenal.it These reporte are available far All co amenta or recomunendataons wo.id seem more aa: urate to eey that inspecuon at the following locatsome recetved on or before December 2.1 t.'ese wastes are pnmarily ac:eeot is a dur:ng nomral.busmess hours:

will be considered before the inuat different process. the process employed of final regulanons.

by DOE to produce commercial U S. Department of Energy. Room 1E-190.

All comments submitted in respot 1000 Independence Avenue.5W.,

to these proposed regulations will b rad onuclide products. Under this line of Washington. DC 20544 reasonmg. wh:le indirect process wastes Albuquerque Ocerations Omce. Nettonal

.available for public mopecuan. dun would be said to contem Byproduct Atomic Mueum. Wyosuns Sivd., Suddag and after the comment pened in Roi 1E-190.1000 Independence Ave. 5%

Material (trapped radionuclides. :o use O eratYo e South Can as ington. K 2M45 beIwun the

he eumpie gnen m the precediog Ch parseraph). they would not themselves 3,,n,,, 3,,,,,,, ggm hours of 9 00 a.m. and 4.00 p.m Mor e B) product Matenal.because their Idaho Operenons Omce. 550 5econd $<reet.

through Fnday of each week except ideho Fella.ID a3act -

Federal holidays. -

contammation with radioactivity is Nevede Opereuone Office Pubite Reeding Pursus' t to section 501 of the neither a direct not. stnctly speakittg. a Room. 2753 South Hightend street.1.as Department of Energy Organizatica n

necessary consequence of the process -

Vegas. NV sets for producing and unlizmg Special ook Ridge Operenone Omce. Federal the Department will provide an Nue: car Matenal Because of this 8 dd2ns. 200 Admanurrauon Road. Oak opportuntry for oral presentauon of d:sanct:en. DOE :s proposms that these Ry"a[ Ope views. data and arfuments. Intereste one omce. Hanford Science persons may t'equest a public heann

.ncirect :rocess wastes exhibitmg cazarcous cnatactenstics be treated as Center. a25 jedwm Strue. Ric.*uena. WA the date set forth above. If any reque sessa Snised" waste. nandled in accordance for a pubbe beenug are tirne!y recen with the recuirements of both RCRA Sert Frencuco Cpereuone Omce.1333 the Department wdl conduct a public and :ne AEA.

Broadwey. 2nd Floor Oealand CA 9ee12 heanns on November 13.1945. at 9 0 Sevennea River Operatione Omce. FOt Thus. DOEs proposed interpretstion PubhcenoniDocument Room. Unsveritty of a.m. m Room 1E-245.1000 Indepence of "Bvproduct Matenal" for purposes of South Carohna--Aaken. Asken SC 29aot Ave SW., Washmgton DC. If no clanfy:nq RCRNs apphcability to requests for a heanng are received. t radioactive waste substances at DOCS Should processes change. or should new heanng will be canceded P oceo ra waste streams not m eeports be rules for the hear:ng wul be annoi.r:c AEA facilities. would apply only to produced. these wastes would be at the commencernent of the neancg.

preduction or utilizat on " direct process classified using the definition proposed

w. stas today. apphed in a consistent manner to V. Related Rulemakmg This proposed rule is supported by the achieve consistent results. DOE believes This proposed rule c.ar:fies the fact that vir uad) all radioac:ne waste that this porposed rule provides a junsdictional basis for :he appucano ubstances yie!ded an the rocess for reasonable basse to classify the wastes RCRA to certam DOE wastes The prMuc est or utizing spec:ai r'uclear produced at ses AEA facihties consistent Environmental Prosecnon Aver!cy hat e'er i! are contamed. dissch ed or with both DOEs AEA authorities and i:s proposed. or wdl snort!y propose. iv.e s.scenced m a nonradioactn e meca.m.

resconstbtlities under RCRA.

under its RCRA authorities 'o aosera it:9 Ntich these separanon is

!! the rule proposed here today is otherissues mvohed an RCRA s

rsc

: cab;e H:qh.ievel rad.oacina adopted by DOE. its spphcanon wdl apphcation to DOE facdsties eca.d w.u:e anc most transurantic waste far hase the effect of leaung under the usues of nationai secut-a s:='e

45738 Fed:ra. Artistir ! Vol 50 No. 212 / Fnday. Nove ' er 1.1985 / P oeos d af.;

program cons stency. protection cf data Issued.n Mshir gren. DC Oc obe 24

( 94 2.2 Pwrco se.

and access :o DOE facmt:es interested 19a1 persons should elso review that I M8C2'"I I*'"II' The ou p.3se of th:s p,..

