ML20214P394
| ML20214P394 | |
| Person / Time | |
|---|---|
| Issue date: | 09/08/1986 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| TASK-PINC, TASK-SE SECY-86-266, NUDOCS 8609190060 | |
| Download: ML20214P394 (44) | |
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- i POLICY ISSUE (NEGATIVE CONSENT)
September 8, 1986 SECY-86-266 For:
The Commissioners
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From:
Victor Stello, Jr.
Executive Director for Operations
Subject:
STAFF REVIEW 0F DRAFT ENVIRONMENTAL IMPACT STATEMENT ON HANFORD DEFENSE WASTES
Purpose:
To request Commission approval of the enclosed comments
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on the U. S. Department of Energy's draft environmental
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impact statement entitled Disposal of Hanford Defense High-d Level, Transuranic and Tank Wastes, 00E/EIS-0113.
Discussion:
The U. S. Department of Energy (DOE) issued for public comment, a draft environmental impact statement (DEIS) entitled Disposal of Hanford Defense High-level, Transuranic and Tank Wastes, in March 1986.
DOE has requested comments by August 9, 1986.
The DEIS provides analyses of environmental impacts for the selection and implementation of a final disposal strategy for the high-level, transuranic and tank wastes generated by national defense activities at the Hanford site.
The DEIS presents three disposal alternatives for the Hanford " tank wastes:"
(1) the geologic disposal alternative which involves retrieval and disposal of most (98 percent by activity) of the Hanford wastes in a deep geologic repository; (2) the in place stabilization alternative which is to permanently
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fix in place all existing and newly generated wastes and to use a protective barrier and marker system to achieve waste isolation; and (3) the reference alternative, a combination of the first two, in which readily retrievable wastes (wastes in double-shell tanks) would be removed and processed for disposal in a geologic repository and wastes which are difficult and/or hazardous to retrieve (solid wastes in the single-shell tanks) would be left in place.
The staff has reviewed the DEIS in accordance with its responsibilities under NEPA (40 CFR 1503.2) and has prepared written comments. The forwarding letter to DOE and the staff comments are enclosed (Enclosures 1 and 2).
The staff's forwarding letter informs DOE of some of the important legal and institutional difficulties the staff foresees with disposal of HLW using an alternative other than disposal in a deep geologic repository.
Some difficulties include the need to develop appropriate licensing standards and procedures, the existing fait accompli status of the waste tanks, and the difficuTEy in reasonably evaluating alternatives (e.g., alternative sites) as required by the National Environmental Policy Act.
Further complicating matters, the statutory language i
of 42 U.S.C. S 7272 could be read to bar the NRC from expending funds for purposes related to the licensing of DOE defense waste management activities.
Some of these issues have been raised previously in a letter from the Executive Legal Director, U. S. Nuclear Regulatory Commission to the Assistant General Counsel for Environment, U. S. Department of Energy dated February 12, 1986 (Enclosure 3).
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t The principal technical points made by the staff in the proposed comments are that:
(1) additional characterization of the wastes in the single-shell tanks should be completed prior to the selection of a disposal alternative; (2) further studies should be conducted on the effectiveness of the proposed protective barrier and marker system; (3) more information should be obtained on the geochemical characteristics of the site; and (4) improved analytical models for projecting waste transport should be developed.
In addition to these points, the staff noted that even though the DOE acknowledges that additional research and development is needed in some areas, it is not clear which decisions covered by the DEIS will be postponed pending completion of the additional research and development.
Although NRC staff does not prejudge the disposal of HLW, in situ, in the Hanford tanks, we believe establishing the TeasT5Tlity of such disposal as technically adequate to protect the public health and the environment will be exceedingly difficult and may not be achievable.
The Office of the General Counsel has reviewed this paper and concurs in its contents.
Recommendation:
That the Commission approve the enclosed letter and comments.
The staff intends to send the letter in 10 working days unless instructed otherwise by the Commission.
9 V c or Stbilo, Jr,/
Executive Direct for Operations
Enclosures:
1.
Forwarding letter to DOE 2.
Staff comments 3.
ELD letter to DOE I
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SECY NOTE:
In the absence of instructions to the contrary, SECY will notify the staff on Tuesday, September 23, 1986 that the Commission, by negative consent, assents to the action proposed in this paper.
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1 Mr. R. A. Holten U. S. Department of Energy Richland Operations 0ffice Waste Management Division Richl.ind, WA 99352 d
Dear Mr. Holten:
The U. S. Nuclear Regulatory Commission (NRC) staff has reviewed the U. S.
Department of Energy's (DOE) draft environmental impact statement (DEIS) entitled Disposal of Hanford Defense High-Level, Transuranic and Tank Wastes, DOE /EIS-0113. On the basis of our review, the NRC offers the enclosed general and detailed comments. Although not part of our comments on the draft EIS, the NRC also wishes to express its concerns regarding other legal and institutional issues related to the concept of in situ disposal of high-level wastes (HLW) at Hanford.
' First, as you are aware, under Section 202(4) of the Energy Reorganization Act of 1974, any facilities expressly authorized for disposal of defense high-level wastes are subject to the licensing and related regulatory authority i
of the Commission. Whether the express authorization for particular facilities is legislative or administrative in our judgment has no bearing upon the concerns that led Congress to provide for ifcensing by NRC. Also, it appears that the Hanford " tank wastes," which from the information presented in the draft EIS would have been regarded as HLW when the Energy Reorganization Act was passed, remain HLW for purposes of determining whether or not.NRC has such jurisdiction.
If DOE believes that subsequent processing of the " tank wastes" may have altered the classification of some of the materials being stored, more detailed waste characterization information would be necessary to support that view.
Second, licensing of Hanford waste tanks for HLW disposal will be procedurally complex because of the need to develop appropriate standards and procedures, the existing fait accompli status of the waste tanks, and the difficulty in reasonably evaluating alternatives (e.g., alternative sites) as required by the National Environmental Policy Act.
Other statutes would also need to be considered, including one provision (42 U.S.C. S 7272) which could be read to bar the expenditure of funds for purposes related to the licensing of defense waste management activities such as those that might be undertaken at Hanford.
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Although NRC staff does not prejudge the disposal of HLW, in situ, in the Hanford tanks, we believe establishing the feasibility of such disposal as technically adequate to protect the public health and the environnent will be exceedingly difficult and may not be achievable.
Consequently, nothing in our comments should be read as NRC agreement or endorsement of such disposal.
In addition, our comments at this stage do not restrict NRC from making additional comments in the future, when or as appropriate.
Thank you for providing the opportunity to comment on the Hanford Defense Waste DEIS. We hope that these comments will be of assistance in preparing the final environmental statement. We would be pleased to discuss the comments with you and members of your^ staff if you desire.
Sincerely, Robert E. Browning, Director Division of Waste Management Office of Nuclear Material Safety and Safeguards
Enclosure:
NRC's General and Detailed Comments on the DEIS
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O ENCLOSURE 2
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COMMENTS OF THE U. S. NUCLEAR REGULATORY COMMISSION ON THE U. S. DEPARTMENT OF ENERGY'S j
DRAFT ENVIRONMENTAL IMPACT STATEMENT RELATED TO DISPOSAL OF HANFORD DEFENSE HIGH-LEVEL, TRANSURANIC AND TANK WASTES (00E/EIS-0113)
PUBLISHED MARCH 1986 1
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GENERAL COMMENT
S It is stated in the DEIS (p. 1) that the purpose of the EIS is "to provide environmental input into the selection and implementation of thu rinal disposal actions for high-level, transuranic and tank wastes located at the Hanford Site." The document goes on to state that the DEIS is."both a programmatic EIS
- intended to support broad decisions with respect to the disposal strategies for the Hanford waste" and "an implementation EIS intended to provide project specific environmental input for decisions on moving forward with certain disposal activities" (p. xiii). The DEIS further indicates that following publication of the Final EIS, the DOE "will begin selection of a Hanford Defense Waste final disposal strategy which will be documented in one or more Records of Decision.
The DOE may decide to proceed with implementing certain parts of the strategy while delaying final decision on other parts pending further research and development" (p. xiii).
This approach makes the review of the document difficult because it is unclear which areas will receive additional research and development and how the results of these research and development efforts will be factored into the decisian-making process.
The DEIS indicates that further NEPA review is anticipated to support certain other specific activities prior to their implementation but the document does not indicate which activities this would apply to, what the additional review would consist of, or when it would occur. The NRC staff recommends that the Final 1
EIS clearly identify which decisions will be postponed pending completion of additional research and development, when these activities are likely to be completed, and the type of NEPA review that is anticipated.
The NRC agrees with DOE that several areas require additional research and development prior to making decisions concerning the disposal of the Hanford wastes. These include:
(1) characterization of the wastes in the single-shell tanks; (2) long-term performance of the protective barrier syster.;
(3) geochemical characteristics of the site; and (4) development of analytical capabilities for projecting waste transport.
Each of these is discussed below.
Characterization of single-shell tank wastes The DEIS no.es (p. 3.5), and the NRC staff agrees, that additional characteriz.' tion of wastes in the single-shell tanks will be necessary to provide more Jetailed information about waste inventories. The NRC recommends that the waste; also be characterized, to the extent practicable, by their sources in fuel ceprocessing operations.
