ML20235M644
| ML20235M644 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR47578, RULE-PR-62 NUDOCS 8902280347 | |
| Download: ML20235M644 (66) | |
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NUCLEAR REGULATORY COMMISSION '89 JEB -1 A10 M2 10.CFR PART 62 ,. y .
hm.u Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities AGENCY: . Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- . -The Nuclear. Regulatory Commission (NRC) is issuing this rule to
' establish criteria and procedures for fulfilling its responsibilities associated with acting on requests by low-level radioactive waste generators, or. State officials on behalf of those generators, for emer-r .
gency ' access'to operating,'non-Fedeal or regional,. low-level radioactive ,
waste disposal _ facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. -Grants of emergency access may be necessary if a generator of low-level radioactive waste is denied access to' operating low-level radioactive waste disposal facilities and the 1
lack of this access results in a serious and immediate threat to the public health and safety or the common defense and security.
March 6, 1989 EFFECTIVE DATE:
1: ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be exemined at the NRC Public Document Room, 2120 L Street NW., Washington, DC 20555.
8902280347 890131 6 52N47578 PDR h
FOR FURTHER INFORMATION CONTACT: -Janet Lambert, Division of Engineering,
- 0ffice,of Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-3857.-
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- SUPPLEMENTARY'.INFORMATION:
> I .~ Introduction and Background .
II. Legislative Requirements III. Legislative History
' IV. NRC Approach V. - -Assumptions VI.. -The. Final Rule.
, - VII. Rationale for Criteria . .
VIII. Terms 'and Conditi'ons for' Emergency Aci:ess Disposal * .
IX. -Analysis of Public Comments' .
X. Finding of No Significant Environmental Impact: Availability XI.. Paperwork Reduction Act Statement XII.- Regulatory Analysis ;
XIII. Regulatory Flexibility Certification f XIV. Backfit Statement .
l XV. ListofSubjects I. Introduction and Background On December 15, 1987, NRC published in the Federal Register (52 FR 47587)-a proposed new Part 62 to 10 CFR in order to implement its emergency access responsibilities under Section 6 of the Low-Level
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4 Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, Janu'ary 15, 1986), "the Act." The proposed Part'62 set forth the criteria and procedures that the Commission intended to use to determine if emergency access to non-Federal and regional low-level waste (LLW) disposal -
facilities should be granted. The public comment period for the proposed rule expired on February 12, 1988. The NRC received twenty-one (21) ,
comment letters from ten concerned citizens and environmental groups, six State governments, two LLW compact Commissions, two industries and one nuclear information service.
The Act directs the States to develop their own low-level radioactive waste (LLW) disposal facilities or to form Compacts and i
cooperate in the development of rt.gional LLW disposal facilities so that ,
the new facilities will .be available.by Janu'ary 1, 1993.
The Act e'stablishes' procedures and milestones for the selection and , -
development of the LLW disposal facilities. The Act also establishes a system of incentives for meeting the milestones, and penalties for fail-ing to meet them, which is intendr' to ensure steady progress toward new facility development.
The major incentive offered by the Act is that the States and regional Compacts that meet the milestones will be allowed to continue to use the existing disposal facilities until their own facilities are available, which is to be no later than January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional LLW disposal facilities are authorized to demand, additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities. ,
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Section 6 of the Act provides that the Nuclear Re~gulatory Commission ,
(NRC) can determine to grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities if access to those facilities has been denied and access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires, that NRC determine whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must be able, with the informa-tion provided by the requestor, to make both determinations prior to granting emergency access. The purpose of this regulation is to set forth the criteria and procedures that will be used by the Commission to ,
determine if emergency access to a' LLW faci 11ty should be granted.
II. Legislative Requirements .
In addition to directing the NRC to grant emergency access as discussed in-the Background section, the Act further directs NRC to designate the operating LLW disposal facility or facilities where the l waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45. days from the time a request is received to determine whether emergency access 1
will be granted and to designate the receiving facility.
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. y, The Act provides that'NRC can grant emergency. access for.a; period ;]
not to exceed.180 days per' request. To. ensure that^ emergency access is not abused, the Act allow:; that only one extension of emergency access, not'to exceed 180 days, is to be granted per request. An extension can be approved onlyLif the LLW generator who was originally granted emer- q gency' access and the State in which the LLW was generated have diligently, y though unsuccessfully, acted during the period of.the initial. grant to eliminate the need for emergency access..
The Act also provides that requests for emergencyLaccess shall contain all information and certifications that NRC requires to make its determination.
" Temporary emergency access" to non-Federal or regional LLV disposal facilities may be granted at the Commission's discretjon because of a ..
serious and immediate throat.to the public health and safety or the f
common defense and security, pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
The Act.does not require NRC to develop a rule to carry.out'its Section 6 responsibilities. However, NRC is issuing this rule to estab- i lish the criteria and procedures that will be used in making the required determinations for emergency access. Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave the Commission authority to decide whether access will be provided, emergency access decisions are likely to be controversial. By sett.ing out the criteria and procedures for making emergency access decisions in a rule that ' reflects public comment, NRC intends to add predictability 5 .
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to the decisionmaking process and to help ensure'that the NRC will be
- able.to'make_its decisions on emergency access requests within the time allowed by the Act.
Legislative History III.
The legislative. history of the'Act emphasizes the Congressional intent.that emergency access be used only in very limited and rare cir-cumstances and that it'was not intended to be used to circumvent other provisions of the Act.. Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity. The legislative history indicates that
' Congress believed that with the various management options available to ,
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, , q LLW. generators, including, for example, storage or ceasing to generate the waste,-that instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from
- the generators and the States / Compacts should resolve most access problems thus. precluding the ' necessity for involving the Federal sector in grant-
- ing. emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last r:. sort.
< Indevelopingtileemergencyaccessrule,NRCtriedtobeconsistent both'with the actual text of Section 6 of the Act and with the intent expressed by Congress regarding decisions made pursuant to Section 6.
The_ rule sets strict requirements for granting emergency access and iihould serve to encourage potential requcsterc to seek other means for resolving the problems created by denial of access to LLW disposal facil-ities. The rule places the burden on the party requesting emergency 6
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- access to demonstrate that the criteria in the rule have been met and emergency access is needed. Applicants for emergency access will have to provide clear and convincing evidence that they,have exhausted all ,,
other options for managing their waste. By establishing strict require-ments for approving requests for emergency access, NRC intends to rein-force the idea that problems with LLW disposal are to be worked out to ,
the extent practical among the States,'and that emergency access to '
existing LLW facilities will not automatically be available as an alter- .,
native to developing that capacity. NRC believes this interpretation is ^'
consistent with a plain reading of the Act and the supporting legisla-tive history.
Section 6(g) of the Act requires the NRC to notify the Compact l Commission for the region in which the' disposal facility is 1ocated of any NRC grant of acesss "f or .such approval as may be required under the ,
terms of its compact." The Compact Commission "shall act to a'pp. rove emergency access not later than fifteen days after receiving notifica- ,
tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant,
- allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in l Section 6(h) of the Act have not been exceeded.
However, it is clear from the legislative history of the Act that Section 6(g) should not,be construed as providing the. Compact Commission with a veto over the NRC's grant of emergericy access. The basic purpose .
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of the Section 6 emergency access provision is to ensure that LLW dis-posal sites that have denied access to certain States under provisions of the Act will be scde available to receive waste in situations posing a ;
serious and immediate threat to the public health and safety. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework ,
establis'ad in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of'a Compact shou,1_d be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and vo.id. H.R. REP. No. 314, 99th Cong., 1st Se.ss., pt. 1, at 2997 (1985).
IV. NRC Approach. .,
In Geveloping this rule, the NRC's approach was to:
- 1. ensure that all of the principal provisions of Section 6 of the Act are addressed in the regulation.
- 2. identify the information and certifications that will have to be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. ensure that the criteria and " acedures that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a request as specified in the Act.
- 4. establish criteria and procedures for designating a site to receive the waste that are fair and equitable and that are consistent
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4c with the other' provisions of the Act, including the limits on the amount of waste that can be disposed of at each operating facility.
