ML20211G696

Mgt Review of National Environ Policy Act Decisions in Waste Mgt Programs

ML20211G696
Person / Time
Issue date:	09/26/1997
From:	Person L NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
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Shared Package
ML20211G695	List: ML20211G691 ML20211G696
References
REF-WM-3 NUDOCS 9710030206
Download: ML20211G696 (17)

Text

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i MANAGEMENT REVIEW OF NATIONAL ENVIRONMENTAL POLICY ACT DECISIONS IN THE WASTE MANAGEMENT PROGRAMS Prepared by LeRoy S. Person, Sr. Materials Engineer Low-Level Waste & Regulatory Issues Section Low-Level Waste & Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety & Safeguards September 26,1997

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l MANAGEMENT-REVIEN OF NATIONAL ENVIRONMENTAL POLICY ACT * '

DECISIONS IN THE WASTE MANAGEMENT PROGRAMS TABLE OF CONTENTS Sect pescriotion Pace I.- PURPOSE . . . .- . . . . . . . . . , , . . . -. . . . . . 1-II. INTRODUCTION , . . . . . . . . . . . . . . . . . . . . , 1 III. DOCUMENTATION OF ENVIRONMENTAL REVIEWS . . , . . . . . . 1 IV. NEED FOR A CONSISTENT DECISI$N FRAMEWORK . . . . . . . . 3 V. STUDY METHODOLOGY ,. . . . . . . . . . . . . . . . . . 3

-A. General Approach , . . . _ , .: . ,, . . . ... . . 3 B. Review of Decisions Regarding Level of Environmental Review and Method of Preparation . . 4 C, Selection of Major Factors Influencing the Decision Bases , . . . . . . . . . . . . . , , , . 4 VI. APPLICATION OF INFLUENCE FACTORS TO-SITES IN THE STUDY , 6' VII. CONCLUSIONS OF STUDY , . . . . . . . . . , , , , , , , , 6 <

A. General . . . . . . , , . . . . . , , . . , . . . . 7 1 B, Application of Influence _ Factors to EAs . . . . . . 7 C. Application of-Influence Factors to EISs . , , . . 7 2

VIII- IMPACT OF THE NEW DECOMMISSIONING P.ULE

. , . . . . . . 8

-]D(, RECOMMENDATIONS .- . . . . . .., , . , , , , . . . . . 8 X. -DOCUMENTS REVIEWED . . . . . . . . _ . . . . . . . . . , ,

9-A. Environmental Assessments . . . . - . . . . - , . . .. 9 B. Environmental Impact Statements . . . . . . . . . . 9 Appendix A. Actions _and Requirements Associated with the Development of.-an Environmental Impact-Statement 11

M 4 MANAGEMENT REVIEW OF NATIONAL ENVIRONMENTAL-POLICY ACT DECISIONS IN THE WASTE MANAGEMENT-PROGRAMS I. PURPODE The purpose of this report is toi. (1) review the bases for Division of Waste Management (DWM) decisions to prepare environmental assessments _(EAs) and environmental impact statements (EISs)in support of decommissioning and uranium recovery actions; and (2) identify lessons-learned based on the review with the objective of enhancing the effectiveness, consistency, and efficiency of DWM environmental decisions.

II. INTRODUCTION The U.S. Nuclear Regulatory Commission has established a process by which the Agency analyzes a licensee's proposed action to determine if the action will have a significant impact on the human environment and documents the Agency's findings. This

! process has the purpose of assuring that the Agency, in its j

decision making, will comply with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA).

NRC's regulations in Subpart A of 10 CFR Part 51, " Environmental Protection Regulations for Domestic Licensing and-Related Regulatory Functions," have been promulgated to implement section 102 (2)- of NEPA which, in part, requires that Federal agencies  ;

identify whether a proposed action is a major Federal action significantly affecting the quality of the human environment.