If, for example, certain tanks contain wastes from the operation of the first cycle solvent extraction system, then these wastes would clearly be considered as high-level wastes. However, if some of the tanks contain predominantly incidental wastes such as cladding removal wastes or organic wash wastes, and if the radionuclide concentrations in these wastes are comparabla to other low-level wastes, these wastes might not be properly classified as high-level wastes.
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2 After the ccmpletion of the waste characterization program, the NRC recommends that the selection of a disposal alternative be made on a tank-by-tank basis.
Information presented in Appendix A (Tables A.4 and A.5) of the DEIS suggests that a large fraction of the total curie inventory of single-shell tank wastes may be contained in only a few tanks.
If this is accurate, a substantial fraction of the total radionuclide inventory could be retrieved at only a small fraction of the cost presented in the DEIS.
Furthermore, if some or all of the tanks with large inventories are in sound condition and do not leak, wastes could be retrieved by sluicing, further reducing the cost of waste retrieval.
In summary, the NRC agrees that additional waste characterization should be t
completed in order to (1) properly classify wastes as high-level or non-high-level, and (2) permit selection of a disposal alternative which is most appropriate for each tank of waste.
Long-term performance of protective barrier system As noted in the DEIS (p. 1.14), the protective barrier and marker system is the key to effectively isolating froa the environment wastes that are disposed of near-surface. Two of the three disposal alternatives that are considered in the DEIS (i.e., the in place stabilization alternative and the reference alternative) rely heavily on the capability of the proposed protective barrier system to minimize water infiltration and to reduce the likelihood of plant, animal, and human intrusion.
Indeed, it is the view of the NRC that near-surface disposal of many of the Hanford wastes would likely pose unacceptable risks to public health and safety unless substantial protection is provided by such barriers. The DOE acknowledges (DEIS, p. M.2) that a specific barrier design has not yet been determined.
The DEIS further notes that the DOE will conduct a NEPA review of the final specific barrier to evaluate its anticipated performance as designed and its performance under perturbed conditions. This review is to be based on actual laboratory and field data.
The NRC encourages the DOE to conduct these further studies to resolve uncertainties with respect to the effectiveness of the barriers.
Our detailed comments list some of the aspects of barrier design and performance which should be addressed in these studies.
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3 Geochemical characteristics of the site The DEIS is replete with statements that indicate a lack of geochemical data for the site.
The DOE acknowledges (DEIS, p. 0.7) that the absence of this data precludes a more rigorous analysis of the environmental effects of the proposed alternatives.
It is recommended that sufficient data be available to support the analyses of environmental impacts presented in the DEIS before decisions are implemented.
Developnent of analytical capabilities for projecting waste transport The DEIS recognizes that the linear distribution coefficient (Kd) modeling approach is a potential technical limitation in modeling efforts because it combines several geochemical processes into a single empirical parameter.
The DOE indicates that additional developmer.t work is being pursued on the models.
As indicated above with regard to the geochemical characteristics of the site, it is recommended that sufficient model development be completed to support the estimates of environmental impacts set forth in the DEIS before decisions are implemented.
Finally, the NRC agrees with the position stated in the DEIS (p. 6.11) that to the extent that any decision based on the DEIS (and subsequent final environmental statement) requires defense high-level waste to be placed in a facility which is authorized for the express purpose of subsequent long-term storage, such a facility would have to comply with any applicable licensing requirements of the NRC. Notwithstanding any comments presented here, NRC may (1) incorporate into any license that may be issued at a later date conditions that may reflect a more restrictive position than that taken in these comments; or (2) deny a license for activities at a proposed facility.
4 DETAILED COMMENTS DISPOSAL OF TRU WASTES WITH CONCENTRATIONS BELOW 100 NCi/GM The NRC staff is concerned about disposal of wastes with TRU concentrations below 100 nCi/gm (e.g., Section 3.3.1.4, paragraph 1). Disposal of such wastes may require better protective measures than are evidenced in this DEIS.
For example, NRC's analyses in support of 10 CFR Part 61 showed that Class C wastes, including wastes with TRU concentrations between 10 and 100 nCi/gm, must be disposed of using a stable waste form and the disposal facility must either permit emplacement at least 5 meters below the ground surface or must include an engineered intruder barrier. The staff encourages the DOE to consider the results of the Part 61 supporting analyses when developing disposal concepts for such wastes.
(The staff notes that, for other projects, the DOE has committed itself to comply with the 10 CFR Part: 61 performance objectives for disposal of low-level wastes.
See, for example, the Proposed Finding of No Significant Impact, Disposal of Project Low-Level Waste, West Valley Demonstration Project, West Valley, New York, April 1986.)
PROTECTIVE BARRIER AND MARKER SYSTEM Appendix M Preliminary Analysis Of The Performance Of The Protective Barrier And Marker System The NRC staff recognizes that substantial research and development of barrier concepts remains to be completed before a decision can be made to implement either the in place stabilization or the reference alternative. The following t
concerns regarding the design and performance of barriers should be considered during DOE's future barrier research and development efforts.
Overall Barrier Design The barrier design shown in Figure M.3 of Appendix M is based on construction of a multilayer capillary (or " wick") barrier that is intended to reduce deep drainage. The key to this design is a layer of very coarse gravel or rock with an overlying revegetated layer of fine-textured scil. Under ideal conditions this multilayer design can minimize infiltration rates by trapping fluids in the uppermost soil layer and subsequently removing soil moisture through evapotranspiration.
Such a cover is only effective to the extent that l
hydraulic pressure within the wick is insufficient to cause a breakthrough into the pervious layer beneath the wick.
If breakthrough occurs the pervious layer must direct water horizontally so that it will not migrate further down toward l
the waste.
In order to do this, the base of the pervious layer must have adequate slope, probably greater than 5 percent. Such a slope is not apparent j
in the barrier design of Appendix M.
It should be noted further that a wick design should be based on extreme precipitation events rather than average annual precipitation. Wetting fronts and subsequent breakthrough are likely to occur during storms with infrequent return periods. Given the time period during which this barrier must be effective, it is prudent to design it for a storm with a very low recurrence interval (e.g.,1000 yr, 24 hr storm).
5 The DEIS also states that the barrier would restrict penetration by plants and animals into the waste, because of the rock and absence of moisture beneath the wick. The staff is concerned, however, that even shallow burrowing within the upper soil layer (down to the rock) could impair the effectiveness of the wick as a moisture barrier.
The DOE should investigate means for preventing or minimizing burrowing within the barrier.
Potential for Erosion It appears that little or no consideration has been given to the potential for erosion of the soil cover of the protective barriers due to the occurrence of local intense precipitation.
Several long-term stability investigations perforred for the NRC staff indicated that the most disruptive natural phenomena affecting long-term stabilization are likely to be wind and water erosion (Nelson et al.,1983; Young et al.,1982; Lindsey et al.,1982; and Beediow,1984). These studies also indicated that wind and water erosion can be mitigated by a rock cover of reasonable thickness and that the size of the rock chosen for the protective cover will normally be controlled by a design precipitation or flood event.
The NRC staff considers it very important that adequate erosion protection be provided to prevent the occurrence of sheet erosion and the initiation of gul'y erosion. Gully erosion, once initiated, can cause extensive damage to any soil cover, such that previous assumptions regarding infiltration, biotic intrusion, erosion, and releases of radionuclides may no longer be valid.
On the basis of NRC staff experience with long-term stabilization in arid regions of the western United States, it is very unlikely that the proposed vegetative cover will provide adequate protection to prevent the occurrence of gully erosion (Nelson et al., 1983).
In general, a rock cover is usually needed to provide such protection. A mixed rock / soil cover might provide similar protection while also allowing growth of a vegetative cover.
The NRC staff recommends that such a protective cover be considered.
To address various uncertainties and provide for a conservative design basis, it would be prudent for the DOE to design the rock cover for an occurrence of localized intense precipitation as previously discussed.
Long-Term Stability The performance of the barrier shown in Figure M.3 of Appendix M is dependent on the overall structural integrity of the barrier system and on the maintenance of interlayer textural differences.
It is not known whether these factors can realistically remain stable over a time scale of 10,000 years.
Even if structural integrity of the barrier can be maintained over this time scale, downward infiltration of fine grained soil materials into voids of the gravel layer could compromise the barrier effectiveness by altering textural differences in the capillary barrier.
This could occur through gradual settling or minor subsidence of the protective barrier after construction.
(The structural stability of waste tanks is of particular concern in this regard.) Other mechanisms for altering textural differences would include biogenic activity (discussed above), and liquefaction of the base of the soil cover if it is near saturation and experiences significant seismic accelerations.
6 It is noted that overall de,terioration of the capillary barrier would be accelerated by any physical rupture of the barrier, as perhaps induced by vibratory ground motions or by the intrusion of man.
Such a physical rupture would allow direct influx of runoff and precipitation through and beneath the barrier.
In that event, contaminant transport within the vadose zone beneath the protective cover could be increased significantly.
In summary, the NRC staff considers that many uncertainties remain unresolved regarding long-term performance of a capillary barrier. Substantial additional research and development of barrier concepts must be eompleted before a preferred alternative can be selected for actual disposal of wastes.