- 5. establish requirements for. granting emergency access that are
, stringent enough.to discourage the unsited States and regions from vie,w-ing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond .
- appropriately in' situations where emergency access is genuinely needed-to protect the public health and safety or the common defense and security.
V. Assumptions NRC made several assumptions in developing this rule. ,
NRC assumed that the wastes requiring disposal under the emergency
. access provision will be the result of unusuai circumstances. The nature of routine LLW management is such that it is difficult.to conceive of situations where denial of access to disposal would create a serious and immediate threat to the public health and safety or the national secu-rity. In most cases generators should be able to safely store routinely generated LLW or employ other options for managing the waste without
. requiring emergency access. Thus, if all the LLW generators in a State were denied access to LLW disposal facilities, NRC would not expect to receive a blanket request for emergency access for all of the LLW generated in that State, or for all of the LLW generated by a particular .
kind of generator since the need for emergency access would be different l
in each case.
NRC has also assumed that requests for emergency access will not be made for wastes that would otherwise qualify for disposal by the f 9
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l Department of Energy (DOE) unde'r the unusual volumes provision of the Act *
[Section 5(c)(5)]. This means that NRC does not intend to consider requests for emergency access for wastes generated by commercial nuclear power stations as a result of unusual or unexpected operating, main-tenance, repair, or safety activities. Section 5(c)(5) of the Act specifically sets aside 800,000 cu ft of disposal capacity above the ,
regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual volumes I allocation," NRC believes emergency access should be reserved for other LLW, until the 800,000 cu ft allocation is exceeded.
.NRC considered basing its decisions for granting emergency access solely on quantitative criteria, but decided against that approach.
. While NRC hp ident,ified some o,f the wastes and the scenario,s which would create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated. Largely, because of the ,un, certainty associated with identifying all of the circumstances under which emer-gency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides maximum flexibility in considering requests for emergency access on a case-by-case basis.
VI. The Final Rule I The final rule contains four Subparts, A, B, C, and D. These.
Subparts set out the requirements and procedures to be followed in requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here. ,
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Subpart A - General Provisions Subpart A contains the.. purpose and scope of the rule, definitions, instructi"ons for. communications with the Commission, and provisions relating to interpretations of the rule. Subpart'A states that the rule applies to all persons as defined by this regulation who have been denied access to existing comercial LLW disposal facilities and who submit a .
request to the Comission.for an emergency access determination under Section 6 of.the Low-Level Radioactive Waste Policy Amendments Act of 1985. Subpart A also emphasizes that the emergency access rule applies only to those' subclasses of LLW for which the States have disposal l: ; responsibility under Section 3(1)(a) of the Act.
.Subpart B. , Request for a Comis,sion Determination ,
Subpart B specifies the information that' must be submitted and the !
procedures that must be followed by a person seeking a Commission deter-mination on emergency access.
Specifically, Subpart B requires the submission of information ;
on the need for access to LLW disposal sites, the quantity and type of ;
material requiring disposal, impacts on health and safety or common defense and security if emergency access were not granted, and cons *Jeration of available alternatives to emergency access. This information will enable the Commission to determine:
(a) whether a serious and immediate threat to the public health and m safety or the comon defense and security might exist, -
(b) whether alternatives exist that could mitigate th threat, and (c) which non-Federal disposal facility or facilities should -
provide the required disposal. .
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'In addition, Subpart B also sets forth procedures for'the filing and distribution of'a request for a Commission determination.- It provides for publishing in the Federal Register a notice of receipt of a request' for emergency access to inform the public' that Comission action on .the
-re' quest is pending. Although comment is not required by the Act or the Administrative Procedure Act, Subpart 8 provides for a 10-day public comment period on the request for emergency access.
-In the event that the case for requesting emergency accessi 's to be based totally or in part on the threat posed to the common defense and security, Subpart B specifies that upon receiving such a request, NRC will consult with the Department of Energy (DOE) and/or the Department of Defense (D00) to ascertain the importance to the common defense and
.s.ecurity o.f the activities producing the LLW for which emergency access
.is requ,ested. -
Subpart C - Issuance of a Comission Determination For the NRC to grant emergency access, the Commission must first conclude that there is a serious and immediate threat to the public i
health and' safety or the common defense and security, and second that there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and i
for granting temporary emergency access; establishes the criteria and standards to be used by the Commission in making those determinations; and specifies the procedures to be feliwed in iss'uing them. !
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Subpart C provides that NRC, in determining whether there is a h serious and immediate threat to the public health and safety, will consider: (1) the nature and extent of the radiation hazard that would resu,lt from the denial of access including consideration of the standards for radiation protection contained in 10 CFR Part 20, any standards governing the release of radioactive materials to the general environment that are applicable to the facility that generated the low-level waste, and any other Commission requirements specifically applicable to the
. facility or activity which is the subject of the emergency access request and, (2) the extent to which essential services such as medical, thera-peutic, diagnostic, or research activities will be disrupted by the denial of emergency access.
In determining ~whether there is a serious and immediate threat to the common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW'is necessary to protect the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will seek and consider D0D and DOE viewpoints on the importance of the activities responsible for generating the LLW to the common defense and security.
Under Subpart C, if the Commission makes either of the above deter-minations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor. The Commissionwillconsidirwhetherthepersonsubmittingtherequesthas identified and evaluated the alternatives available which could potent-ially mitigate the need for emergency access. The Commission will 13
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4 consider whether the person requesting Gmergency access has considered '
all factors in the evaluation of alternatives including state-of-the-art.
technology and the impacts of the alternatives on the public' health.and' safety. For each alternative, the Comission will also consider whether the. requestor has demonstrated that the implementation of the alternative is unreasonable becaus'e of adverse effects on the public-health and safety or.the comon defense and security, because.it is technically or economically beyond the capability of the requestor, or because the alternative could not be implemented in a timely manner. '
Of particular concern.to Congress was the possibility that ceasing the activity responsible for generating the waste could lead to the cessation or curtailment of essential medical services. Section 62.25 of the rule provides that the Commission will consider the impact on.
. medical services from ceasing'the activity in making its determination thatthereisaseriousandimr$ediatethreat'tothepublichealthand safety. The Comission is also concerned as to whether the implementa-tion of other alternatives may have a disruptive effect on essential medical services. Section 62.12 specifically requests information on these impacts as part of a request for emergency access so they can be considered by the Comission in its overall determination about reason-able' alternatives.
According to the procedures set out in Subpart C, the Comission i
will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for i emergency access will be denied.
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If the Commission determines that there is a serious'and immediate threat.to the public health and safety or the common defense and security which cannot-be mitigated by any alternative, then the Commission will decide which operating non-Federal LLW disposal facility should receive the LLW approved for emergency access dispos'al.
Subpart C. sets out that in designating a disposal facility or facilities to provide emergency access disposal, the Commission will .
first consider whether a facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for dis- ,
posal at the site in the previous calendar; year. If the_ designation can-not be made on these factors alone, then the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, volume of emergency access waste previously accepted at each site, and any other information the Commission deems necessary.
In making a determination regarding a request for an extension of emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of
- the initial grant to eliminate the need for emergency access. .
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's 15 , ;
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policy. statement on abnorma1' occurrences, but will not have to reach a '
determination.regarding mitigating alternatives. . ,
Subpart D'.- Termination of Emergency Access' I' .
Subpart D establishes that the NRC may teminate'~a grant of emergency
-access'if the' requestor or_the type of waste do not meet the conditions established by NRC pursuant to this Part. It also establishes that the Commission may terminate emergency access when it determines that emergency access is no longer necessary to protect the public health and safety or;the common defense and security from a serious and immediate threat.
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VII. Rationale for Criteria This rule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these decisions is discussed below:
(a) Determination that a. Serious and Immediate Threat Exists.
Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common
. defense and security is key to N C R's dec sii ons to grant emergency access.
Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate threat."