The regulations in Part 51 are imp _lemented in a manner that is consistent with NRC's domestic licensing responsibility under the Atomic Energy Act of 1954, as amended (AEA), the Energy Reorganization Act of 1974, as amended, and the Uranium Mill Tailings Radiation Control Act of 1978, 1

III. DOCUMENTATION OF ENVIRONMENTAL REVIEWS Licensing actions in the uranium recovery, low-level waste, end decommissioning programs are supported by both safety and environmental reviews. The safety reviews are_ conducted in accordance with applicable Standard Review Plans and are intended to ensure that proposed activities can be conducted safely and in ,

accordance with NRC requirements under the AEA. The results of safety reviews are typically _documenced in the form of a safety evaluation report. Environmental reviews are conducted in accordance with the applicable provisions of-Part 51 and are documented in one of three ways described in the following paragraphs.

• Categorical Exclusion (CATEX) - This type of action must meet the criterion that the action has been declared by the Commission, through regulation or rule, to be a category of l

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action which neither individually nor cumulatively has a significant effect on the human environment. Such actions' have been determined in advance by Commission rule not to require further environmental review (i.e., development of an environmental assessment or an environmental impact statement) and are listed in S51.22.(c).

• Environmental Assessment (EA) - Generally, the staff prepares an EA for actions that do not qualify as a CATEX but, based on the influence factors discussed later in this report, do not appear to require an environmental impact statement (EIS). Assuming that the EA concludes that the proposed action will not result in a significant environmental impact, the EA is accompanied by a formal Finding of No Significant Impact (FONSI). If the EA concludes that a significant environmental impact will result from the proposed action, an EIS must be developed.

The requirements for an EA and FONSI are contained in S51.30 and S51.32 respectively. An EA describes the proposed action, and gives a brief discussion of: (1) the need for the proposed action; (2) alternatives to the proposed action; (3) the environmental impacts of the proposed action and alternatives; and (4) a list of agencies and persons consulted and identification of sources used.

• Environmental Impact Statement (EIS) - The most detailed environmental review is the development of an EIS. This process, and the associated regulatory requirements, are summarized in Appendix A to this report. 10 CFR 51.20 specifies the conditions that require an EIS to be developed. These are: (1) the proposed action is a major Federal action significantly affecting the human environment; or (2) the proposed action involves a matter which the Commission, in the exercise of its discretion, has determined should be covered by an EIS. Because of the broad nature of these two regulatory criteria, considerable uncertainty can exist in determining whether a proposal is a major Federal action. This section of the regulations also specifically requires that an EIS be developed for certain licensing and regulatory actions. Those actions applicable to DWM are:

Issuance of a license to possess and use source material for uranium milling or production of uranium hexafluoride pursuant to 10 CFR Part 40; Issuance or renewal of a license authorizing receipt and disposal of radioactive waste from other persons pursuant to 10 CFR Part 61; and Issuance of a license ameadment pursuant to Part 61 authorizing: (1) closure of the facility; (2) transfer 2

6-f of the license to the disposal site owner for the purpose of institutional control; or (3) termination of the license following the institutional control period.

None of EIS's reviewed were developed as a result of one of these three requirements.

IV. NEED FOR A CONSISTENT DECISION FRAMEWORK Experience shows that the level of effort required to prepare these documents varies considerably, ranging from a few staff-hours for a CATEX to up to 2-3 -(two to three) FTE and

$800,000.00 of technical support for an EIS. In addition, EISs are developed through a formal and public process over several years, including opportunities for adjudicatory review within NRC or through the courts and public meetings. Litigation and public involvement in NEPA actions can significantly increase resource requirements of the agency and licensees. Consequently, it is important that NRC make decisions on whether EAs or EISs will be prepared in a consistent, defensible, and appropriate manner to ensure prudent use of government and licensee resources.

V. STUDY METHODOLOGY l A. General Approach l

Five EAs and four EISs were examined in this study in an effort to determine the level of management review and the most common factors considered by DWM's staff in its decision to prepare (or conversely not-to prepare) an EIS. These documents are

- identified in Section X. The decision that a proposed action falls within a CATEX is a relatively straightforward one, as is the documentation for this decision. Therefore, no CATEXs were reviewed in conjunction with this study.