Volume 2, Foreword, page xxxiv, paragraph 2 The assumption that the single-shell tanks remain integral for 165 years is both arbitrary and unsubstantiated. As stated in the DEIS: "an arbitrary assumption has been made that none of the tanks provides a barrier after the year 2150. This is equivalent to assuming the tanks provide a barrier to significant levels of vapor phase transport of moisture for another 165 years."
The DEIS goes on to state that there are "no data to suggest that significant releases from the solid waste form are currently occurring." This may indeed be correct. However, there are data which show that releases have occurred from these tanks in the past. Based on historical difficulties with the integrity of the single-wall tanks, the highly soluble waste form they contain, and the lack of data supporting the integral tank assumption, it would be prudent to assume that properly backfilled tanks will provide only the structural stability necessary to inhibit slumping, collapse, or other failure of the disposal site. While the proper backfilling of tanks is'necessary for structural stability, it will not significantly inhibit water infiltration or radionuclide release.
Appendix M, Section M.4, Reduction in Risk of Inadvertent Intrusion Through Passive Institutional Controls, page M.12, paragraph 1 The Final Environmental Impact Statement on 10 CFR Part 61, " Licensing Requirements for Land Disposal of Radioactive Waste" (NUREG-0945, 1982),
indicates intruder pathways dominate the potential health effects from commercial low-level radioactive waste disposal. Appendix R (p. R.1) of the DEIS recognizes a similar effect, in that " scenarios involving contact with or intrusion into waste... predict significant adverse or fatal consequences to those ignoring warnings and intruding into the wastes." However, the DEIS puts considerable reliance rh the passive institutional controls described in Appendix M to avoid the intruder problem. The arguments supporting reduction in the risk of inadvertent intrusion are very weak:
"The risk reduction factors presented here are based solely on the author's judgment; at present there are neither empirical nor theoretical models upon which these risk reduction factors can be based."
l The Final EIS should provide a stronger basis to support the effectiveness of the proposed barriers as a deterrent to inadvertent intrusions.
7 Appendix M, Section M.4, Reduction In Risk of Inadvertent Intrusion Through Passive Institutional Controls, page M.11 This section presents factors by which the risk of human intrusion into wastes is estimated to be reduced by different protective means. When more than one means is present, these factors are then multiplied together to obtain an overall risk reduction factor.
The NRC staff considers that failure of some of the protective means (e.g.,
boundary markers and monuments) might result from the same primary cause (e.g.,
evolution of the language so that the meaning of the markers and monuments would no longer be understood).
The potential for such " common-mode failures" indicates that multiplication of the individual protective factors to obtain an overall risk reduction factor is not appropriate.
The method for combining the individual protective factors should accommodate the possibility that a single primary cause might render two or more of the protective mechanisms ine f fective.
REGULATORY Volume 1, Foreword, page v, paragraph 7 The NRC staff is concerned about the long-term cumulative effects of all
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ongoing and reasonably foreseeable waste disposal activities at the Hanford Reservation. The defense wastes, which include high-level and transuranic wastes, are already present and in need of permanent disposal. 'As stated on page y of the Foreword, the scope of the DEIS excludes low-level radioactive wastes in liquid and solid disposal sites at Hanford. Also excluded are wastes generated by the decontamination and decommissioning of surplus or retired facilities (post-1983).
It is stated that those operations will be the subject of other National Environmental Policy Act (NEPA) reviews.
It is not clear why the DOE evaluated the environmental impacts of defense waste disposal alternatives without consideration of the cumulative effects of all existing and reasonably foreseeable activities. On page vii of the Foreword it is stated that, if the BWIP site were to be selected as a candidate site for repository development, a corresponding EIS would be written to support that site and to address cumulative impacts of that and other reasonably foreseeable activities on the Hanford Site. Why does the Defense Waste DEIS differ in that cumulative effects of all current waste disposal activities at Hanford are not addressed?
8 Section 3.4, Comparison of Impacts From Alternatives, pages 3.33-3.65 i
The DOE's proposals for permanent disposal of defense wastes at Hanford may pose special problems with respect to the NRC's current and future reviews and licensing decisions involving BWIP as a candidate site for the high-level waste geologic repository.
For example, the DOE is required to develop a Performance Confirmation Program for BWIP to provide data that indicate, where practicable, whether subsurface conditions encountered and changes resulting from construction and waste emplacement are within limits assumed in the licensing review and that natural and engineered systems and components are functioning as intended.
Some of the actions proposed in this DEIS could potentially make a BWIP Performance Confirmation Program more difficult to design and carry out.
For example, the barriers proposed for in place stabilization of wastes may reduce infiltration to the unconfined aquifer system, potentially altering groundwater flow conditions. The Final EIS should include, in the discussion of impacts, possible effects of the proposed alternatives on licensability of a high-level waste repository at the BWIP site.
Section 6.6, Resource Conservation and Recovery Act, pages 6.10 and 6.11 In this section the DOE suggests that all of the waste covered in the DEIS is byproduct material and therefore not subject to subtitle C of the Resource Conservation and Recovery Act (RCRA).
Throughout the text, however, the DOE acknowledges in numerous instances that the waste contains materials that are considered hazardous, dangerous and/or toxic by the EPA.
In section 6.6 the DOE appears to be relying on a legal interpretation of authority rather than a technical analysis of hazard to make the conclusion that RCRA does not apply.
Since no final determination has been made concerning the EPA and/or primary state authority regarding the disposal of this material, it would seem prudent that the DOE at least consider the impacts of the prescriptive disposal and monitoring requirements that would be mandated by RCRA.
HYDROLOGY Section 4.4.1, Surface Waters, page 4.12, paragraph 2 The flood analyses and information provided in the DEIS indicate that facilities may be exposed to a potential flood threat from Cold Creek, since portions of the site may be flooded by a 100 year flood.
It therefore appears that the requirements of Executive Order (E. 0.)
11988, " Floodplain Management", have not been addressed.
This E. O. requires, among other considerations, that the hazards and impacts associated with siting in a floodplain be identified and evaluated. Accordingly, an outline of the procedures involved in this decision-making process should be provided, and compliance with E. O. 11988 should be discussed.
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Section 4.4.1, Surface Waters, page 4.12, paragraph 2 Results of flood studies in the Cold Creek watershed (Skaggs and Walters, 1981) indicate that a potential for flooding of portions of the site exists. As proposed, it appears that several facilities may be placed in an area of the Cold Creek floodplain, which could be inundated by several feet of water.
Based on an examination of the Skaggs and Walters report, it appears that the magnitude of flooding on Cold Creek may be underestimated.
The Probable Maximum Flood (PMF) was estimated in the report to have a magnitude of 55,000 cubic feet per second (cfs) at the site where the drainage area is about 86 square miles. Review of historic flood data for arid regions of Washington and Oregon with similar climates and weather patterns indicates that a flood of this magnitude has occurred on a stream with a drainage area of about 13 square miles, located less than 150 miles from the site.
In recognition of the fact that the Cold Creek basin could have different flood producing characteristics from the stream that produced the historic maximum discharge, it is nevertheless important that the PMF represent an upper bound of flood potential for a particular stream.
It appears that this upper bound is not well-defined for Cold Creek.
In addition, maximum water levels will be increased as a result of increased PMF discharge and may also be increased by site location in the flood plain.
The amount of increase in water level due to flood plain constriction has not been discussed in the DEIS. On the basis of topographic and cross-sectional examination of the site area, surface facilities may be subject to flooding and may constrict the flow area in the flood plain.
This may increase the water levels associated with major floods; this increased level and its potential impacts should be discussed in the Final EIS.
Section 4.4.2, Groundwater, page 4.18, Figure 4.8 Isoheads indicate a potential for migration of waste from the 200-W area to the existing commercial low-level waste facility situated near the southwest corner of the 200-E area. This may adversely impact groundwater monitoring activities associated with that facility.
Appendix R, Section R.7, Other Surface Flooding, page R.92, paragraph _1 Disposal alternative #2, and in some respects alternatives #1 and #3 (page fx, Executive Summary), present disposal scenarios similar to the burial of high-level waste in a shallow land disposal site. All or some of the high-level and low-level wastes would remain at shallow depths below the ground surface. Consequently, the waste may be subject to near-surface natural phenomena.
The draft EA for the proposed disposal of high-level wastes at Hanford concluded, and the NRC agreed, that proglacial catastrophic flooding associtted with the melting phase.of glaciatton would not likely occur during the 10,000 year isolation period.
However, other consequences of either significantly warmer or cooler climatic trends could result in adverse environmental conditions at the Hanford Site.
for example, future climatic
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10 variations may cause increased sediment loads in the Columbia River and its tributaries, resulting in possible channel migrations. These possible adverse conditions are discussed in major comment #2 of NRC's comments on the draft EA for Hanford (NRC,1985a) and should be considered in the defense waste Final EIS.
Appendix S, Section S.2, Radionuclide Releases to Accessible Environment, page S.6, paragraph 2 From dit:ussions in the DEIS, it is unclear whether the drier-climate scenario is, considered representative of either the Holocene (recent) climate at Hanford or of conditions drier than at present. Assumed log-normal probability density functions for annual groundwater recharge were described for both drier and wetter climate scenarios over the next 10,000 years. The drier climate scenario was assumed to have a median annual recharge of 1.5 cm, whereas the value for the wetter climate scenario was assumed to be 5.0 cm.