,.3 "

the ter. 8,6 ptcca.-t Nta:e.o r;iemaking in order to have an Ce ***' CJ888el-section lle:1) of e.e A:e.n g,

.g.,

awareness of all of the issues involving In consideration of:he foregoing P4rt RCRA application to DOE facilities.

962 of to CFR Chapter !!!is proposed :o f 42 IJ 5 C..'014:e.t i for ase -

VI. Procedural Manm be added as set forth below.

determineg :he Depar:rnent $ E". -

g

' ' #C' Part 962 is added to 10 CFR Chapter !!

A. Executive 0+r 1229:

to read as fo!!aws:

Conservation and Recosers Act wen regard to radioactive wass sut 4 c These proposed regulations have been PART M2-8YPROOUCT MATERf AL owned or produced by the De;3-*mer reviewed ad accordance with Executive of Enugy pursuant to the eurese of Order 12291.

see.

authonty under the Atemic Enere. A They are not classified maior because N2

. as amended. It does not ai*e-they do not meet the entene for maior eeI3 8 product metenal the definition of Byproduct Materal regulations established in that Order.

Autheetey: Die Atomic Energy Act of 1954.

8. AegulatoryFlersbelityAet e e amenced (42 USC act1 er see 1: Energy I 802.3 Syprossuct meteries.

Certificerson lleorseruzauon Act of tert (42 U.S.C saot ee see.l. Department of Emersy Orgesussuon Act For Eurposes of'this Part. the re -

The regulations will not have a et ter7(42 USc itos er see.1: Nuctee, Byproduct Matensi means a waste significant impact on a substanual Weere Policy Act of 1982 (Pub. L 97-425. es substance contatning radioactivity th number of small enuties.

Stat. zzoti.

is either directly yielded in the proces C Paperwork Aeduction Act of1980 I sea.1 sense.

of producing or utiliz2ng Special Nuc!.

There are no infortsation collecnon This part applies to radioactive waste Material as that term is defined in the substances which are owned or Atomic Energy Act of 1954. as am.end requarsmenta tn the proposed nales.

produced by the Department of Energy e ofb Ilst of Subjecta la le CFR Part osa at fact!ines owned or operated by the n

no u Department of Energy under the Atomie procesa.

Nuclear matenata. Bypeoduct Energy Act of1954. as amended (42 (FR Doc, as-28312 Filed 10-31-49: te13 a=

metenal.

U.S.C. 2011 et seg.).

sume coes es.e e I

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NOV 131965 1-MEMORANDUM FOR:

Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech FROM:

William J. Dircks Executive Director for Operations

SUBJECT:

00E'S PROPOSED RULEMAKING ON THE DEFINITIO '

0F BYPRODUCT MATERIAL On November 1,1985, the Department of Energy (DOE) proposed a rule intended to clarify the definition of the term " byproduct material" as defined under Section lle(1) of the. Atomic Energy Act.

The proposed interpretive rule is an effort by 00E staff to resolve jurisdictional disputes with EPA over the regulati.on of wastes at 00E facilities which contain both radioactive and hazardous constituents (referred to as " mixed" wastes).

The stated purpose of the proposed rule is to determine DOE *s' obligations under the Resource Conservation and Recovery Act of 1976 (RCRA), and to determine which of the

" mixed" wastes produced or owned by 00E should be subject to regulation under i

that act. While the rule is ostensibly written to specifically resolve only the 00E/ EPA mixed waste regula~ tory questions, it could also impact on NRC licensing activities since it sets out a new approach for determining which substances are to be considered to be byproduct saterial.

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Comments on the proposed rule are due'to DOE on December 2, 1985.

NRC staff plans to send comments to 00E and will keep the Commission informed.

A copy of the proposed rule as published in the Federal Register is enclosed for your information.

.TSigned) Jack # Roe

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william J. Dircks Executive Director for Operations l

Enclosure:

l FR 45736 cc: SECY OGC OPE

v t

DEC 121985

' Henry K. Garson, Eso.

Assistant General Counsel for Environment U.S. Department of Energy 1000 Independence Avenue, NW GC-11 Washington, D.C.

20585

Dear Mr. Garson:

On November 1, 1985, the U.S. Department of Energy (00E) published a notice of proposed rulemaking for 10 CFR Part 962, entitled " Byproduct Material" (50 F.R. 45736).