The EAs and EISs reviewed contain the environmental decision records of several types of DWM facilities, including:

decommissioning sites; uranium milling facility final tailings reclamations and treatment pond closures; and in-situ leach operations. Agency actions encompassed by these reviews include:

issuing of a license; amendments to a license; license termination; and review of a licensee's proposed remediation alternative. In addition to reviewing these documents, interviews were conducted with the licensing project managers and the organizational managers of record, where possible, to determine: the level of management review; technical details of the facility; physical conditions at each site; and significant issues.

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e B. Review of Decisions Resardino Level of Environmental Review and Method of Preparation The decision that an action qualifies as a CATEX is normally made by the Section Chief in consultation with the Office of the General Counsel. The CATEX finding is concurred in by the Branch Chief. The level of management review concerning the decision to develop an EA is identical. Because of the resource implications involved in developing an EIS, DWM management is consulted in this decision process.

C. Selection of Maior Factors Influencina the Decision Bases The document reviews and staff interviews resulted in the identification of eleven common factors that influenced the decision regarding the type of environmental review conducted for the proposed licensing actions. The determination if a factor is significant is reflected in the answer to the questions posed by the influence factors. The factors are defined below and are listed in the first column of Tables 1 and 2. These factors have been divided into two categories: (1) regulatory influence factors; and (2) site specific influence factors.

1. Regulatory Influence Factors (RIFs)

The first six factors of the eleven identified in this study have a citable regulatory basis or are directly related to NRC interim cleanup criteria. These RIFs are major factors that must be .

considered in the assessment of the impacts of a proposed action }

because they automatically exert an influence during any assessment of the degree to which the proposed action complies with agency regulations. The six RIFs are defined below.

• Factor 1, Is the Proposed Action Listed in 10 CFR 51.22 as a CATEX? - Proposed actions which do not qualify as a CATEX under 10 CFR 51. 22. (c) , require either an EA or EIS.

• Factor 2, Is an EIS Required by Commission Direction or by 10 CFR 51.20? - This influence would be the result of a Commission decision to exercise its discretion to require an EIS or the action is identified as requiring an EIS as discussed in Section III above.

• Factor 3 Will Meeting Cleanup Criteria Require Large Cost?

- This influence factor accounts for the impact that a lack of available licensee decommissioning funds has on the decision to produce an EA or EIS.

• Factor 4, Are Ground Water Contaminants a Significant Fraction of an Applicable Standard? - This factor recognizes the potential influence on the decision bases from contamination present in a major aquifer.

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• Factor 5, Does Licensee's Proposed Acticn Meet Unrestricted Release Criteria? - This reflects a determination that the residual cleanup criteria cannot be met and will not allow release of the site for unrestricted use.

• Factor 6, Does Pr311minary Screening Suggest Thot Long-term Dose Impacts Exceed Dose Standards? - This facter reflects the significance of the dose assessment and the residual contamination, considering a pathways analysis. Factor 6 differs from Factor 5 in that Factor 5 involveu a comparison to establish criteria without the use of a pathways analysis. Factor 6 involves a pathways analysis / dose assessment.

It can be assumed that these RIPS should be considered for all sites although the degree of influence will vary from site to site.

2. Site Specific Influence Factors (SSIFs)

The document reviews and the interviews have revealed a set of common factors that are heavily dependent on site specific conditions. The remaining five influence factors in Tables 1 and 2 fall into this category. Each of the SSIFs is discussed below.

• Factor 7, Is There a Special Source Term? - This factor  ;

considers the presence and toxicity of significant quantities of unusual chemicals or radiological species such ,

as transuranic radionuclides, hazardous organic materials, or mixed waste. This factor also includes consideration of such attributes as chemical form (which may have an impact due to enhanced mobility of chemicals and radionuclides).

• Factor 8, Is Cost of off-Site Disposal Excessive? - Thms factor considers the influence that availability and cost of off-site disposal will have on the decision bases for the proposed alterrative.

• Factor 9, Are Large Quantities of Contaminated Material Proposed for Burial On-Site? - This factor reflects the volume of contaminated material if proposed for burial on site.

• Factor 10, Are there Socio-Economic Considerations? - This factor captures the influence of locating a facility in an area that is impoverished or contains a high percentage of minority residents (includes environmental justice considerations). In addition, other concerns, such as property value impacts, would also fa21 under this SSIF.