If it is intended that the drier climate scenario is representative of recent conditions, what is the basis for the assumed median annual recharge of 1.5 cm?
On pages 4.19 and 4.20 it is stated that the annual average recharge from precipitation on the 200 Areas plateau has not been established to date, but two sets of lysimeter measurements are expected to resolve this question within 4 to 5 years.
It was also stated that DOE expects that the value will lie within the range of 0.5 to 5.0 cm/yr based on data to date.
In summary, with regard to future climate scenarios, the Final EIS should contain a discussion that more clearly defines and differentiates between the terms " drier" versus " wetter." Also, more information should be included about uncertainties in assumed values for ranges and median values of future annual recharge for the Hanford Site.
Appendix S, Section S.5 Results, page S.24, paragraph 3 It is stated that the composite release-ratio / probability curves show tnat the in place stabilization and disposal alternative and the reference alternative meet the EPA standard at the 99.9 perce-tile.
This conclusion is not adequately supported.
Specifically, over the next 10,000 years, it is assumed that a drier climate scenario is nine times more probable than a wetter climate scenario (0.9 vs.
0.1; combined probability = 1.0).
No basis for this assumption is given and no relevant references are cited in the appendix.
This assumption biases the i
results of the composite release curves (Figure S.10) in favor of a drier climate with its implications of reduced rechar; infiltration, and contaminant transport. The rationale for assigning such a high probability to dryer climate scenarios should be explained in greater detail.
11 GEOCHEMISTRY Ag endices 0, P. and Q, Transport and Attenuation Modeling The DOE recognizes that the total Kd (distribution coefficient) modeling approach is a " potential technical limitation" in modeling efforts (DEIS, Vol.
3, p. 0.15) which has "come under severe criticism recently" (DEIS, Vol. 2, p.
xxxii) because it combines complex geochemical processes into a single empirical parameter.
This methodology is used, however, because of the
" limited data base" at Hanford (DEIS, Vol. 2, p. xxxii).
It is the NRC staff's position that the lack of data for more complex models and codes is not, by itself, a sufficient basis for using simplifying models and assumptions.
I I
Rather, the DOE should also demonstrate that the simplified models and assumptions are sufficiently realistic (or conservative) to support the decisions to be made using them.
The DEIS states that the DOE is developing more complete and advanced transport and attenuation models (DEIS, Vol. 3, pp.
0.15,P.3).
The DOE should use these new models to evaluate the accuracy of the simpler Kd modeling approach.
Areas of concern pertaining to the DEIS modeling methodology include the following. The DOE does not show that the Delegard and Barney (1983) K values d
are directly applicable to the transport and attenuation models in the DEIS.
The Delegard and Barney (1983) study illustrated the effects of certain waste components on the sorption properties of Hanford soils under specific laboratory conditions, but did not attempt to duplicate the ambient and expected site geochemical conditions at the Hanford Site.
Delegard and Barney (1983) state that their K values are valid only within the range of their test d
conditions and that sl.ight changes in waste composition can change migration rates by a factor of 13 to 40.
Kelmers (1984) notes that in measuring laboratory K values it is " essential that test materials and conditions d
duplicate those to be encountered in the field situation being evaluated." It appears that this criterion is not met.
The contaminant transport assessment calculations do not account for all factors which can influence contaminant retardation. Changing site geochemical conditions due to spatial variation in groundwater or soil chemistry (DEIS, Vol. 3, pp. 0.35, Q.9, V.9) or to the introduction of contaminants (DEIS, Vol.
3, p. 0.37) will change the scrption characteristics of the Hanford Site.
Kinetics of sorption-desorption reactions are not accounted for, nor is mass action competition for sorption sites. Additionally, the effect of naturally occurring organic material, which may be important in sorption and transport processes at Hanford (Toste and Myers, 1986), has not been examined.
To perform a thorough transport assessment at the Hanford Site, the DOE should examine the impact of changing geochemical conditions on contaminant retardation and assess the effect of those geochemical processes not accounted for by their current methodology.
Limitations in the Hanford geochemical data base also limit the DOE to the use of contaminant release models that do not explicitly account for solubility limits as dictated by the current and expected site geochemical conditions
12 (DEIS, Vol. 2, pp. xxxi and xxxii; Vol. 3, pp. P.1, P.11).
Release 4
concentrations used in the DEIS are described by the DOE as being conservative estimates on the basis of data available in the literature (DEIS, Vol. 2, p.
xxxii).
Future release models, which the DOE states will take into account waste form release characteristics (DEIS, Vol. 3, p. P.18), should be incorporated into future impact assessment calculations.
Appendices 0 and U, Hanford Site Geochemical Conditions The DEIS does not demonstrate that the ambient geochemical conditions and the composition of the tank waste have been adequately characterized to allow realistic transport assessments of contaminants at the Hanford site. To develop valid transport models and use accurate values for parameters in these models, the site geochemistry must be carefully examined and characterized.
Since the DOE repeatedly cites the lack of site geochemical data (DEIS, Vol. 3, pp. 0.7, 0.8, 0.15, U.4, and others) and uncertainty as to the composition and speciation of the tank waste (DEIS, Vol. 2, p. xxxv), the DOE should demonstrate that the site geochemical conditions are known well enough to ensure that the models and model parameters used in the impact assessment calculations are reasonable and conservative.
Appendix P, Section P.'1.4, Diffusion-Controlled Release Beneath a Protective Barrier, page P.7, bullet 4 The DOE states that prior releases of contaminants (e.g., tank leaks, crib disposals, well injection) are not included in transport simulations because "most are not categorized as high-level or transuranic (TRU) waste," and those that are high-level or TRU are of negligible quantity. The DOE should take into consideration prior releases of contaminants in the transport calculations since these wastes are components of the current site geochemical conditions.
Because these wastes will continue to be transported, their effects on the transport and attenuation of other contaminants (i.e., future releases of defense wastes) and their contribution to waste concentrations at site boundaries should be assessed.
Appendix V, Site-Monitoring Experience The DEIS includes a brief discussion of current and former environmental monitoring activities at Hanford.
Examples of localized contamination problems (cribs, trenches, etc.) are discussed in detail, while larger-scale contaminant plumes receive little mention. The large-scale movement of these plumes has been studied at Hanford for decades, and much has been learned about contaminant migration in the unconfined aquifer system.
Some of this valuable information should be incorporated in the Final EIS. At a minimum, additions to the Final EIS should include available maps that show, for various times, the shapes and movements of various contaminant plumes known to exist in the unconfined aquifer system. This would include constituents like nitrate, l
tritium, I-129, Ru-106, Co-60, and Tc-99.
These types of mobile contaminants j
show considerable promise in the continued study of flow paths for contaminant migration in the unconfined aquifer system at Hanford.
The Final EIS should l
include a discussion of the role of large-scale contaminant plume behavior in evaluating the environmental impacts of future defense waste disposal operations.
i
13 Appendix V,Section V.5, Reverse Wells, page V.29, paragraph 2 The DEIS states that "the zone of [ radiologic] contamination around the 216-B-5 reverse [ injection] well appears to be [ chemically] stable, with no apparent further migration of radionuclides." Results are shown for Cs-137, Sr-90, and Pu-239,240. However, a previous DOE investigation indicated that there was some evidence of contaminant migration beneath the well site, the source of which was uncertain. The following was reported by Smith (1980):
Gamma logging showed that sediments distributed over a broad area and located just above the basalt surface were contaminated with low-level gamma contamination.
Examination of previously collected gamma logs indicated that a possible source of this contamination could be the BY cribs located [approximately] 900 m north of the reverse well.
This work also indicates that the contamination may be moving in a southeasterly direction.
Smith (1980) also recommended that the broad contamination plume at the basalt surface should be investigated as to its distribution, source or sources, radionuclide identity and concentrations, and that a monitoring plan be developed if required.
This study showed that the position of the water table and the type of sediment to which waste solutions are discharged are important factors for controlling radionuclide distributions. The study also recommended the use of stainless steel well screens for monitoring wells. Anomalous beta activity was present on rusted portions of corroded well casings and was believed to have produced some erroneous radionuclide analyses.
l This is the only reverse well for which contaminant migration has been l
characterized, and one could not thereby conclude that the results are l
statistically significant. Because of aquifer heterogenetties and the chemical variability of fluids originally injected into various reverse wells, it may not be reasonable to extrapolate these results to other reverse well locations.
l It is noted that zones of contamination appear to extend beyond the maximum l
depth of penetration of the monitoring wells.
It would be useful to know to j
what depth contaminants may have penetrated basalts at the base of the i
unconfined aquifer.
Previous researchers at Hanford have presented some evidence for deeper contamination. Brauer and Rieck (1973) noted the presence of I-129 in groundwater obtained from well 699-10-E12 P.
The sampled aquifer was believed to be confined, and it was suggested that.there had been some contamination of the groundwater since the early 1940's.
The presence of varying concentrations of contaminants that were released to the unconfined aquifer system over the last four decades provides a unique opportunity to better understand in situ solute behavior and geochemical retardation processes. Given this unique opportunity, the DOE should plan additional in situ characterization studies of this type as a means of better supporting modeling studies of contaminant transport in the unconfined aquifer system.
e
1 14 GE0 LOGY Section 3.3.2.5, In-Place Stabilization and Disposal Applied to Previously Disposed-of TRU-Contaminated Soil Sites, page 3.24, paragraph 1 This section states that a geophysical survey of the liquid waste sites with high subsidence potential will be completed to characterize them and to identify grout-injection points.