The deadline for comments was originauy December 2,1985, but has subsequently been extended to January 2, 1986.

.The U.S. Nuclear Regulatory Commission (NRC) requests that DOE extend the comment period for an additional 60 days.

The'NRC believes that the proposed rulemaking could be construed to apply also to the regulation of byproduct material. by the NRC and NRC Agreement States.

It should be further noted that the U.S. Environmental Protection Agency (IPA) stated, in a letter to Eric Fygi, Deputy General Counsel, 00E, dated October 30, 1985 (copy enclosed), that the proposed interpretative rule will be relevant to the waste subject to NRC jurisdiction.

The ramifications of the rule proposed by 00E could be significant to NRC, i

the approximately 10,000 material licensees regulated directly by NRC, and the approximately 13,000 Agreement State licensees regulated by States under j

agreement with NRC. Unfortunately the information pr6vided in the proposed rulemaking notice is not sufficient for NRC to fully evaluate the potential l

impacts on NRC.

As a result, we believe that it will take at least an additional 60 days to evaluate the potential problems the proposed 00E l

definition of byproduct material would have on our regulatory program.

Sincerely, g g j,...., -vis John G. Davis, Director Office of Nuclear Material Safety and Safeguards

Enclosure:

Letter fra EPA to CCE, dtd 10/30/85 l

l E:. closure 3

Sh 2 ~ 1955 Henry K. Garson, Eso.

Assistant General Counsel for Environment Department of Energy 1000 Indeoenoence Avenue, SW Washington, D.C.

20525

Dear Mr. Garson:

The Nuclear Regulatory Commissicr. (NRC) staff has reviewed the Depa Energys (DOE's) proposed rule, published in the November 1, 1985 Federal Recister, concerning the definition of byproduct material (50 FR No 457361 This letter and its enclosures provide those.N9C stafT~comm. 212, proposed rule that we nave ceen able to develop in the time provided.

ents on the As the NRC staff indicated in our Cecember12, 1985 extension for acceptance cf comments (which we understand from a te

- ay potential corsecuences of the proposed rulemaking. conver of the significant imcacts of wnich we We are providing examples Agreement States' regulatory programs.,are currently aware on NRC's and the Essentially, NPC staff significant and unacceotatie impact on the regulatory prog Agreement States.

founc tc be aDolicaole tIf tne proposed 00E definition of byproduct material were NRC, we believe it would effectively remove from NRC and Agreement State jurisciCtion the discosa'l of wastes with significant radiclogical hazaros t. hat.n4ve heretofere oeen under our regulatory contro NQC has been pursuing a legislative clarification of the jurisdictional h&Zarcous under.tne Resource Conservation anc Recov COE-croducec wastes.recommeno tnat DOE consider 'a simila We waste issue in tne ucccming legislative. session.We understano that Cor I

f i

Ja n.-

2-7:5 We appreciate the occortunity to coment en the orc:csed ruleracirg.

Sincerely, G a...

Robert E. Browning, Director Oivision of waste Management

Enclosures:

1.

Staff Connents 2.

Ltr to OGE ate.2/12/25 e

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2 Decemoer 31, 1985 NRC STAFF COMMENTS ON PROPOSED 00E 10 CFR 962 RULEMAKING CN THE DEFINITION OF BYPRODUCT MATERIAL In proposing the rulemaking, DOE has assumed that the application of the changes suggested to the interpretation of the Atomic Energy Act (AEA) definition of byproduct material will be confined to DOE activities and only to However, wnat DOE is proposing is a departure from the statutory wastes.

definition of byproduct material.

As a result, NRC staff believe that if DOE's proposed definition is promulgated as a final rule, it would inevitably have a significant effect on the nature and scope of the NRC's and Agreement States' longstanding regulatory regime for the possession and use of byproduct and special nuclear material.

Potential Major programmatic Imoacts:

A major concern derives from an implication of the proposed rule, if 00E's proposed definition were construed to apply to NRC byproduct material licenses, that the regulatory definition of byproduct material would be significantly narrowed, and radioactive material currently regulated as byproduct material by NRC would no longer fall under NRC jurisdiction.

Under the proposed distinction between " direct" and !' indirect process wastes,"

for example, the partitioning of cesium for commercial product irradiation could result in the disposal of megacuries of radioactive cesium under no NRC or Agreement State regulation.

Under longstanding Atomic Energy Commission and NRC regulations, radioactive wastes from licensed uses of DOE produced materials have been considered byproduct material, and have been subject to NRC and Agreement State regulatory control.