• Factor 11, Is There Heightened Public Interest? - This factor conside,rs the influence of heightened public interest 5

4 from local residents, public interest groups, and/or the news media.

• VI. APPLICATION OF INFLUENCE FACTORS TO SITES IN THE STUDY Nine documents were reviewed in this study and eleven major influence factors were identified as being potentially significant in the decision-making process regarding whether an l EIS should be prepared for a proposed licensing action. The results of the review are summarized in Tables 1 and 2. The

! first row of each table lists the sites associated with the documents reviewed. The first column of each table lists the influence factors. This organization results in a matrix, the elements of which indicate the influence that each factor had in the decision basis for each of the documents. These influence factors were not necessarily considered (or appropriate to be considered) in each proposed licensing action. However, certain factors have some relevance to all proposed licensing actions.

As expected from the diverse nature of the types of proposed actions reviewed, there is obviously a range of impacts that a particular influence factor might have on an individual licensing case. The scope of-this report does not permit an individual assessment of each influence factor for each document reviewed.

.VII. CONCLUSIONS OF STUDY-From this analysis, one can conclude that most of these factors have the potential to play a role -(and indeed may have played a role, even if undocumented) in the decision to develop the type of final environmental review (CATEX, EA, or EIS) produced. It wodld therefore seem to follow that, two proposed licensing actions with similar results from application of the eleven influence factors would, more often then not, result in the decision to produce a similar type of environmental review. In addition, the appearance of an affirmative (YES) response to an influence factor indicates that a factor should be addressed in whatever environmental review process and/or document chosen for the record. Of course the environmental impact of one element can be so overwhelming that it can drive the total decision toward producing an EIS.

Although it may be difficult to make quantitative judgements regarding the number of affirmative responses that infer the need to produce a particular kind of environmental review document, it appears certain that proposed actions with large numbers of influence factors having affirmative responses need to consider the higher level document (i.e., EIS).

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e e This, (or influences) methodology consideredprovides by most a basis for reviewing reviewers prior common factors to deciding the type of document that must be prepared for an environmental review. It should also be useful in developing a decision record. However, it can not serve as a tool for examining specific environmental documents to determine if the appropriate level of review was conducted, because it is impossible to re-create all the factors that went into that decision.

A. General Based on the similarity of the matrices in Table 1 and 2 for EIS and EA documents, the level of environmental review for the documents considered in this study appears, for the most part, to

- be not only appropriate but consistent in detail, in particular for the EISs.

In general, DWM staff has been consistent in its level of documentation for similar proposed actions.

B. Aeolication of Influence Factors to EAs The conclusions below were drawn from an evaluation of the similarities of elements in the matrices for the proposed environmental actions listed in the matrix of Table 1. 1 A comparison of the matrix elements for all of the five sites reviewed indicate that all of the sites have a small number of affirmative (YES) influence factors which infers that an EIS is probably not warranted.

C. Apolication of Influence Factory to EISs Review of the four EISs indicate a very high number of affirmative (YES) elements (50 to 75 percent) for all of the documents reviewed. This would strongly suggests that first, a higher--level document was warranted and second, production of an EIS requires that each of the influence = factors at least be addressed (such is done in an EIS). A specific finding of this review is the pr,sence of an unusual influence factor.for the Envirocare case. That factor is the existence of a new source term never before licensed by the Commission. This factor obviously had an influence on the decision to produce an EIS.

This affirmation shows up in SSIF 7 and a case could be made for including this as a separate SSIF in any future analysis.

Although it may seem intuitive, due to the small sample size of this study, the conclusion can not be drawn that RIFs should carry more weight in the decision to produce an EA versus an EIS.

In addition, although this review may indicate a lack of a common definition of a " major Federal Action" regarding the type of proposals reviewed, and which actions should require an EIS, 7

__._.__._______.____.______m.___7 there is at least evidence that EISa, for the most part are developed for the more complex issues requiring environmental -  :

review.