Further discussion of the feasibility and adequacy of subsidence control should be provided in the Final EIS.
Section 4.0, Affected Environment, page 4.2, Figure 4.1 Figure 4.1 provides the general locations of the defense high-level and transuranic wastes.
Figure 4.1 indicates that waste disposal occurred in the 200-W, 200-E, and 300 Areas and in the Wye Burial Ground. The DEIS should more precisely identify all waste locations at Hanford.
It is further recommended that the Final EIS include additional information regarding the geohydrology, geochemistry, and geology (e.g., geomorphology, stratigraphy, and structure) of specific waste disposal areas to better characterize these sites.
For example, the potential for contaminant migration in the vadose zone beneath a given disposal site cannot be reliably determined without an evaluation of actual, l
site-specific soil moisture characteristics and curves of pressure head versus hydraulic conductivity.
Section 4.3, Seismicity, page 4.10, paragraph 4 The existence of faulting and the possibility of fault reactivation in the waste disposal areas has not been adequately addressed. The general guideline in 10 CFR 61.50(a)(9) may be of use in discussing the potential and significance of faulttng in these areas.
The referenced draft EA for Hanford (DOE, 1984) presented a generally favorable view of the tectonic setting and possible effects of tectonics on waste isolation.
In the NRC's major comment #4 on the draft EA (NRC, 1985a), this view was considered to be inadequately supported by the data and analyses presented. The statements made by the NRC staff regarding the reference repository also apply to the waste disposal alternatives of this DEIS.
Section 4.3, Seismicity, page 4.10, paragraph 4 A series of sub-vertical clastic dikes has been observed (NRC, 1985b) in the trench walls at the U.S. Ecology Low-Level Waste Disposal Area, which is located in close proximity to the 200-E Area.
The dikes cut across, but do not appear to offset the sand and silt strata in the trenches. They taper upward and extend from below the base of the trench to within 8 to 10 feet of the surface. They are approximately 2 to 3 feet wide at the base and several inches wide where they are truncated or pinch out near the ground surface. The dikes, which occur in other areas of the Hanford Reservation, may be related to fissuring caused by ground motion resulting from seismic activity. The i
t
,,---m-w,.-,---.---,,-
-w
15 fissures were apparently filled by movement of water-saturated sediments under hydrostatic pressure, which are susceptible to liquefaction.
The presence of these clastic dikes may have significant implications for shallow land burial of low-level and high-level wastes.
In the 500 to 10,000 year periods of isolation required for low-level and high-level wastes, respectively, there is a possibility that fissuring may again occur or that existing fissures may be reopened as a result of seismic activity.
Existing fissures may also provide avenues for groundwater migration. The probability of occurrence as well as the significance of these fissures should be addressed. Additionally, the possible existence of these dikes within the waste disposal areas should be determined.
Section 4.7, Land Use, page 4.30 The DEIS does not address nor does it provide information on the potential for the existence of natural resources in the defense waste areas.
10 CFR 61.50 (4) requirts that, for the near-surface disposal of low-level wastes, areas known to contain natural resources should be avoided. While the disposal of defense wastes is not subject to 10 CFR Part 61, the reasons for avoiding such areas remain valid.
The Final EIS should provide an evaluation of natural resources, including hydrocarbon and mineral resource potential at the proposed site. This is particularly relevant in view of a natural gas discovery within sediments underlying the basalts in the Saddle Mountains area of the Hanford Reservation by Shell Oil Company (NRC, 1985a).
Appendix 0, Section 0.1, Stratigraphy Beneath The Hanford 200 Areas, pages 0.2-0.5 The principal units that comprise the unconfined aquifer system at Hanford are discussed in Appendix 0.
Little information is provided on the topic of paleogeomorphology at Hanford.
This topic may be of importance in developing a better understanding of flow and transport in the unconfined aquifer system.
Brown et al. (1962) provided geologic interpretations that accounted for the apparently rapid dispersal of tritium in the unconfined aquifer system at Hanford. They noted that the contaminants appear to be following old Columbia River channels incised into the eroded upper surface of the low permeability Ringold Formation sediments.
These channels are filled with more recent deposits (Hanford Formation) that have permeabilitias approximately two orders of magnitude greater than in the underlying Ringold strata.
It appears that the relative subcrop elevation of the Ringold Formation with respect to the water table thereby exerts considerable influence over groundwater ficw paths.
This may account for the observed branching (anomalous macrodispersion) of contaminant plumes migrating away from the 200 East Area.
This information should be considered when interpreting the results of groundwater surveillance at Hanford and in the continued development of a groundwater monitoring program.
16 ENVIRONMENTAL Several of the NRC's detailed environmental comments on the DOE's draft Environmental Assessment are applicable to the DEIS. The comment numbers are E-1, 3-30, 4-3, 4-5, 5-10, 5-11 and 6-38.
These comments should be considered in preparing the Final EIS.
9 1
17 REFERENCES Beedlow, P. A.,
1984.
Designing Vegetation Covers for Long-Term Stabilization of Uranium Mill Tailings, NUREG/CR-3674 (PNL-4698), U. S. Nuclear Regulatory Commission, Washington, D. C.
Brauer, F. P. and H. G. Rieck, Jr.,1973.
I-129, Co-60, and Ru-106 Measurements on Water Samples from the Hanford Project Environs, BNWL-SA-4478, Battelle, Pacific Northwest Laboratories, Richland, Washington.
Brown, D. J., R. E. Brown, and W. A. Haney,1962. Appraising Hanford Waste Disposal by Integration of Field Techniques, HW-SA-2707, General Electric Company, Hanford Atomic Products Operation, Richland, Washington.
Delegard, C.H. and G. S. Barney, 1983.
Effects of Hanford High Level waste Components on Sorption of Cobalt, Strontium, Neptunium, Plutonium, and Americium on Hanford Sediments, RHO-RE-ST-P, Rockwell Hanford Operations, Richland, Washington.
DOE, 1984.
Draft Environmental Assessment:
Reference P.epository Location, Hanford, Washington, Office of Civilian Radioactive Waste Management, U. S. Department of Energy, Washington, D. C.
Executive Order No.11988, " Floodplain Management", May 24, 1977, 42 F.R. 26951 Kelmers, A.D., 1984.
Letter Report: Draft Analysis of Conservatism of Radionuclide Information Measured by Batch Contact Sorption / Apparent Concentration Limit Isotherms, L-290-3, Oak Ridge National Laboratory, Oak Ridge, Tennessee.
Lindsey et al., 1982.
Long-Term Survivability of Riprap for Armoring Uranium Mill Tailings and Covers, NUREG/CR-2642 (PNL-4225), U. S. Nuclear Regulatory Commission, Washington, D. C.
Nelson et al., 1983.
Design Considerations for Long-Term Stabilization of Uranium Mill Tailings Impoundments, NUREG/CR-3397 (0RNL-5979), U. S.
Nuclear Regulatory Commission, Washington, D. C.
NRC, 1982.
Final Environmental Impact Statement on 10 CFR Part 61, " Licensing Requirements for Land Disposal of Radioactive Waste," U.S. Nuclear Regulatory Commission Report NUREG-0945, Volumes 1-3 NRC, 1985a.
NRC Comments on DOE Draft Environmental Assessment for the Hanford Site, Division of Waste Management, U. S. Nuclear Regulatory Commission, Washington, D. C.
NRC, 1985b. Trip Report to Richland Low Level Waste Disposal Facility and Hanford Reservation, Washington, June 25-26, 1985 (memorandum from Jose J. Valdes-to Malcolm R. Knapp, July 31,1985).
18 Skaggs, R. L. and W. H. Walters, 1981.
Flood Risk Analysis of Cold Creek Near the Hanford Site, RHO-BWI-C-120, Rockwell Hanford Operations.
Smith, R. M., 1980. 216-B-5 Reverse Well Characterization Study, RHO-ST-37, Rockwell Hanford Operations, Richland, Washington.
Toste, A. P., and R. B. Myers, 1986.
The Relative Contributions of Natural and Waste-Derived Organics to the Subsurface Transport of Radionuclides, in The Effects of Natural Organic Compounds and of Microorganisms on Radionuclide Transport, proceedings of an NEA workshop, OCED Nuclear Energy Agency, Paris France.
Young, J. K., L. W. Long, and J. W. Reils, 1982.
Environmental Factors Affecting Long-Term Stabilization of Radon Suppression Covers for Uranium Mill Tailings, NUREG/CR-2564 (PNL-4193), U. S. Nuclear Regulatory Commission, Washington, D. C.
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VMTED STATES i
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February 12, 1984 i
Henry K. Garson, Esq.
Assistant General Counsel for Environment-
- ~ ~
Department of Energy Washington, D.C. 20585
Dear Henry:
Thank you for your letter of January 6, 1986 and.tha. entlosed draft legar -
memorandum by Bob Carosino.
I have found the memo to be a careful examination of the legislative, administrative, and judicial materials pertinent to the question of licensing jurisdiction.