The proposed DOE definition would ;not consider such wastes to be byproduct material, because they could not be considered " direct process wastes" from the production or use of special nuclear material.

The proposed' exclusion of " indirect process wastes" could thus create a new class of orphan radioactive waste from radioactive materials I

such as cesium and similar DOE produced materials.

This new orphan waste would be created just af ter Congress has completed efforts to reduce cephan wastes by passing H.R. 1083, The Low-Level Radioactive Waste Policy Amendments Act of 1985, which will soon go before the President for signature.

[See Section 3(b)(1)(0) of H.R.1033.]

There are many other COE-produced materials in commerce that would also become unregulated by NRC anc Agreement States under the proposed " direct-indirect"

-g-distinction. The orcaosed rulemaking allows an interpretation that a materials licensee who uses byproduct material to conduct research and development activities, or processes byproduct material to produce medical isotopes, would produce a waste that is not considered to be byproduct material since it was not produced as a " direct and necessary consequence" of the prbduction or utilization of special nuclear material. Under the NRC's existing regulatory scheme such waste is regulated by NRC as byproduct material because it contains radioactive material that was initially produced incident to the production or utilization of special nuclear material.

The proposed 00E definition would no longer classify such wastes as byproduct material, and it thus would no longer fall under NRC's regulatory jurisdiction.

The example of plutonium-contaminated cutting oil used in the proposed DOE rulemaking is also inconsistent with NRC's current regulatory scheme.

According to the proposed 00E definition, it would become byproduct material, although sucn waste would be regulated by NRC as special nuclear. material if it were produced from licensed uses. Under the proposed interpretation, it appears that some NRC part 70 licensees would become Part 30 licensees and NRC might lose jurisdiction over some possession and use of special nuclear material as well as byproduct material. This could raise important strategic and safeguards problems.

legal Basis for Programmatic Imoacts:

The proposed 00E definition is not consistent wi.th the defin-ition of byproduct material in Section 11e.(1) of the Atomic Energy Act of 1954,.as amended, under which NRC and its predecessor, the Atomic Energy Commission, ha've conducted their affairs for decades. In the statutory definition, byproduct material is defined in physical terms as radioactive material (underlined for emphasis) that is yielded in or made racioactive incident to the process of utilizing or producing spec'f al nuclear material.

This has always been considered to refer to: (i) fission p' roducts, i.e. the radioact.ive isotopes that result from the process of fissioning of special nuclear materials in a utilization or production facility; and (ii) activation products, i.e. radioactive isotopes that result from the bombardment of materials with neutrons p'roduced in a l

utilization or production facility.

The statutory definition excludes special l

nuclear material (i.e. plutonium) that can be produced in the same processes.

Once byproduct material is created in the physical manner described in the statutory definition, it and any radioactive decay products remain byproduct material for as long as they are radioactive, and are regulated as byproduct material by the NRC or its Agreement States throughout their commercially useful life, subsequent disposal, and long-term care at a disposal site. This I

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has been the consistent historical regulatory understanding of byproduct material for tne last forty years.

The Department's proposal would depart from the statutory definition, as commonly understood and as applied through NRC regulations, in significant ways.

First, it removes the qualification,that to be byproduct material, the material must be radioactive.

In the 00E proposal, the waste material need only contain radioactive material, apparently without regard to the statutory i

nature of the radioactive component. For example, plutonium-contaminated waste cutting oil would be called byproduct material notwithstanding the fact that the radioactive component, plutonium, is by law special nuclear material.

It is difficult to understand how plutonium-contaminated cutting oil can be byproduct material when under the statutory definition, the only radioactive component is special nuclear material.

Second, the concept of the radioactivity having to be "directly" yielded in the i

process of producing or utilizing special nuclear material is not a concept within the statutory definition. Under 00E.'s proposed "directly.yfelded" concept, decay products in irradiated reactor fuel would not be byproduct material, since the daughter products are not the immediate and direct result of the fission process, but come into being at time intervals dependent on the half-lives of the primary fission products.

If this concept were applied to the commercial sector, it would contradict forty years of accepted regulatory understanding and would leave unregulated radioactive materials which are currently regulated by NRC or agreement states as byproduct material.

Third, the proposal advances a conce,pt that waste is byproduct mat ~erial if it is made radioactive as a " direct and necessary consequence" of the process of i

producing or using special nuclear mater.ial. These terms, " direct and necessary consequence," imply a relationship not to be found in the statutory definition.