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- . (1) To the Public health and safety-- I The criteria'in this rule for determining whether a serious and immediate threat to the public health and safety exists, address three , 1 situations. Section 62.25(b)(i) addresses the situation where the lack j of access would result in a radiation hazard at the facility that is j t 1 generating the LLW. Section 62.25(b)(ii) addresses the situation where )
l the threat to public health and safety would result from disruption of .
1 the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria,for granting temporary ]
emergency access. f
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The criteria used in this rule for determining whether a serious 1
and immediate threat to the public health and safety exists is qualita- l tive in nature in order to provide the Commission with the flexibility necessary to consider a wide range.of potential. factual situations.
How-
.ever, in maki.ng this qualitative determination, the criteria require the Commission to consider several existing quantitative standards. These ,
consist of the Commission's standards for radiation protection in 10 CFR Part 20, any standards on the' release of radioactive materials to the general environment that are applicable to the facility that generated the LLW, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access requent. This latter category would include license provisions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to ensure that a serious and immediate threat to the public health an'd safety did not result from a denial of access. In addressing this con-cern, the Commission will evaluate the request for emer'gency access in 17
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its entirety, i.e. , .the threat to public . health and safety and the alter- .
1 natives to emergency access that may be available to mitigate that -
threat. In other words, in determining what constitutes a serious and 1
immediate threat to public health and safety, the Commission must con-sider what threat would be unacceptable assuming that no alternatives are available. In the Commission's judgment, any situation that would ,
result in exceeding the occupational dose limits or basic limits of public expowra upon which certain requirements in 10 CFR Part 20 are ,
1 founded weu . oc an unacceptable threat to the public health and safety, and should be considered for emergency access.
Tha legislative history of Section 6 of the Act does not provide any illustrations of a situation where a serious and immediate threat to the public health and safety would be created at the facility at which the 3 l
waste is stored, 'a1though 'it is clear that Congress was concerned over the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not antici-pate any situation where the lack of access would create a serious and immediate threat to the public health and safety. However, in order to )
be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, this rule establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission would act j immediately to prevent or mitigate any threat to the public health and I
safety, including shutting down the facility. However, there may be j circumstances where a potential safety problem would still exist, after the facility was shut down or the activity stopped, if the low level waste could not be disposed of because of denial of access. In this ~
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situation, emergency access may be needed. The Commission would empha- .
l size first, that it is extremely unlikely that a serious and immediate threat to the public health and safety will ever result at the genera '
tor's facility from the lack of access to a disposal facility, and l ~
i second, if such a situation does exist, the Commission will move imme-diately to eliminate the threat.
If the Commission does receive a request for emergency access based 7 i on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the <
l Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This l is separate from a finding that a serious and immediate threat to the 1
public health and safety would exist if the activity were forced to shut -' .
down.
Section 6(d) of the Act allows the Commission to grant temporary l emergency access for a period not to exceed 45 days solely upon a finding l
l of a serious and immediate threat to the public health and safety. In order to grant temporary emergency access, the Commission is not required to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of tempo-rary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for granting temporary emergency access that require the consideration of .
more serious events. For purposes of granting temporary emergency access under Section 6?.23, the Commission will corsider the criteria and <
. examples contained in the Commission's Policy Statement (45 FR 10950, February 24,1977) for determining whether an event at a facility or ,
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- activity licensed or otherwise regulated by t'e hCommission is an abnormal occurrencewithinthepurviewofSection208oftheEnergyReorganizatign Act of 1974. This provision requires the Commission to keep Congress and
' the public' informed of unscheduled incidents or events which it considers significant from the standpoint of public health and safety. Under the criteria established in the Commission's policy statement, an event will .
be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and safety. Such an event could include--
- a. Moderate exposure to, or release of, radioactive material;
- b. Major degradation of safety related equipment; or
- c. Major deficiencies in design, construction, use of, or i management controls for 1.icensed .facil-ities o.r activities.
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In deciding whether to grant temporary emergency access, the Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security--
Although NRC is required by the Act to determine that there is
. either a serious and immediate threat "to the public health and safety," !
1 or to "the common defense and security," realistically NRC cannot make )j the latter judgement without some information from D0D and DOE which
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will assist NRC in identifying those situations involving the denial of
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access to LLW disposal which constitute serious and immediata threat to the national defense and security, or the importance of a particular ;
LLW generator's activities in maintaining those objectives. While NRC 20
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has the Congressional mandate for this determination, the staff believe it necessary to consider D0D and DOE information as part'of.the decision-making process.
l NRC considered several approaches for involving D0D and DOE in the process of determining whether requests for emergency access should be granted on the basis of a serious and immediate threat to'the common -
defense and security. In the proposed rule NRC decided that the best way to provide such interaction would be to require that requests filed with NRC for emergency access on the basis of a serious and immediate threat to the common defense and security, would have to include appropriate certification from DOE and or D00 substantiating the requestor's claim that such ,a threat would result if emergency. access is not granted. NRC proposedthatthenecessarycertificationin'theformofastatementof - -
support should be acquired by the requestor prior to applying to NAC for emergency access so the statement of support could be a part of the actual petition. i Discussions with D0D and DOE regarding the proposed arrangement have led NRC to include a modified procedure in the final rule. A generator whose request for emergency access is based in whole or in part on a serious and immediate threat to the common defense and security is no longer required to include a D0D and or DOE statement of
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support for that claim in'the request package submitted to NRC. Rather, NRC will consult with D0D and or DOE directly to ascertain the importance of the activities responsible for generating the LLW to'the common defense and security. In reaching a determination as to whether 1
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emergency access should be granted in order to protect the common i l
defense and security, the NRC will consider whether DOE and or D0D -
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. support the generator's claim regarding the strategic importance of the- 4 activity. '
Negotiations with D0D and DOE regarding this procedure were underway in parallel with the development of the final rule. Letters of intent between the NRC and D00 and DOE that establish the process for obtaining the D0D and DOE recommendations on the importance of the -
requestor's. activities to the common defense and security are expected by the time the rule is published. D0D and DOE staffs are aware of the
- 45. day response time imposed on NRC to make the emergency access determinations and.the agreement will provide for expeditious action by D0D and DOE.
Congress de'liberately gave.the NRC the responsibility for making the common defense and security deterniinatian rather than leavin.g the;diter-
- mination with D00 or DOE. So while the Commission intentfs to give the D0D and DOE ~ statements of support and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive.
.(b) Determination on Mitigating Alternatives.
'As directed by Section 6 of the Act, even if a situation exists which poses a serious and immediate threat to the public health and safety or the common defense and security, emergency access is not to be granted if alternatives are available to mitigate the threat in a manner consistent with the public health and r.afety. Requestors for emergency access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remaining is emergency acce'ss. Only after this has been demonstrated to NRC will the Agency proceed with a grant of emergency access. /
22
. Alternatives which,'at a minimum,.a requestor will have to_ evaluate are set out in Section 6(c)(1)(B) of'the Act. They include'(1)' storage of LLW at the site of generation or in a st'orage facility, (2) obtaining access. to a disposal facility by ~ voluntary agreement, (3) purchasing disposal capacity available for assignment pursuant to Section 5(c) of the Act, and (4) ceasing the activities that generate the LLW. .
~While 6(c)(1)(B) of the Act sets these out as possible alternatives which.a generator must corjsider before requesting emergency access, NRC has identified other possible alternatives to emergency access which should be considered, as appropriate, in any requests for emergency
. access. These additional alternatives are discussed below.
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and o'perators of commercial nuclear reactors with special access to disposal in the event that unusual or unexpected operating, maintenance, repair or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual olume provision would exceed the 800,000 1 cubic feet allocated for those purposes. Tnus, NRC has taken the posi-tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access i
should not be requested. Applications for emergency access for wastes which NRC de,termines would otherwise be eligible for disposal under the unusual volumes provision, will be denied.
Another alternative applies only to Federal or defense related L
generators of LLW. NRC will expect that generators of LLW falling into .
23 m
either o'f these categories will attempt to arrange for cisposal at a Federal LLW disposal facility prior to requesting access to non-Federal
- facilities under the emergency access provision. -
The Commission fully intends that the States and Compacts whose .