It appears that its conclusion would restate DOE's (and ERDA's) longstanding interpretation of Section 202(4)'s reference to facilities
" authorized for the express purpose of subsequent long ' term storage." The Circuit Court's language, cited on page 9 of the draft memorandum, acknowledges the perceived ambiguity concerning whether Congress or the Administration must give the required authorization; and 1 presume that it was the Administration that claimed that authorization by Congress would be required in order for Commission jurisdiction to attach.
So far as I am aware, the Commission has not taken a position on the issue.
Its waste tanks decision reflects an understanding that the existing tanks were to be tempora'ry only.
Although the decision did in fact turn to the 1976 Fiscal Year Authorization Act to determine whether the facilities there at issue were for long term storage, I do not regard this si a conclusive statement that Congressional authorization is a
prerequisite for the Commission's exercise of jurisdiction.
It surprises me that DOE would consider proceeding with in place stabilization of these wastes without Congressional authorization.
The Department's authority to do so is, of course, not a matter of direct concern to NRC.
Should DOE so proceed, however, I would anticipate that Congressional 4
inquiries would be made to the Commission and, in response, the Commission J
might advise that it regarded its, elf as having jurisdiction over tanks used for long-term r.torage, whether authorized for that use by Congress or by the Department.
A further complication is introduced by the limitation contained in Section 210 of the 1981 DOE Authorization Act, Pub.L.96-540, 42 U.S.C. I 7272, which prohibits the expenditure of funds for the licensing of defense activities of DOE.
Even if the Cammission has jurisdiction over the tanks on the basis of DOE authorization of thtir use for long-term storage, it would be unable to exercise that jurisdiction at this time.
It seems improbable to me that the Commission would set to require DOE to obtain a license so long as this restriction remains in force.
Under these circumstances, NRC would have no i
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need either to agree or disagree with the conclusions of the draft meraorandumi if adopted as DOE policy.
I hope these comments will be of assistance to you in your development of DOE's legal position in the matter.
Sincerely, Orig! 3.. "
'y Guy H. Cunnin4 ham,til Guy H. Cunningham, III Executive Legal Director DISTRIBUTION:
JWolf GHCunningham WJOlmstead Regs RIF OELD S/F OELD R/F Central Files m
3 5
w Department of Energy Washington, D.C. 20585 January 6, 1986 Guy H. Cunninoham, Esq.
Evacutive Local Director ti. S. Nucleae Reculatorv Commission Wa=hinaton, D.C.
20555 Daa-Guv:
As wa discussad several montha ago, the Department of Energy is perparing an Environmental Impact Statement (EIS) on the dispo=al of Hanford defense high-level, transuranic and tank wa=tae.
Included amonc the alternatives analyzed in the draft FIS, ncheduled for release in Fabruary, is the option of disco =ino c;# the singla shell tank wantes bv stabilizing then in place and covering them with a protective barrier.
Naturally we anticicate questions on whether such disposal would be subject to PFC licencing.
I an mo=* hopeful that we can agree to an answer on this legal issua in time to have it included in the draft EIS.
There# ore, to begin the process, I am enclosing for your review and com.nent a draft legal manorandum by Bob Carosino, an attornev in our Richland Ope *ations Office.
This draft memorandum concludes that a legally persuanive argument can be made that NRC would not have licenning iurisdiction over such in-place stabilization and disposal.
Please feel free to call if vou desire any further i dornation.
Sincerely,
((( *: ' -
Henrv
. Garson Assis nt General Counsel for Environment r
Enclosure 861914
a Fumm i
E. E. Pride Acting Chief Counsel Richland Operations Office ISSUE:
IS NRC LICENSING REQUIRED FOR IN-PLACE STABILIZATION AND DISPOSAL OF HANFORD SINGLE-SHELL TANK WASTE BY VIRTUE OF 202(4) 0F THE ENERGY REORGANIZATION ACT OF 1974 (P.L.93-438)?
I.
Background
The Richland Operations Office of the Department of Energy is currently investigatingthepossiblealternativemeanso/
wastestoredinsingle-shelltanksatHanford.fdisposingofradioactive One alternative means of disposing of these radioactive wastes is to dispose of these wastes "in place." trider the in-place stabilization and disposal concept the wastes are left in the existing tanks with addition, as necessary, of protective barriers over the ~ waste sites to assure protection of public health and safety.
The conceptual method of in-place disposal for single-shell tank wastes leaves the waste,aterial in the existing tanks. The tank void space above the waste is filled with sand or other material to support the tank domes and walls and preclude subsidence. Pipes and other entries to the tanks would be filled with nonradioactive grout or other material, isolating the tanks and their contents from external liquids.
1/ For the purposes of analysis only, this memorandum assumes that at least some of the waste material stored in tanks is high-level radioactive waste.
However, a possibility exists that material in most single-shell tanks could qualify as nonhigh-level wastes due to the additional processing, i
scavenging, radionuclide separation, and mixing of tank contents which has occurred in the past (e.g., removal of large quantities of strontium 90 andcesiumI87). To the extent the material in single-shell tanks does not constitute high-level radioactive waste, 202(4) of P.L.93-438 would not be' applicable. However, it.is not the purpose of this memo to address this issue in detail.
,3; A,r-.
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September 19, 1985
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E. E. Pride, OCC j gg
'g To further isolate the waste, each tank farm would be covered with a protective barrier and marker system. This barrier consists of a layer of basalt riprap about 4-m thick and a 1.5-m top layer of revegetated fine soil.
The top layer traps moisture until it can be removed by evapotranspiration and the riprap acts as a barrier to prevent upward or downward movement of water by cdpillary action. The physical ccri-figuration of the barrier would also prevent plant roots and burrowing animals from reacning the wastes.. The basalt riprap would prevent wind erosion'over tne waste sites and discourage farming, dwelling, or other uses by man of areas over or near the buried waste sites.
II.
Issue Posed A question has been raised as to whether this method of waste disposal would require an NRC license pursuant to 202(4) of the Energy Reorga-nization Act of 1974. 42 U.S.C. s 5842(4). The Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq., gave the Atomic Energy Commission (AEC) tne authority both to levelop and regulate nuclear power.
By the Energy Reorganization Act of 1974, 42 U.S.C. 5801 et seq., Congress abolished the AEC, lodged in ERDA [now 00E] the reseaFch and development responsi-bilities and the military nuclear functions of the AEC; and created the -
Nuclear Regulatory Conunission (NRC) to assume the licensing and related regulatory functions of the AEC.
The statute exempted most ERDA activi-ties from NRC jurisdiction but provided for NRC licensing jurisdiction over a few, narrowly defined and specificially delineated ERDA facili-ties, including certain facilities.:tuthorized for the express purpose of subsequent long-term storage of high-level waste.
Specifically, 202(4) provides that:
... the Nuclear Regulatory Commission shall, except as otherwise specifically provided..., have licensing and related regulatory authority... as to the following facilities of the Administration [now 00E]:
(4)
Retrievable Surface Stonge Facilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by tne Administration which are not used for, or are part of, research and development activities.
(Emphasis added).
III. Analysis A.
Previous Judirial Review of 4 202(4)
~
The operative language of s 202(4) has been the subject of judicial
~
review on only one occasion.
In the case of NRDC v. NRC, et al_.,
September 19, 1985
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I E. E.' Pride, OCC
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606 F.2d 1261'(D.C. Cir. 1977), the United States Court of Appeals for the District of Columbia was asked to interpret this language in relation to a demand by NRDC that the NRC be required to license double-shell taks then being constructed at Hanford and Savannah River for DOE's interim waste management program. The issue posed in that litigation was substantially different from the issue addressed in this memorandum. While the single-shell tanks at Hanford which'are the subject of this memorandum were authorized by Congress and constructed long before the enactment of the Energy
, Reorganization Act of 1974, the double-shell tar.ks which were the
' subject of the NRDC v. NRC, et al. litigation had been authorized by Congress and were being constructed after the passage of the Energy Reorganization Act of 1974. The effect of l 202(4) on the newly authorized double-shell tanks was significantly different than the current question of the applicability of the statute to wastes c1 ready stored in facilities designed, authorized and con-structeu long before passage of the Energy Reorganization Act of 1974.
t, Notwithstanding the substantial differences in the fact patterns,
(
the NRDC v. NRC case is discussed in this memorandum to provide general background to the issue since it is the only judicial interpretation of 202(4) that has been rendered to date.
.B.
NRC Proceedings Prior to initiating the NRDC v. NRC litigation, NRDC had petitioned the NRC to take licensing jurisdiction over the tanks being constructed.
!!n the NRC administrative proceeding regarding NRDC's request ERDA contested NRC's jurisdiction, noting that its plans for the tanks and the Conference Comittee Report on ERDA's authorization legislation for 1976 specifically indicated these tanks were for short-term storage and "are not required to be licensed." Senate Report No.94-514, 94th Cong., 1st Sess. 74-75 (1975).
The NRC considered the submissions of the parties and on July 8, 1975, determined that the facilities were outside the scope of its 202(4) licensing authority.
On December 10, 1976, NRDC requested reconsideration by NRC and also amended its request to include two other ERDA waste tank construction projects authorized for fiscal year 1977 at Hanford and at Savannah River.
.. f
'In a thorough opinion dalineated as Matter of NRDC (request
. con:erning ERDA high-level waste storage facilities) 5 NRC at 550 (March 31, 1977), the Comission rejected NRDC's position.