The latter defines byproduct material as. " radioactive material (except spe'cial nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nu' clear material." The definition is thus framed in physical terms (i.e. " radioactive material (except special nuclea,r material)") that do not require a judgment as to what is a direct and necessary consequence of the production or utilization of special nuclear material.

?

The legislative history of the Atomic Energy Act of 1946, in which the term byproduct material was first defined, is inconclusive with-regard to Congresssional intent ccncerning any hazardous chemical materials which might be associated with byproduct material.

The record does indicate, however, a concern that the term not be read to include metallurgical process wastes, such as uranium and thorium milling tailings, and that it be restricted to " hot",

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. i.e. radioactive, materials. (3 Legislative History of the 1946 Atomic Energy Act 2502-03, 2524.) It is our-belief that the use of the term " radioactive" in the present statutory oefinition was deliberate and intended to restrict the application of the term byproduct material so as not to specifically include the hazardous chemical material.

Regulations written to implement a statute such as the Atomic Energy Act of 1954, as amended, cannot exceed or enlarge the scope of the legislative authority granted by the statute.

In our opinion, the Department's proposed, redefinition of byproduct material is enough at variance with the plain meaning and historical understanding of the statutory definition to call the legality of the proposal into question.

NRC Staf f Recommendation:

Rather than proposing to change the AEA definition of byproduct material, the Commission has been pursuing a legislative clarification of the jurisdictional uncertainties posed by NRC-regulated wastes mixed with substances considered hazardous under the Resource Conservation and Recovery Act of 1976.

The NRC sta'ff recommends that DOE consider a similar course for the clarification it seeks for DOE produced wastes. We understand that Congress will be considering legislation to resolve the mixed waste issue in the upcoming Congressional session.

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, Henry X. Carson. EsO.

Assistant General Counsel for Environment U.S. Deoartment of Energy 1000 Incepencence Avenue, Nw GC-11 wasnington 0.C.

20585

Dear Mr. Garson:

On Novemoer 1,1985, the U.S. Geoartment of Energy (00E) published a notice of proposea rulemaning for 10 CFR Part 962, entitled "8yproduct Material" (50 F.R. 45736).

The coacline for comments was originally Decencer 2,1985, but has suosecuently oeen extenced to January 2,1986.

The U.S. Nuclear Regulatory Commission (NRC) equests that 00E extene tne comment period for an

'accitional 50 days.

The NRC believes tnat :

Ne orecosec rulemaking could be construed to apply also to tne regulation of cycrocuct material py tne NRC and NRC Agreement States.

It should be furtner noted inat the U.S. Environmental Protection Agency (EPA) statec, in a letter to Eric ~ygi, Geouty General Counsel 00E, dated October 30, 1985 (ccoy enc'esec), imat Ne crocosec interpretative rule will De relevant to

ne -as e suoject to NRC juriscict:en.

~5e esmsf' cati:ns of :Pe -

'.e or:cosed oy GCE could ce significant to NRC, tre accroximately 10.000 material licensees regulatec cirectly by NRC; anc tne accroximately 13.000 Agreement State !icensees'regulatec ty States uncer -

e agreemert its NRC.

un':rtunately tne in*cemation oroviced,in tn'e crocosed uiemaning otice is not sufficient for NRC to fully' evaluate ene potential

'moacts en NRC.

As a result, we believe taat it will taxe at least an acc :': cal 50 :ays to evaluate tne potent ai oraciems :ne secoosec CCE

e-t tice :' :.:- c.c; material woula ave c

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POLICY ISSUE (Notation Vote)

January 8, 1986 SECY-86-9 For:

The Commissioners From:

Victor Stello, Jr., Acting Executive Director for Operations

Subject:

U.S. NUCLEAR REGULATORY COMMISSION (NRC) COMMENTS ON THE U.S. DEPARTMENT OF ENERGY (D0E) PROPOSAL TO THE CONGRESS FOR THE CONSTRUCTION OF A MONITORED RETRIEVABLE STORAGE FACILITY (MRS) FOR HIGH-LEVEL RADI0 ACTIVE WASTE AND SPENT NUCLEAR FUEL [ NUCLEAR WASTE POLICY ACT (NWPA) SECTION 141]

Purpose:

To obtain Commission approval of coments on the DOE MRS proposal which will be forwarded to 00E. NRC comments will be submitted to the Congress by DOE with the MRS proposal.