)
generators have been denied access to LLW disposal will share in the l responsibility for identifying and providing alternatives to emergency access. NRC's expectation is that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer-gency access will be requested. A request for emergency access is to !
include a discussion of the consideration given to any alternatives available to the requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of the'se, and the actions taken. '
For all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process leading to a request for emergency access. The requestor will be expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna-tiv e considered; (3) demonstrate that consideration has been given to combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even on a tempo-rary basis, until other arrangements can be made; (4) evaluate the costs, economic feasibility, and benefits to the public health and safety of the potential alternatives, and.(5) incorporate the results into the request.
(c) Designation of Site.
l l
24 .
_ _ _ _ _ _ - _ _ _ _ - _ . _ . - _ _ i
7 In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access, NRC will determine which of the disposal facilities would qualify under the ,
limitations set out in Section 6(h) of the Act. According' to those
~
limitations, a site would be excluded from receiving emergency access waste if (1) the LLW does not meet the license criteria for the site; (2) the_ disposal facility meets or exceeds its capacity 1. imitations as ,
set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or-(4) the volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act '
alone, the Commission will consider other factors including the type of waste, previous disposal practices,; transportation requirements, radio.
logical effects of the waste, the capability for handling the' waste at each site, the volume of emergency access waiste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible among the available operating, non-Federal or regional LLW disposal facil-ities. To the extent practicable, NRC intends to rotate the designation of the receiving site, and, for the three currently operating facilities, to allocate emergency access disposal in proportion to the volume limita-tions established in the Act. In most cases, NP.C would expect tha' t the designation of a single site will minimize handling of and exposure to the waste and best serve the interest cf protecting the public health
- [
25
-4
'and safety. However, if the_ volume of waste requiring emergency access disposal is large, or if there are other unusual or extenuating circum , ;
stances, NRC will evaluate the advantages and disadvantages of designat-ing'more than one_ site to receive waste from t,he same requestor.
In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date (both -
for the year and overall), and whether the serious and frmediate threat posed could best be mitigated by designating one site or more to receive the waste.
'In order for NRC to make the most equitable site designation deci- J sions, the Agency will have to be well informed regarding the status of' disposal capacity for each of the commercially operating waste disposal facilities. NRC is currently in the process of' developing a syst.em to
, provide this information. -
. It should be noted that in setting out the site designation provi-sion for Section 5, Congress assumed there would always be a site deemed appropriate to receive the emergency access waste. However, this may not be the' case if'all sites are eliminated by application of the limitations provision set forth in the Act. It is not clear what options Congress intended NRC to consider if all sites are deemed inappropriate to receive the LLW. This may have to be addressed by Congress at some time in the l future.
(d) Volume Reduction Determination. .
.Section 6(i) of the Act requires that any LLW deliveted for disposal as a result of NRC's decision to grant emergency access "should be i reduced in volume to the maximum extent practicable." NRC will evaluate the extent to which volume reduction methods or techniques will be or ,
- l 26 L
i4 f'. '
l: - .
L .- - have been applied to the wastes granted emergency access in order.to arrive at a finding in regards to this provision.
NRC may receive a-request for emergency' access where the applica ,
. ... tionofvolume;reductiontechniquesmaybesufficienttomitigatethe threat. posed to the public health and safety. As a result,-NRC plans to evaluate the extent to which waste has been reduced in volume as'a part 1
p of.its mandated evaluation-of the alternatives considered by the genera- -
l tor. From that evaluation,.the NRC could reach a finding on whether the waste has been reduced in a manner consistent with Section 6(i). ,
l As is so for the other determinations NRC will have to make pursuant to.Section '6, volume reduction determinations will be made on.a case-by-case basis. The optimal level of volume reduction will vary with the
, waste, the conditions under which it is being processed or stored, the administrative options available, and whether volume reduction. process-ing creates new wastes requi. ring treatment or disposal. In evaluating whether the wastes proposed for emergency access have been reduced in volume to the maximum extent practicable, NRC will-consider the charac-teristics of'the wastes (including: physical properties, chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity,'and explosive potential); condition of current' container; potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (includ-ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin-
' film evaporators; extruders evaporators; and Compactors); the suitability of volume 4 reduction equipment to.the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker exposure, and 27
__________._______._______.-_____________.______.._._________________.__._________.___.___________._____.__________._______.____.__.m._. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ . _ _ _ _ _ _ _
)
l'
- equipment availability); and the administrative. controls which could be
- fapplied.. ,
y 1 VIII. . Terms and Conditions for Emergency Access Disposal l
l .LLW granted emergency access disposal pursuant to this rule is subject-to 'he t general requirements for LLW disposal as established in l -the Act, as well as those' requirements which specifically address emer-gency access. This means that LLW granted emergency' access shall be processed,. treated and disposed of in a manner consistent with any other LLW which.is eligible for disposal-at operating non-federal or regional LLW disposal facilitie's under the Act. The disposal of waste by grant
_of emergency access should.not preclude the implementation of any j
,, specific conditions,-regulations, requirements, fees, surcharges or.-
taxesprescribed.bythedisposalfacilitythatmaybeineffectatthe time of~the Commission's determination to grant emergency access. How-ever, while generators whose LLW is granted emergency access are subject to the special fees and surcharges.specified in the Act for emergency access disposal, they should not otherwise be subject to' fees or require- j ments that are not customarily charged or imposed for routine LLW
-disposal.
IX. Analysis of Public Comments The Commission received twenty-one (21) comment letters for the proposed rule. Ten (10) of the comment letters came from concerned j citizens, six (6) from the governments of potentially affected States, two (2) from low-level waste compacts, two (2) from the industry and one (1) from a nuclear information service. A detailed analysis of each ,
28 i
of the comments was prepared and used to revise the proposed rule. The major comments are discussed here. Copies of the comment letters and the detailed analysis of comments are available for public inspection and ,
copying for a fee at the NRC Public Document Room, 2120 L Street NW.,
Washington; DC.
In general, commentors expressed support for NRC's issuance of a rule for its emergency access decisions and indicated changes that would -
improve it from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuance of the rule. That commentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage their LLW.
The Act established the statutory framework for the management of LLW including the allocation of management responsibility between the Federal government and Sie States. Th'e. emergency access rule merely impi ments part of the existing statutory' framework, so the rule,itself does not infringe on the rights of the States.
Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that 1
emergency access would be used to force operating non-Federal or regional 1 LLW disposal facilities to accept LLW they are either clearly not respon-sible for under the Act, or have specifically chosen to exclude from I their facility. Fourteen of the commentors in almost half of the com-ments expressed concern that emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, the com- l mentors stated that Federal wastes, particularly those generated by 29 l
l i
h.
r
[ DOE and D0D, or' wastes that- are classified as . greater-than-Class-C,
.should not 'e: b granted emergency access. Mar:y of.the commentors indicated that States and Compacts are not designing their facilities to provide safe disposal for these types of LLWs. Most of the commentors who expressed concern about which wastes would be granted emergency access
- were c,oncerned that LLWs determined to be ineligible for routine disposal ,
under the Act, could g&in access to disposal at State or regional facil--
l-ities'under the emergency access provision.
Throughout the development of Part 62,.the NRC assumed that its.
mandate was to grant emergency access only to LLW that would otherwise be eligible for routine disposal at State or regional LLW disposal facil-ities according to the. terms and conditiens set out in the Act. More specifically,theNRdbelievesthatonlythoseLLWsdesignatedbySection
- 3(a)(1) of the Act to, be the disposal respon'sibility of the Stat'es could' be eligible for a grant of emergency access disposal.
Under Subsection 3(a)(1)(A), the States are mandated to provide disposal for commercially generated LLW classified as A,-B and C. They are not required to provide disposal for greater-than-Class-C wastes.