The Ca mission first defined the issue:
September 19, 1985
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E. E. Pride, OCC 4-
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Certainly, the major issue raised by the NRDC petition is a legal question.
Since ERDA facilities are generally exempt from the licensing requirements of the Atomic Energy Act, 42 U.S.C. 5 2140 licensing thenewERDAwastetanksisrequiredonlyIfthey come within the scope of section 202(4) of the Energy Reorganization Act of 1974, 42 U.S.C. 5 5842(4).
Id. at 552-553.
The Comission then reviewed the legislative history of 202(4),
the legislative history of the authorization legislation for these construction projects, and ERDA's assurances to the Comission and to the Congress and concluded that these projects were outside the scope of NRC's licensing authority.
The Comission rejected the NRDC view that Congress intended i
202(4), to apply to any facility " authorized on the date of enactment, or subsequent thereto, which is for the purpose of storing wastes for a period in excess of 20 years." (Id.at553)
Instead, the Comission found that "[s]ince ' Retrievable Surface Storage Facility' is in initial caps, reference to a specific type of facility planned for the 1980's is evidenced." g.
The Comission set out the pertinent passage of the Senate Report which the Comission found:
... states the purpose of Sections 202(3) (governin facilities for storing comercially generated wastes)g and 202(4):
These two paragraphs [(3) and (4) of Section 202]
anticipate the time, probably in the 1980's, when comercial nuclear power reactors wi t i generate more high level radioactive waste material than reactors in the Government sectors, including those used in the weapons program. At present, most of the wastes which are leaking from tempo-rary tanks in AEC storage facilities are from the weapons program. The committee intends that new facilities now being planned for long term storage of comercial wastes will meet strict licensing standards of [NRC].
(Emphasis added.)
S. Rep.
No.93-980, 93rd Cong., 2d Sess. at 60 (1974).
This passage evidences Congress' intention that Section 202(4) applies to a new generation of facilities which have yet to be designed, and that Congress considers existing ERDA tanks to be temporary, not long term facilities.
Id. at 553.
September 19, 1985
WD"!
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e E. E. Pride, OCC ",
I The Comission then turned to the Conference Report description of 202(4) which reinforced that interpretation:
The conference substitute also retains the Senate language with respect to licensing of " retrievable surface storage facilities" and other facilities for long term storage of high level radioactive waste.
Such facilities are not now in existence but will be developed in the near future for long term, possibly pemanent, storage of high level radioective wastes, including wastes from the licensed sector.
H.R. Rep.
No. 93-1445, 93rd Cong., 2d Sess. 34 (1974).
M. at 553.
The Commission interpreted this language "as looking to the future at facilities yet to be designed which will handle wastes from the licensed sector as well as defense wastes." M.
The Commission noted, moreover, that these ERDA facilities had not been " authorized for the express purpose of subsequent long-term storage" of high-level waste:
Turning to the 1976 Fiscal Year Authorization Act for the tanks in question, P.L.94-187, we find nothing to indicate an intent that the authorized facilities are for long term storage of radioactive wastes.
Indeed, the opposite is the case. As ERDA has repeatedly pointed out, ERDA letter of February 5, 197e; ERDA letter of February 17, 1977, the Senate Report on the 1976 Authorization Act states:
... these facilities for short term storage of radioactive waste are not required to be licensed by the Nuclear Regulatory Comission.
S. Rep. No.94-514, 94th Cong., 1st Sess. 75 (1975).
Accordingly, the 1976 projects are beyond the scope of Section202(4). Similarly, in the absence of language in the 1977 authorization statute indicating that the facilities are authorized for the express purpose of long term storage, we would be reluctant to rule that the facilities are subject to Section 202(4), particu-larly in light of the legislative history reflecting a concern for a new generation of facilities.
Id. at 544 (emphasis added).
September 19, 1985
< - c.-,
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l E. E. Pride, OCC ~
Based on this legislative history, the Ccmission concluded that the tanks authorized by the Congress for fiscal years 1976 and 1977 were for purposes of 202(4) interim storage facilities and not long-term storage facilities.
C.
District Court Decision The NROC filed a petition for review of the Comission's licensing decision in United States District Court for the District of Columbia along with other claims based upon NEPA.
Before the district court, the parties agreed the " sole [ substantive] licensing question was whether these tanks are 'other facilities authorized for the express purpose of subsequent long-term storage.'" NROC v. Administrator, et al., 451 F.Supp.1245,1251 (D.C.D.C.1978). On May 8, 1978, the district court granted sumary judgment in favor of the NRC and ERDA position that the waste tanks were beyond the scope of NRC licensing authority.
The district court found that the relevant legislative history showed that NRC has jurisdiction over facilities that are part of a plan for ultimate long-term steage only and that the double-shell tanks at issue had consistentlj been treated by ERDA as part of an interim program.
In so ruling, the district. court rejected the notion that any particular specific number of years of storage should demarcate "long-term" from other forms of storage.
Id. at 1253. The court reviewed Congress' purpose in giving NRC ITcensing authority of certain ERDA facilities in 202(4):
Congress' intent to limit NRC's licensing jurisdiction to waste storage facilities of the type that ERDA decides to utilize in its ultimate plan for long-term storage is further demonstrated by Congress' express purpose in giving NRC such licensing authority.
In explaining the language which was ultimately enacted into law, the Senate Comittee on Government Operations stated that the purpose of NRC's " enhanced" authority (over ERDA) was "to enabl [e] it to develop early exper-tise in new generations of nuclear technology as they approach comercial application."
S. Rep. No.93-980, 93rd Cong., 2d Sess. 59 (1974), U.S. Code Cong. &
Admin. News 1974, p. 5520.
The Comittee further explained that it believed such NRC licensing would ensure that NRC would "have the capability to develop
[early] expertise... [and thereby] speed up to eventual licensing of new comercial reactors and other comercial nuclear facilities."
Id.
See id.
at 21.
U.S. Code Cong. & Admin. News T974, p. W20.
This aspect of the legislative history evidences that, contrary to plaintiffs' position, Congress was not September 19, 1985
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l E. E. Pride, OCC.
specifically concerned with the present safety of all new ERDA waste storage facilities when it enacted section 202(4). As the above-quoted language demon-strates, Congress was concerned with giving NRC the opportunity to develop regulatory expertise to ensure the ultimate safety of long-term nuclear waste storage facilities as such facilities achieve conuercial acceptability. With respect to the safety of ERDA's current and other non *long-term" storage facilities, it appears that Congress was content to rely on ERDA's own responsibility "to protect health and to minimize danger to life or property." 42 U.S.C.
2201(b).
- g. at 1253-1254 (emphasis in original; footnote omitted).
Thus, the district court concluded that 202(4) conferred juris-diction only over ERDA facilities intended to be part of ERDA's ultimate plan for long-term storage of high-level waste and that these tanks were not part of that plan. M.at1254.
D.
Court of Appeals Decision The case was appealed to the Court of Appeals for the District of Columbia Circuit Upon review of the decision of the district court, the appeals.. court agreed with the ultimate decisions reached by both the NRC and the district court, that licensing of the tanks was not required. (NRDC v. NRC, et al., 606 F.2d 1261, D.C. Cir.
1979) However, the Court held that the Court of Appeals had ex-clusive jurisdiction to review NRC's determination not to license the tanks; therefore, it reviewed NRC's decision directly rather than via the decision of the district court. The district court's decision on this point was vacated. Therefore, the broad language used by the district court regarding the licensing issue is entitled to little weight.
The Court of Appeals described the issue as follows:
The crucial question in determining whether the tanks at Hanford and Savannah River are within NRC's licens-ing authority is whether they are " authorized for the express purpose of subsequent long-term storage of high-level radioactive waste" generated by ERDA. 42 U.S.C.
5842(4). NRDC contends that resolution of this question turns on the likelihood that the tanks wt ii ce used for long-terTn storage, ratner than wnetner Congress or ERDA actually authorized them for that purpose.
g.at1266(emphasisadded).
September 19, 1985
E. E. Pride, OCC The Court relied heavily upon leoislative history to help resolve this question, and its decision 1 cluded the following discussion of Congressional intent:
The Senate Comittee on Government Operations explained that sections 202(3) and (4)
... provide [NRC].the authority and respon-sibility for licensing and related regulation of retrievable surface storage facilities and other facilities for high-level radioactive wastes which are or may be authorized by the Congress to be built by ERDA or with ERDA financial assistance for long-term (tens to hundreds of years) storage of such radioactive wastes generated by the Administration or to which present high-level radioactive wastes may De transferred by the Administration tn the future.
It is not the intent of the com-mittee to require licensing of such storage facilities which are already in existence or of storage facilities which are necessary for the short-term storage of radioactive materials incidental to ERDA's R&D activities.
These two' paragraphs anticipate the time, probably in the 1920's, when commercial nuclear power reactors will generate more high-level radioactive waste materials than reactors in the Government sector, including those used in the weapons program. At present, most of the wastes which are leaking from temporary tanks in AEC storage facilities are from the weapons programs. The comittee intends that new facilities now being planned for long-term storage of commercial wastes will meet the strict licensing standards of
[NRC].