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j VIII. IMPACT OF THE NEW DECOMMISSIONING RULE NRC published its final rule establishing radiological criteria for license termination on July 21, 1997 (62 FR 39058). Prior to i the promulgation of this rule, decommissioning had been defined as, "to remove (as a facility) safely from service and reduce residual radioactivity to a level that permits release of the property for unrestricted use (emphasis added] and termination of (the) license." Therefore, a proposed remedial action that did

-not ineet NRC's criteria for unrestricted release needed an exemption from the regulations to approve the action. This reason is stated in both the decommissioning EISs reviewed for this study (B&W and Shieldalloy) as a decision basis for development. The new rule redefines adecommissioninga and establishes criteria for restricted releases. The impact of the new rule on the degree of influence of this RIF on future  ;

decisions is unclear.

IX. RECOMMENDATIONS

1. Each of the RIFs listed in Tables 1 and 2 should be addressed by-project-managers and organizational managers -,

prior to a. determination about what environmental decision  ;

document should be produced for a proposed licensing action; 1

2. SSIFs should be listed as part of the environmental review of proposed licensing actions;

3. An appropriate standard matrix should be developed for consideration by project managers and for discussion with organizational managers when proposed licensing actions are '

reviewed to determine what environmental process will be used; and

4. Barring consideration of- the recommendation in item - (3) , a <

i record should be developed and discussed prior to determining the document'to be produced;

5. DWM management should concur in a decision to initiate development of an EIS.

6. As a result of the new decommissioning rule, criteria should be established-for developing an EIS under conditions of restricted release.

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• X. ' DOCUMENTS REVIEWED A. Environmental Assessments

1. " Environmental Assessment-Related to The Proposed Removal of Thorium contaminated Slag Storage Piles at The Dow Chemical Company 5 Sites in Midland and Bay City, Michigan"

2. " Draft Environmental Assessment of the Proposed Decommissioning Plan for The Babcock and Wilcox Nuclear Environmental Services Inc., Facility in Parks Township, Pennsylvania" l

3. " Environmental Assessment of License Application for Onsite Disposal - Mixed Waste Pond Closure Project at the BP Chemicals Plant Lima, Ohio"

4. " Supplemental Environmental Assessment Concerning Flow Rate Increase for Crow Butte Resources, Insitu Leach Facility"

5. " ARCO Disposal of Polychlorinated Biphenyl contaminated Waste" B. Environmental Imnact Statements

1. " Draft Environmental Impact Statement, Decommissioning of thr$ Shieldalloy Metallurgical _ Corporation, Cambridge, Ohio, ,

Facility"

2. " Draft Environmental Impact Statement Related to Reclamation of the Uranium Mill Tailings at the Atlas Site, Moab, Utah"

3. " Final Environmental Impact Statement to Construct'and operate the Crownpoint Uranium Solution Mining Project"

4. " Final Environmental Impact Statement to Construct and Operate a Facility to Receive, Store, and Dispose of 11e.(2)

Byproduct Material Near Clive, Utah" 9

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Table 1 i

SUMMARY

OF INFLUENCE FACTORS ENVIRONMENTAL ASSESSMENTS INFLUENCE DOW B&W, PARKS BP CROW BUTTE ARCO FACTOR CHEMICAL TOWNSHIP CHEMICALS RESOURCES Regulatory Influence Factors

1. Is the Proposed Action No No No No No Listed in 51.22 as a CATEX?

2. Is an EIS Required by No No No No No  ;

Commission Direction or by 51.20?

3. Will Meeting Cleanup No No No No No i

Criteria Require Large  !

l, Cost? ,

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4. Are Ground Water No No No No No Contaminants A Significant '

Fraction Of Standard?

5. Does Proposed Action No Yes No No No

, Exceed Unrestricted Release Criteria?

6. Does Preliminary No No Yes No No I i Screening That Suggest l Long-term Dose Impacts Exceed Standard'> '

Site Specific Influence Factors  !