Thus, the NRC would expect to deny any request for emergency access received for greater-than-Class-C waste. The same is true for the Federally generated LLW which is excluded from State disposal respon-sibility under Section 3(a)(1)(B). Under that subsection, the States are assigned the responsibility for disposing of "LLW generated by the Federal government except that which is owned or generated by DOE,'by the Navy as a result of deconanissioning of vessels, or as a result of any research, development, testing, or production of any atomic weapons." l 30
.. NRC does not expect to grant emergency access to any wastes that are exempted from State responsibility by Section 3(a)(1)(B).
The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act.
However, the Commission did not state its intentions in the proposed rule. The Commission assumed that it would be clear that the limitations established in the Act for routine LLW disposal would also apply for -
disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the NRC's understanding and intent regarding the scope of wastes which the NRC considers to be potentially eligible for emergency access, the NRC added a new provision, (c) to Section 62.1,
" Purpose and Scope" of the final rule. The new provision states that "The regulations in this Part apply only to the LLW's which the States have disposal responsibility for pursuant to Section 3(a)(1) of the Act."
, The NRC believes the addition of this clarificati'on to the final rule -
should resolve any questions regarding a particular ,LLW's eligibility for emergency access consideration as well as the Commission's intended application of the final rule.
Reciprocal Access Several of the commentors pointed out that the proposed rule omitted any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. Section 6(.f) provides that the Regional Compact or State receiving the emergency access waste is entitled to
, reciprocal access at any subsequent facility that' serves the Compact .
region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the i
31 9
emerg:ncy access waste shall designate, for r:ciprocal access, "an equal ,
volume of Low-level radioactive waste having similar characteristics to '
that provided emergency access.i' s Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reciprocal access should 1 be addressed in the final rule. Most of the commentors who raised reciprocal access concerns believed the NRC should broker reciprocal access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the reciprocal access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facili,ty. They stated that reciprocal access is of particular concern because a receiving Regional Compact or State has virtually no .
leverage or role to play in the emergency access process and a guarante'e of reciprocal access would make the situation more acceptable. They ,
indicated reciprocity is an integral part of Section 6 and should be part of the rule.
One commentor indicated that even if the NRC did not wish to be involved in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications are considered."
The commentor indicated that a formal reciprocal access acknowledgement should be extracted from the Compact Region or State in which the emer-gency access waste was generated before any determination for granting emergency access is made. They indicated that such an acknowledgement should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of 32
when the reciprocal access would be provided. Tne acknowledgement could
, then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the Compact Commission." .
The NRC recognizes that the commitment to reciproca1' access is an integral part of the emergency access process, particularly for the States with the operating LLW disp'osal facilities which will be designated by NRC to receive emergency access waste. Staff considered reciprocal -
access during the development of the proposed rule. At that time, the l I
NRC made a decisien not to address reciprocal access as part of the rule {
j on emergency access. As NRC staff're~ad Section 6(f), arranging for l l
reciprocal access is an obligation between States / Compacts unrelated to '
'the Commission's responsibility to protect public health and safety and the commnn defense and security and thus is outside the scope of NRC's responsibility to implement Section 6. Thus, Staff believed it would be
'i appropriate for the NRC to assume the role of enforcing reciprocal access arrangements.
The NRC reconsidered its position on reciprocal access in light of .
I the comments received on the proposed rule, but made no changes to the i final rule. The NRC's mandate under Section 6 is to grant requests for l emergency access in order to protect the public health and safety and the i common defense and security from a serious and immediate threat. If the j NRC were to require a formal promise of reciprocal access as a necessary l condition for considering a request for emergency access, under certain circumstances, actions,necessary to protect the public heelth and safety could be delayed or compromised. Thus, the NRC continues to believe that" an enforcement role regarding reciprocal access 1s inappropriate for the NRC. The Commission also believes that any role regarding reciprocal 33
(
access,.even of-a'brokering nature, could be.in conflict with theCommis-sion's basic:mhndate to.make emergency access decisions. The NRC maintains' ,,
that arranging for reciprocal access in response to grants of emergency, access'is-the responsibility of the States and Compacts involved.
The NRC believes that the promise of reciprocal access desired by the commentors could be initiated during the 15 day period required by the Act under Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation.
As noted above, Section 6(f) entitles any Compact or State that-e provides emergency access to a disposal . facility within its borders to reciprocal access to any subsequently operating disposal facility that serves the State or compact region in which the LLW granted emergency access was generated. The Commission anticipates-that any Compact or State that provides emergency access would take action to enforce this
. statutory'right if the State or Compact in which'the emergency access waste was generated does not accept an equal volume of low-level radio-active waste having similar characteristics at some future date.
Compact Approval of Grants of Emergency Access Three of the commentors representing States or Compact Commissions indicated that the NRC 2. d been remiss in not including a provision in I
the proposed rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Commission of the region in which the designated site is located. The commentors also wantad the rule to state that "no grant of emergency access unde this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission," in order to establish that Compact 34
l- .
Commission approval would be necessary before the NRC's decision would be considered final. The resolution of the issue-rais~ed by these comments is fundamental to the successful implementation of Congressional intentx for the emergency access provision of the Act.
The basis for these e m :nts is the language in Section 6(g)*of the Act. It states that "any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its Compact." The commentors interpretation of this provision is that Congress intended for the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency accnss determination - essentially that Congressintended'thecompactstohavethepower.toIetotheNRC's decision. The commentors wanted the NRC to acknowledge this interpreta-tion of Section 6(g) by incorporating a veto / approval provision in the final rule.
While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Secticn 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in Section III, Legislative History of the Supplementary Information portion of the proposed rule and is reiterated in the same section of the final . rule.
Section 6(g)'of the Act requires the NRC to notify the Compact Commission for the region in*which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of the Compact." However, Section 6(g) also requires that the 35
Compact. Commission "shall act to approve emergency access not'later than .
15 days after receiving notification from the NRC." NRC believes'the -
purpose of this provision is to (1) ensure that the Compact Commission '
is aware of the NRC's grant'of emergency access and the terms of the grant; (2) allow the Compact. Commission to implement any administrative l
procedures necessary to carry out the grant of access, and (3) ensure that the. limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded.
Contrary.to what several of the commentors believe, the NRC believes that disapproval is not really an option for the Regional Compact Commission in which the designated emergency access disposal facility would be located. This position is derived from the legislative history for both:Section 6 of-the Act and the'0mnibus Low-Level Radioactive Waste
' ~
Intersta'teCompact'Actwhichwaspassed*bhCongressaspartofthe,Act. ,
It is clear from the legislative history that th'e basic purpose of'the _
Sliction 6 emergency access provision is to ensure that LLW disposal sites which have denied disposal access to certain States under provisions of the Act will be made available to receive LLW in situations posing a serious and immediate threat to the public health and safety. A Compact Commission veto of the NRC's decision would frustrate.the purpose of the emergency access provision and would be generally contrary to the legisla-tive framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with '
the provisions of t:he Act. If the Compact refuses to provide, under its
. i 36
own authorities, emergency access under Section 6, Congressional ratifi-cation of that Compact would be null and void. [H.'R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).]
While disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding the emergency access decision made by the NRC. The Commission believes the Notification procedures under S 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 of t.he proposed rule provided that the NRC will notify the Compact Commission of the State in which the designated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that emergency access was, granted and specifica1.ly describe the low-level radioactive.was.te as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and serious threat to the public health and safety or the common defense and security.
In response to this comment, the NRC has made a change to the final l rule. New language has been added to S 62.22 which states that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
Applicable Terms and Conditions for Emeroency Access A number of the commentors expressed concern that LLW granted emer-gency access to disposal by the NRC should be required to meet any 37 4
conditions of the site designated, as well as any fees, or taxes .
prescribed by that facility. Other commentors stated that LLWs granted emergency access. disposal should not have to pay any special fees, beyond 1 those specifically mandated by the Act. In both cases the commentors wanted assurances incorporated into the rule that in making emergency access site designation determinations, the NRC would protect both the health and safety interests and the financial interests of either the '
disposal facility designated to receive the LLW, or the person requesting emergency access. In addition, they wanted assurances included in the rule that the NRC would consider the fees, taxes, etc. in designating a site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the earlier discussion about the response to comments concerning which wastes are eligi'ble for emergency access. As previously stated, the Commission ,
believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act).