Id. at 50-60, reprinted in 1974 U.S. Code Cong. &
Mmin. News 5521; see H.R. Rep. 93-1445, 93rd Cong.,
2d Sess. 33-34 (Conference Report), reprinted in 1974 U.S. Code Cong. & Admin. News, p. 5470 (facilities for long-term storage of wastes, including wastes from licensed sector, not now in existence but will be developed in near future).
Id_. at 1267 (emphasis added; footnote omitted).
September 19, 1985 l
~
~ ~
~
- es g
E. E. Pride, OCC g The Court interpreted this legislative history as clearly establish-ing a criteria that the need for licensing was based upon whether the facilities had been expressly authorized for long-term storage, not whether the facilities might ultimately be used for long-term storage.
Indeed, the Court interpreted 202(4) and its legislative history as follows:
The 'words of section 202(4), coupled with the foregoing legislative history, convince us that NRDC's interpreta-tion of that section is erroneous. Had Congress desired to base NRC licensing jurisdiction on a factual deter-mination of the probability that particular ERDA waste storage facilities would, for reasons of necessity or otherwise, be used for long-term storage, it would have enacted a statute significantly different from that
]
before us.
Instead, Congress chose to give NRC licensing jurisdiction when such facilities are " authorized for the express purpose of subsequent long-term storage."
42 U.S.C. 9 5842(4). Although the parties suggest that some ambiguity exists concerning who must give the required authorization-Congress or ERDA-neither authorized the twenty-two tanks for long-term storage.
g.at1269(emphasisadded;footnotesomitted).
Since neither ERDA nor Congress has authorized the fiscal years 1976 or 1977 tanks for long-term storage, the Court did not conclusively address the issue of what was meant by the term " authorized for the express purpose" and simply concluded that the tanks were not within the licensing authority of NRC." H.at1268.
I IV. Application of Appeals Court Reasoning to Issue of In-place Stabilization ano Disposal of 5 ingle-5 hell Tank Waste While the Court of Appeals decision in the double-shell tank case cannot be cited as binding precedent for either a conclusion that 00E must or need not obtain an NRC license for in-place stabilization and disposal
(
of single-shell tank waste, the analysis made by the Court suggests that under a strict standard of statutory interpretation, licensing of in-place disposal of single-shell tank wastes at Hanford would not be required by the current language of 5 202(4). As discussed, supra at
- p. 10, the Court indicated it was appropriate that a determination of this type of issue be based on review of the language of the legislation coupled with the relevant legislative history. The following arguments can be made supporting the position that licensing of in-place dispesal is not required:
September 19, 1985 t
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P E. E. Pride, OCC A.
Licensing is required only for facilities authorized by Congress The decision of the Circuit Court in the double-shell tank case noted that NRDC and ERDA disagreed over whether the term " authorized for the express purpose of subsequent long-term storage" was intended to mean authorization by Congress or authorization of such use by'ERDA.
Id. at 1261.
The Court did not reach that issue, however, because TY noted that both Congress and DOE denied the tanks were intended for long-term storage. However, by applying the process of legis-lative interpretation followed by the Court in that case we would conclude that the answer to the question of who must authorize the facilities is clearly provided by review of the legislative history.
The applicable section of the Senate Comittee Report states that 202(3) and (4):
... provide NRC the authority for licensing and related regulation of retrievable surface storage facilities and other facilities for high-level radioactive wastes which are or may be authorized by the Congress to be built by ERDA or with ERDA financial assistance for long (tens to hundreds of years) storage of such radioactive wastes generated by the Administration or to which present high-level radioactive wastes may be transferred by the Admin-istration in the future.
Senate Committee Report, supra at 8 (emphasis added).
This legisle'..e history indicates that there was no intent for a decision by the agency to be the triggering event for application of the licensing requirement. Rather for facilities to be subject to licensing they must be authorized by Congress for long-term storage. This interpretation is also consistent with the inter-pretation made by NRC in its review of NRDC's petition to license the tanks for interim storage.
See 5 NRC at 554 (quoted supra at pages 5).
B.
Licensing was intended to apply to a category of facilities yet to be designed, not tanks of tne type then in existence.
The Conference Committee Report on the Energy Reorganization Act provides the following statement regarding the language adopted in j 202(4):
The conference substitute also retains the Senate language with respect to licensing of " retrievable surface storage facilities" and other facilities for long-term storage of high-level radioactive wasfe.
Such facilities are not now in existence but will be developed in the near future for September 19, 1985
eo.
E. E. Pride, OCC long-term, possibly permanent, storage of high-level radioactive wastes, including wastes from the licensed sector.
H. R. No. 93-1445, 93rd Cong. 2d Sess. 34 (1974) (emphasis added).
This language indicates that the legislation was intended to assure licensing of a new generation of facilities that might be used for long-term storage, again supporting the contention that use of existing facilities would not require licensing. Furthermore, the legislative history, quoted supra at page 10-11, anticipated licensing of new facilities to which existing waste may be
" transferred" but does not mention the need to license existing facilities should DOE decide to leave the waste in those facilities.
The NRC, in its administrative decision on licensing of newly
~
authorized double-shell tanks came to a similar conclusion regarding legislative intent stating that "Since ' Retrievable Surface Storage Facility' is in initial caps, reference to a specific type of facil-ity planned for the 1980's is evidenced." 5 NRC at 553.
The Senate Report also supports the interpretation since it states:
These two paragraphs [(3) and (4) of Section 202] anticipate the time, probably in the 1980's, when commercial nuclear power. reactors will generate more high level radioactive waste material than reactors in the Government sector, including those used in the weapons program.
At present, most of the wastes which are leaking from temporary tanks in AEC storage facilities are from the weapons program.
The committee intends that new facilities now being planned for long term storage of commercial wastes will meet strict licensingstandardsof[NRC].
S. Rep. No.93-980, 93rd Cong., 2d Sess. at 60 (1974) (emphasis added).
C.
Section 202(4) was intended to apply to new facilities authorized by Congress to be built for long-term storage, not to existing facilities that might ultimately be used for long-term storage.
There was no clear legislative intent expressed to require licensing of facilities in existence that might subsequently be utilized for in-place long-term storage.
Indeed, NRDC argued in the tank case that it feared this situation would occur and sought NRC licensing for that reason. The Court of Appeals, in dismissing that argument, supports the conclusion that licensing was only to apply to facili-ties authorized by Congress to be constructed for such long-term storage by stating:
September 19, 1985
fi>
E. E. Pride, OCC,
Had Congress desired to base NRC licensing jurisdiction on a factual determination of the probability that parti-cular ERDA waste storage facilities would, for reasons of necessity or otherwise, be used for long-term storage, it would have enacted a statute significantly different from that before us.
Instead, Congress chose to give NRC licans-ing jurisdiction when such facilities are " authorized for the express purpose of subsequent long-term storage."
606 F.2d at 1267.
And, the Senate Comittee's Report on the legislation also supports this interpretation by describing the requirement as applying to
" facilities authorized... to be built...."
Senate Comittee Report, supra at page 8.
D.
Licensing would not give NRC an opportunity to develop expertise over activities of tne civilian sector.
The legislative history for 202(4) indicates that Congress was not primarily concerned with ERDA's ability and competence to perform its activities in a manner to adequately protect public health and safety but rather intended to give NRC licensing jurisdiction over a new generation of waste storage facilities that would be used for comercial activities in the future.
The Senate ~ Comittee on Government Operations stated that the purpose of NRC's " enhanced" authority (over ERDA) was "to enab1[e]
it to develop early expertise in new generations of nuclear tech-nology as they approach comercial application."
S. Rep. No.93-980, 93rd Cong., 2d Sess. 59 (1974). The Comittee indicated that it believed Nch NRC licensing would ensure that NRC would "have the capability to develop [early] expertise... [and thereby] speed up the eventual licensing of new comercial reactors and other comercial nuclear facilities." Id.
In-place stabilization and disposal clearly does not involve a new generation of facilities or a methodology which will be applicable to comercial nuclear facilities.
A significantly different method, disposal of high-level wastes in geologic repositories will be used for comercial high-level waste as mandated by the Nuclear Waste Policy Act of 1982 (P.L.97-425).
The concept under consideration for single-shell tank waste is to leave the wastes in their existing storage containers. No new waste storage facility would be designed or constructed by 00E under this concept. An earthen and rock barrier would be applied over the waste site but this surface stabilization or action would clearly not constitute construction of a facility in which wastes would be September 19, 1985
.g:;
E. E. Pride OCC placed for " subsequent l'ong-term storage." There is no opportunity for NRC to perform the preconstruction licensing review activities normally performed for licensed activities.
Nor would NRC be developing expertise that would be readily transferable to its licensing of civilian waste facilities since in-place stabilization involves a different concept than that intended for civilian high 1evel waste. Therefore, this portion of the legislative history also supports the lack of any Congressional intent to require licensing of in-place stabilization.
V.
Conclusion Based upon a review of the precise and specific language chosen by Congress in writing 202(4), review of the legislative history for that section, and analysis of the limited administrative and judicial interpretation which has been given that section of the Energy Reorga-nization Act, it is my opinion that a legally persuasive argument can be made that 202(4) would not require DOE to obtain a license from NRC for in-place stabilization and disposal of single-shell tank waste.
Robert M. Carosino, Attorney Office of Chief Counsel I
1 September 19, 1985
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