Summary:

DOE has submitted for NRC comment a proposal for the storage of spent fuel in an MRS as required by the NWPA. This proposal will be submitted to the Congress in February 1986 along with the NRC's comments and those of the Environmental Protection Agency (EPA). This paper recomends comments on the proposal for the Commission's consideration.

Background:

Section 141 of the NWPA requires that DOE "...shall complete a detailed study of the need for and feasibility of, and shall submit to the Congress a proposal for, the construction of one or more monitored retrievable storage facilities for high-level radioactive waste and spent nuclear fuel."

[Sec. 141(b)(1)].

The NWPA also specifies that "...in formulating such proposal, the Secretary shall consult with the Commission and the Administrator [ EPA], and shall submit their comments on such 3roposal to the Congress at the time such proposal is submitted"

[Sec. 141 (b)(3)].

In accordance with the NWPA, DOE has consulted with the staff on the regulatory aspects of an MRS proposal.

NWPA also specifies that an MRS would be subject to licensing by the NRC.

CONTACT:

A. T. Clark, NMSS 74205 h

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2-The Commissioners The applicable regulation for the NRS 'is 10 CFR Part 72,

" Licensing Requirements for the' Storage of Spent Fuel jn an Independent Spent Fuel Storage Installation (ISFSI)."

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Discussion:~~

DOE's proposal to the Congress for an MRS is included with i

this paper as the final enclosure (Enclosure D).

A synopsis of the proposal contents prepared by the NRC sta f f is provided as Enclosure A.

The staff also has received additional referance infonnation from DOE, at identified in Enclosure A.

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The Commissioners Scheduling:

The Department of Energy has indicated a 45-day comment period for the NRC and the EPA. The proposal was received on December 24, 1985. Therefore, comments will be due to DOE by February 6,1986.

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CONTENTS OF DEPARTMENT OF ENERGY PROPOSAL TO THE U.S. CONGRESS FOR A MONITORED RETRIEVABLE STORAGE FACILITY Vol. I Proposal o

Describes the Department's proposal to construct and operate an MRS facility at the Clinch River site in Roane County, Tennessee.

The proposed facility would be an integral part of the federal waste management system and would perform most of the high-level waste preparation functions before emplacement in a repository.

Vol. II Environmental Assessment o

Specified by the Nuclear Waste Policy Act (NWPA) in lieu of an Environmental Impact Statement (EIS) o Includes DOE study results of need for, and feasibility of, an MRS as required by NWPA o

Includes site-spec.i.fic evaluations for three specific sites

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and two storage concepts.

Vol. III Program Plan.

Contains activitibs, costs, and sYhedules as required by NWPA a.

Deployment Plan Describes how 00E will establish and implement a program for the siting, development, construction and operation of.

an MRS.

It includes a Licensing Plan and a Design Verification Plan.

The Licensing Plan outlines the key steps involved in obtaining an NRC license.

The Design Verification Plan describes the demonstrations and tests needed to assure safety and efficient operation.

b.

Integration Plan Shows how DOE will integrate MRS with other facilities and systems authorized by NWPA.

Enclosure A

3-

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Funding Plan Shows how MRS costs are borne by the waste generators through the Nuclear Waste Fund and what those costs are likely to be.

Reference 00E Information on MRS Held by staff Conceptual Design Report including:

o Design Description o

Regulatory Assessment Document Describes DOE's efforts to comply with NRC regulations (primarily 10 CFR Part 72) to obtain a license.

o Design Drawings o

Cost Estimate Summary o

Design Studies Functional Design Criteria Report, PNL-5673 o

Technical baseline document defining facility design objectiyes and minimum acceptable requirements.

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Conceptual Basis for Design Report

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o A control document that establishes the basis for executing the conceptual design.

o Enclosure A

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RULEMAKING ISSUE January 28, 1986 (NEGATIVE CONSENT)

SECY-86-28 For:

The Commissioners From:

Victor Stello, Jr.

Acting Executive Director for Operations

Subject:

SECY-85-163/163A - STATION BLACK 0UT, UNRESOLVED SAFETY ISSUE (USI) A-44

Purpose:

To provide the Commission with the staff's backfit

. analysis for the proposed rule on Station Blackout.

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Discussion:

The staff met with the Commission on September 11, and November 14, 1985, to discuss the proposed resolution of USI A-44 (SECY-85-163/163A).

A memo from the Secretary of the Commission to the E00 indicated that the Commission, by a vote,.of 5-0, has approved the proposed rule on station blackout

Contact:

A. Rubin, NRR 492-8303

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