To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility desig-nated to receive the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emergency access or reciprocal access to any regional disposal facility within its borders for low-level j radioactive waste not meeting criteria established by the license or license agreement of such facility, ..
To ensure that the designated site is suitably matched to the i
LLW granted emergency access, the NRC included a provision in the proposed 38
L t; c
rule which stated that'a LLW disposal site will be excluded from considera-tion to receive emergency access waste if the waste does not meet the
-criteria' established by the license or licensee agreement.for the facil ,
ity [62.26(b)(1)]. The license or licensee agreements incorporate the regulations and requirements that affect _each particular facility. Taken with the other information in Section 62.26, which the NRC will consider before designating a site,.the' Commission believes Section 62.26 as it -
appeared'in the proposed rule adequately addresses the NRC's responsibil-ity to' designate a site which does not~ preclude "the implementation of any specific regulations, and requirements at the designated disposal facilities."
Regarding fees, taxes and other conditions that several commentors believed the NRC should consider in designati.ng a site, the NRC believes
,that Cong'ress intended for gen'erators who ar'e; granted emergency' access to
" pay all the normal LLW disposal fees as well 'as tiie additional fees or surcharges specifically applicable to emergency access waste and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designation decision.
The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the I
Commission. In response to the comments, the NRC added a new Section I "VIII" to the Supplementary Information portion of the final rule titled, i
" Terms and Conditions for Emergency Access Disposal." It sets out the responsibilities regarding the'di'sp'osition of emergency access for both 1
the generator of the LLW granted emergency access and the operating dis-1 posal site or sites which have been designated to receive the waste. The 39
new section reaffirms the NRC's understanding of Congressional intent .
that whatever conditions'or terms.normally apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the; 4
Act. '
Conditions of Termination I Four of the commentors suggested the addition of a new section or - '
subsection to the rule to address the conditions under which emergency access could be terminated. The Commission agrees that terms and condi-tions should be established in the final rule for tennination of grants of emergency access. The NRC has added a new Subpart D to the final rule which incorporates some of the suggested conditions for termination as recommended by the commentors. The.Subpart is entitled, " Termination of E'mergency Access." his T new Subpart D is discussed un' der'Section VI.(D)-
of the Supplementary Information foF this rule. It establishes that the Commission may terminate a grant of emergency access if an applicant has failed to comply with the conditions established by the NRC pursuant to this Part. It also establishes that the Commission may terminate a grant of emergency access if it determines that emergency access is no longer needed.
Response to Specific Request for Comments In the proposed rule, the NRC specifically requested comments on ,
certain parts or assumptions made by the NRC. Under Section VIII of the proposed rule, the NRC expressed an interest in receiving comments on--
(1) What scenarios are envisioned where emergency access would be required?
40 )
l
-(2) What are the potential problems with the NRC's approach to determining an immediate and serious threat to the public health and -
safety? '
(3) What are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense and security? -
(4) What are the potential difficulties with'the proposed approach for designating the receiving site? and (5) What should the NRC do if no site is found to be suitable for waste requiring emergency access?
Two of the commentors specifically addressed this request for comments, offering partial responses to some of the questions. One'of the comentors offered possible scenarios for emergency. access and both of the commentors suggest.ed that a. Federal facility ,should be developed td
~
accommodate emergency access wastes. The coments did not reveal any new perspectives for the NRC to consider so the final rule was not affected by the comments received.
In the proposed rule, the NRC specifically requested comments on the initial regulatory flexibility analysis from small businesses, small organizations, and small jurisdictions in order to determine if the final regulations should be modified such that less stringent, requirements could be imposed on small entities while still adequately protecting the l public health and safety. None of the comments received on the proposed rule addressed the impact of the regulation on small entities or the adequacy of the NRC's regulatory flexibility analysis. As a result, it was not necessary to change the final rule to accommodate the special needs of small business.
)
41 J
X. Finding of No Significant Environmental ,
Impact: Availability. .
y This rule establishes criteria and proceduras for a Commission -
determination undar Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety dr the' common defense and security. For the most part, the final rule is an '
administrative action which serves to codify the criteria and procedures in the Act. The adoption of such implementing criteria and procedures by promulgation of a . final rule does not have an environmental effect.
Therefore, the Commission has determined under the National Environ-mental Policy.Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal
, action s, significantly affecting the quality of the human environ' ment.and, therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for this determina- -
tion is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted in Section XIII of this rule.
i XI. Paperwork Reduction Act Statement The final rule adds information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). ,
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143.
Public reporting burden for this collection of information is estimated to average 680 hours0.00787 days <br />0.189 hours <br />0.00112 weeks <br />2.5874e-4 months <br /> per response, including the time for 42
. reviewing instructions, searching existing data sources, gathering and maintaining'the data needed, and completing and reviewing the collection of information. Send comments regarding this burden'estimat'e or any ,
other aspect of this collection of information, including suggestions-
~
for'. reducing this burden, to the Records and Reports Management Branch, M. . @ J~
Division of. Information Support' Services, Office of Administration and //25/17 A l'P-7(Si Resources Management,-U.S. Nuclear Regulatory Commission, Washing) ton 20555; and to the /kperver/c Adah.oner.dProjee + (3y Is'o--o!Y3 Offic. vi LiTwo.,et.ier, .";;;d:t: ^.f f -i s, Office 4@2M3 of Management and Budget, Washington, DC 20503.
XII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the-alternatives considered by'the Commission. ~ The, analysis is available for.
.inspectio'n, copying for a fee, at the NRC Public Document Roofr., 2120 L Street NW., Washington, DC 20555. Single copies of the analysis may be obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone (301) 492-3857.
XIII. Regulatory Flexibility Certification
'NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal
-facilities under Section 6 of the Act. Based upon the information avail-abTe and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
i 605(b), the Commission certifies that this rule will not have a signifi-cant economic impact upon a substantial number of small entities. )
43
b The rule has the potential to affect any generator of LLW as well as .
any existing LLW disposal facility.. None of the.LLW disposal facilities would be. considered to be a small entity. The generators of LLW are ,
nuclear power plants, medical and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac-turers, fuel fabrication facilities, and government licensees. Of these
. . categories, all but the power plants, fuel fabrication facilities, and government' licensees could potentially include small entities.
Although these categories may contain a " substantial number of small=
entities," the Commission does not believe that there'will be a signif-icant economic impact to these generators because the Commission does not anticipate that many generators will be affected by the rule. In order for the requirements of.the rule to be imposed on a generator, the
, generator (nust init.iate, the act' ion by. requesti.ng a grant of emergency access -from NRC. This would occur only because the generator has been denied access to LLW disposal. The impact of the recordkeeping require-ments on any affected licensees should be minimal since the information
.that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
The Commission is required by statute to make emergency access determinations. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to LLW disposal, the provision of emargency access will benefit any genera-tor of LLW, including small entities.
Establishing criteria and-procedures f'or requesting and' granting emergency access:through a rule will also benefit small and large genera-tors. This Part provides guidance to the generator on what informa- -
tion will' be required for making requests for emergency access and provides an orderly framework for making those requests. Also, the rule will enable generators to be,tter plan'to avoid LLW disposal access problems,.thus providing the certainty required for economic growth and -
development. .
l XIV. Backfit Statement The provisions of.10 CFR Part 50.109 on Backfitting do not apply to -
this rulemaking because this regulation is not applicable to production and utilization. facilities licensed under 10 CFR Part 50. -
XV. . List of ' Subject's .
Administrative practice and procedure, Denial of access, Emergency I access-to low-level waste disposal, Low-level radioactive waste, Low-level ,
i radioactive waste policy amendments act of 1985, Low-level radioactive -
waste treatment and disposal, Nuclear materials, Reporting and record-
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keeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
)
e 45 -
4
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . . . _ _ _ _ _ _ _ _ _ , _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ ._________J
.Part'62 - Criteria and Procedures for Emergency Access to ,
' Non-Federal and. Regional Low-Level Waste Disposal Facilities '
- 1. A new Part 62 is added to 10 CFR.to read;as follows:
.9 Subpart A - General Provisions
-Section:
6
2.1 Purpose and Scope
62.2 Definitions.-
62.3 Communications.
62.4 -Interprete+',ns.