7. Is There a Special No Yes Yes No Yes Source Term?

8. Is Cost of Off Site No No No No No Disposal Excessive? .

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.i Table 2

SUMMARY

OF INFLUENCE FACTORS ENVIRONMENTAL IMPACT STATEMENTS INFLUENCE ATLAS CROWNPOINT ENVIROCARE SHIELDALLOY FACTOR Regulatory Influence Factors

1. Is the Proposed Action Listed in No No No No 51.22 as a CATEX?

2. Is an EIS Required by Commission No No No No Direction or by 51.20?

, 3. Will Meeting Cleanup Criteria Yes No No Yes l Require Large Cost?

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4. Are Grour.d Water Contaminants A Yes Yes No No Significant Fraction of Standard?

5. Does Proposed Action Exceed No None Yes Yes Unrestricted Release Criteria? Proposed

6. Does Preliminary Screening Yes N/A Yes Yes Suggest That Long-term Dose Impacts Exceed Standard?

Site Specific Influence Factors

7. Is There a Special Source Term No No Yes Yes

8. Is Cost Of Off Site Disposal Yes No Yes Yes Excessive?

9. Are Large Quantities of Yes N/A Yes Yes Contaminated Material Proposed For On Site Burial?

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APPENDIX A ACTIONS AND REQUIREMENTS ASSOCIATED WITH THE

DEVELOPMENT OF AN ENVIRONMENTAL IMPACT STATEMENT

Notice of Intent Following the determination that an environmental impact

] statement (EIS) will be prepared. A notice of intent (NOI) to i

prepare an EIS must be published in the Federal Recister. The ,

requirements for an NOI are contained in 10 CFR 51.27. i Scocino Process /Recort

[ The scoping process, conducted in accordance with'10 CFR 51.28 I and 51.29, is an opportunity for public participation in

identifying the concerns and 1ssues that should be included in the EIS. The scoping process may include a public scoping -

meeting. At the conclusion of the scoping process, a report is

prepared which summarizes the determinations and conclusions l reached, including the significant issues identified. A copy of 3

the report is sent to each participant in the scoping process, i

Environmental Imoact Statement The EIS is prepared in two versions, a draft and a final, with an i intervening public comment period. The EIS is normally the

result of the staff's review of an environmental report submitted l by the licensee. The staff independently evaluates, and ja .

j responsible for the reliability of, all information in the EIS. .

i i NRC's general requirements for the draft EIS (DEIS) are contained

. in 10 CFR 51.70. The format of the DEIS is specified in Appendix i i A of this Part.

.The DEIS is prepared in accordance with the scope decided upon in the scoping process-and addresses the following topics:  ;

['

• Cossideration of major points of view concerning the r l environmental impacts of the proposed action and the

, alternatives and includes an analysis of significant i . problems and objections raised by interested and affected  :

groups / individuals.

• A list of all Federal permits, licenses, approvals, and other entitlements which must be obtained in connection with the proposed action and a description of the status of compliance with these requirements, i

• An analysis which considers and balances the environmental effects of the proposed action and the alternatives

available for reducing or avoiding adverse environmental

effects, as well as environmental, economic, technical, and

! other benefits of the proposed action.

[

• A preliminary recommendation concerning the proposed action.

In lieu of a recommendation, the staff may indicate that two or more alternatives remain under consideration.

The DEIS is distributed in accordance with S51.74 and a notice of availability is published in the Eederal Reaister. A minimum public comment period of 45 days follows.

After receipt and consideration of comments; the staff prepares a final EIS (FEIS) in the same format as the DEID. NRC s general requirements for the FEIS are contained in 10 CFR 51.90 and 51.91. The FEIS includes:

• All substantive comments received on the DEIS.

• Responses to any comments received on the DEIS. Responses may include modification of alternatives, development and evaluation of additional alternatives, revised analyses, factual corrections, and explanation of why comments do not warrant further response.

• A discussion of any relevant opposing view not adequately discussed in the DEIS.

• A statement of how the alternatives considered in it and the decisions based on it will or will not achieve NEPA requirements.

• A final recommendation on the action to be taken.

The FEIS is distributed in accordance with S51.93 and a notice of availability is published in the E_ederal Benister.

Record of Decision NRC's regulations (10 CFR 51.102) require that any action for which an FEIS has been prepared shall be accompanied by or include a public record of decision (ROD). NRC's general requirements for the ROD are located in 10 CFR 51.103.

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