62.5 Specific Exemptions.
62.8 ' Infor.mation C'ollection Requirements: OMB Approval Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request.
62.12 Contents of a request for emergency access: General information.
62.13-Contents of a request for emergency access: Alternatives.
62.14- Contents of a request for an extension of emergency access.
62.i5. Additional information.
62.16 , Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 Denial of request.
e 46 .
i
d Subpart C - Issuance of a Commission Determination l 62.21 Determination for granting emergency access.
~
62.22 Notice of issuance of a determination. -
62.23 Determination for granting temporary emergency access.
l 62.24 Extension of emergency access.
62.25 Criteria for a Commission determination. >
62.26 Criteria for designating a disposal facility.
l Subpart D - Termination of Emergency Access 62.31 Termination of Emergency Access.
AUTHORITY: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat.' 1242, 1248,'as amended (42 U.S.C. 5841, 5849); sect. 3, 4, 5, 6, ,
99 Stat. 1843,.1844., 1845, 1846, 1847, 1848, 1849, 1850,' 1851, 1852, 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f). j Subpart A--General Provisions S 62.1 Purpose and scope.
(a) The regulations in this part establish for specific low-level radioactive waste (1) criteria and procedures for grailting emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend- j ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a member of a Compact. and ;
(2) the terms and conditions upon which the Commission will grant this I emergency access.
47
(b) The regulations in this part apply to all persons as defined by l1 .this regulation, who have been denied access to existing regional or non-Federal. low-level radioactive waste disposal-facilities and who- s E
submit a request to the Comission for a determination pursuant to this part.
(c) The regulations in this part apply.only to the LLW that the l States have the responsibility to-dispose of pursuant t'.o Section 3(1)(a) -
of the Act.
i 5 62.2 Definitions.
As used this part:
"Act" means the Low-Level Radioactive Waste Policy Amendments Act i of 1985.(P.L.99-240).
i i
, ',' Agreement State" means a State that - (1) has entered into an agreement with the Nuclear Regulatory Commission under section 274.of the Atomic Energy Act of 1954 (42 U.S.C. 2021); and (2) has authority to regu-late the disposal of low-level radioactive waste under such agreement.
" Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985.
" Compact Commission" means the regional commission, committee, or board established in a Compact to administer such Compact.
" Disposal" means the permanent isolation of low-level radioactive wasta pursuant t.o the requirements established by i.he Nuclear Regulatory Commission under applicable laws, or by an Agrescent State if such isolation occurs in this Agreement State.
i' 48
j-s- "Eniergency access" _means access to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities'for a period not to exceed 180 days, which is granted by NRC to a generator s of_ low-level radioactive waste who has been denied the use of those facilities.
'! Extension of. emergency access" means an extension'of the access that had been previously granted by NRC to an operating non-Federal or -
regional low-level' radioactive waste disposal facility or facilities for
- a period not to exceed 180 days.
" Low-level. radioactive waste" (LLW) means radioactive material that (1) is not high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section IIe(2) of the Atomic Energy.Act of 1954
- [U.S.C. 2014(e)(2)]; and (2) the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste.
l 9 "Non-Federal disposal facility" means a low-level radioactive waste
' disposal facility that is commercially operated or is operated by a State.
" Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreement State licensed generator of low-level radioactive waste within the scope.of Section 62.1(c) of this part; any Governor (or for any " State" without a Governor, the chief executive I officer of the " State ) don behalf of any NRC or NRC Agreement State licensed generator or generators of low-level radioactive waste within 1
the scope of Section -52.1(c) of this part located in his or her " State";
~
or their duly, authorized 4 representative, legal successor, or agent. , i
" Regional disposal facility" means a non-Federal low-level radioac-1 tive waste disposal facility in operation on January 1, 1985, or sub- !
i sequently established and operated under a compact. .
f 49 -
" State" means any State of the United States, the District of ,
Columbia, and the Commonwealth of Puerto Rico. '
" Temporary emergency access" means access that is granted at NRC's. ,
discretion under Section 62.23 of this part upon determining that access is necessary to eliminate an immediate and serious threat to the public health and safety or the common defense and security. Such access expires 45 days after the granting and cannot be extended. -
S 62.3 Communications.
Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or may be delivered in person to the Commission's offices at 2120 L Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
S 62.4 Interpretations. I I
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by eny officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission.
S 62.5 Specific exemptions. ;
1 The Commission may, upon application of any interested person or -
1 . l upon its own irsitiative, grant an exemption from the requirements of the ;
regulations in this part that it determines is authorized by law and will ,
50 1
not endanger life or property or the common defense and security and is otherwise in the public* interest.
j
.S 62.8 Information collection requirements: OMB Approval.- '
(a) 'The Nuclear Regulatory Commission has submitted the informa-tion collection requirements contained.in this part to the' Office of j Management and Budget (OMB)-for approval as required by the Paperwork -
Reduction Act of 1980 (44 U.S.C. 3501 et seq.). OMB has approved the information collection requirements contained in this part under control number 3150-0143.
(b) The approved information collection requirements contained in this part appear in SS 62.11, 62.12, 62.13, 62.14, and 62.15.
Subp, art B--Request for a Commission Determination ,
S 62.11 Filing and distribution of a determination request.
(a) The person submitting a request for a Comission determina-tion shall file a signed original and nine copies of the request with the Comission at the address specified in S 62.3 of this part, with a copy also provided to the appropriate Regional Administrator at the address
'specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's author-ized representative under oath or affirmation.
(b) Upon receipt of a request for a determination, the Secretary of the Comission will cause to be published in the Federal Register a' notice ~ acknowledging raceipt of the raquest v.hich will require that public coment on the request be submitted within 10 days of"the date of the notice. A copy of the request will be made available fcr 51
L j insp:ction or. copying in the Commission's Public Document Room, ,
1" Washington, DC'. The -Secretary of the Commission will also transmit a f copy of the request to the U.S. Department of Energy, to the Governors of l
the-States of the Compact region where.the waste is generated, to the
~
l . Governors of the States with operating non-Federal low-level radioactive
~
waste disposal facilities, to the Compact Commissions with operating l: ~ regional low-level radioactive waste disposal facilities, and to the Governors of,the' States in the Compact Commissions with operating disposal facilities..
(c) Upon receipt'of a request.for a determination based on a
. serious and immediate threat to the common defense and security, the Commission will notify D0D and or DOE and provide a copy of the request as needed for their consideration.
~
(d) ' Fees applicable to a request for a Commission determination under' this part will be determined in accordance with the procedures set forth for special projects under category 12 of 9170.31' of this chapter.
(e) In the event that the allocations or limitations established in Section.5(b) or 6(h) of the Act are met at all operating non-Federal or regional LLW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity.is authorized by Congress:
$ 62.12 Contents of a request for emergency access: General Infonnation.
A request for a Commission determination under this part must include the following information for each generator to whkh the request applies:
(a). Name and address of the person making the request; (b) Name and address of the person (t,) or company (ies) generating
~
the low-level radioactive waste for which the determination is sought; -
52
(c) A statement indicating whether the generator is basing the request on the grounds of a serious and immediate threat to the public health and safety or the common defense and security. n
, (d) Certification that the radioactive waste for which emergency access is requested is low-level radioactive waste within Section 62.1(c) of this part. -
(e) The low-level waste generation facility (ies) producing the ~
waste for which the request'is being made; (f) A description of the activity that generated the waste; (g) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied access; (h) A description of the low-level radioactive waste for which emergency at: cess is requested, including--
(1) The characteristics and composition of the waste,. including, l
but not limited to-- l 1
(i) Type of waste (e.g. solidified oil, scintillation fluid, failed j equipment);
I (ii) Principal chemical composition; (iii) Physical state (solid, liquid, gas);
(iv) Type of solidification media; and (v) Concentrations and percentages of any hazardous or toxic chemicals, chelating agents, or infectious or biological agents associated with the waste; (2) The radiological characteristics of the waste such as--
(i) The classification of the waste in accordance with S 51.55; >
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53
'(ii) A list of the' radionuclides present or potentially present in. -o the waste, their concentration or contamination levels, and total quantity; 2 -
(iii) Distribution of th'e radionuclides within the waste (surface or volume distribution); .
(iv) Amount of transuranic (nanocuries/ gram); )
(3) The minimum' volume of the waste requiring emergency access to I eliminate.the threat to the public health and' safety or the common 3 defense'and security, I
.(4) _ Ttie time duration for which emergency access is requested (not to exceed 180 days);.
(5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and
'(6) Description of the volume reduction and waste miniinization. ~
techniques' applied'tothewastewhichassurethatitisreducedtothe maximum extent practicable, and the actual reduction in. volume that occurred; (i)- Basis for requesting the determination set out in this part, including---
(1) The circumstances that led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation that is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; (3) A chronology and description of the actions taken by the person requesting emergency access to prevent the need for making such a request, e
54
4
- e ..
L including consideration of al'1 alternatives set forth in S 62.13 of this part, and any supporting documentation as appropriate; (4) An explanation of the impacts of the waste on the public health and safety or the' common defense and security if emergency access is not granted, and'the basis for concluding that these impacts constitute a serious and.immediate threat to the public health and safety or.the common defense and security. The impacts to the public health and safety or the common defense and security should also be addressed if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely; (5) Other consequences if emergency access is not granted; (j) Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans.
, to elimi'nate_the need f,or additional or. future emergency. access requests; (k) Documentation certifying that access has been denied; (1) Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul- .
taneously under consideration by the Department of Energy (DOE) for access through the tinusual Volumes allocation; (m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination.
S 62.13 Contents of a request for emergency access: Alternatives. 1 (a) A request for emergency access under this part must include information on alternatives to emergency access. The request shall 1.
55 -
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - _ _ _ _ _ _ - _ _ - - _ - - - - - - - - - - _ - - - - - - - - _ - - - - - - - - - _ - - - - -_ _--- J
include a discussion of.the consideration given to any alternatives, -
1 including,.but not limited to, the following:
l (1) Storage of low-level radioactive waste at the site of '
~
- generation; *
(2)' Storage of low-level radioactive waste in a licensed storage frility; (3) Obtaining access to a disposal facility by voluntary agreement; (4) Purchasing disposal capacity available for assignment pursuant
'to the Act;
~
(5) Requesting disposal- at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW; (6) Reducing the volume of the. waste; ,
(7) Ceasing activities that generate low-level radioactive' waste; and (8) Other alternatives identified under paragraph (b) of this section.
(b) The request must identify all of the alternatives to emergency access considered, including any that would require State or Compac,t action, or any others that are not specified in paragraph (a) of this sec-tion. The request should.also include a description of the process used toidentifytheaiternatives,adescriptionofthefactorsthatwerecon-sidered in identifying and evaluating them, a chronology of actions taken to identify and implement alternatives during the process, and a discus-sion of any actions that were considered, but not implemented.
(c) The evalu:tica cf each alternative must consider:
(1) Its potential for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of access to disposal; .
56 I
i
p, '
j
., e.
] '
.. (2) The adverse effects on public health and safety and the common defense and security, if any, of implementing each alternative, including the curtailment'or. cessation of any essential services affecting the x i
public health and safety or the common defense and security; (3) -The technical and economic feasibility of each alternative i including the person's financial capability to implement the alterna- l tives; -
(4) Any other pertinent societal costs and benefits; (5) Impacts to the environment; (6) Any legal impediments to implementation of each alternative, including whether the alternatives will comply with applicable NRC and NRC Agreement States regulatory requirements; and (7) The time required to develop and implement each alternative.
(d)' The'reque'stmustincludethebasis.for(1).rejectingeach .
alterna'tive; and '(2) concluding that no alternative is available. -
S 62.14 Contents of a request for an extension of emergency access.
A request for an extens: ion of emergency access must include.
(a) Updates of the information required in S 62.12-and S 62,13; and (b) Documentation that the generator of the low-level radioactive waste granted emargency access and the State in which the low-level radioactive waste was generated have diligently, though unsuccessfully, acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include (1) an identification of additional alternatives that have been evaluated-during the period of the initial grant, and (2) a discussion of any reevaluation of previously 4D 57 L
h , ,
considerad alternatives, including verification of continued attempts to gain' access-to'a disposal facility by voluntary agreement. -
- ! h l 5 62.15- Additional information.
(a) The Commission may require additional information from a pefson making a request _for a Commission determination under this part concern-ing any portion of the request.
~
(b) .The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to ' respond to -
a request for additional information under paragraph (a) of this section within ten (10) days from the.date of the request for additional informa-1
- i. . tion, or'any other time that the Commission may specify. This denial will '
not prejudice the right of the person making the request to file another
. request for,a Commission determination under this part.
S 62.16 Withdrawal of'a determination request.
(a) A person may withdraw a request for,a Commission determination under this part without prejudice at any time prior to the issuance of an i~itial n determination under S 62.21 of this part.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Connission determination under this part, S 62.17 Elimination of repetition.
In any request under this part, the' person mahing the request may incorporate by reference information contained in 6 previous application,,
58
-.-_-j
r ,
. Statement, or report filed with the Commission provided that these' refer-ences ars updated, clear,.and specific.
s 5 62.18 Denial of request.- .
'If.a request for a determination.is based on circumstances that are too. remote'and speculative to allow an informed determination, the Commission may deny the request.
Subpart C--Issuance of a Commission Determination S'62.'21 Determination.for granting emergency access. ,
(a). Not later than (45)-days after the receipt of a request for a Comission determination under. this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera -
,, tors l'ocatpd in.his or her State,'the Comission shall determine;w'hether--
'(1) Emergency access to a regional disposal facility or a non-Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of an imediate and serious threat (i) to the public health and safety or (ii) the common defense and security; and
-(2) The threat canot be mitigated by any alternative consistent with-the public health and safety, including those identified in S 62.13.
(b) In making a determination under this section, the Comission shall be guided by the criteria set forth in 5 62.25 of this part.
(c) A determ': nation under this section must be in writing and contain a full explanation of the facts upon which'the determination is based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional 59
I. '
m ,
L LLW disposal. facility or facilities for the disposal of wastes, specifi- -
. cally describe the low-level radioactive wasta as to source, physical and radiological characteristics, and-the mininium volume and duration "
(not to exceed 180 days) necessary-to eliminate the immediate threat to
- ,7 public health' and safety or the common defense and security. It may also
. i:ontain conditions' upon which the determination is dependent.
$ 62.22 Notice of issuance of a determination.
(a) ..Upon the issuance of a Commission determination the Secretary of the Commission will . notify in writing the following persons of the final determination: the person making the request, the Governor of the' State in which the low-level radioactive waste requiring emergency access was generated, the Governor of the State in'which the designated disposal
. .- ^
facility is l'ocated, and i.f pertinent, the appropriate, Compact Commission for such approval. as. is specified as necessary in Section 6(g) of'the Act.
For.the Governor of the State in which the designated disposal facility 1
is located and for the appropriate Compact Commission, the notification i
must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as.to source, physica1'and radiological characteristics, and the minimum volume and f
.1 duration (not to exceed 180 days) necessary to alleviate the immediate 1 1
and serious threat to public health and safety or the common defense and
, )
security. For the Governor of the State in which the low-level waste l 1
was generated, the notification must indicate that no extension of i 2 i emergency access will be granted under 5 62.24 of this part absent dili-gent State and generator action during the period of the initial grant.
1 e l
. 60 j
s' <
n_
f 2['" -(b) :The1 Secretary of the Commission will cause to be published in '
[' ,the Federsi Register a' notice of the issuance of the determination.
(c) The Secretary of.the Commission will main a' copy of the finals dettrainatNnavailableforinspectionin_theCommission'sPublic Document Room, 2120 L Street NW. , Washington, DC. , ,
5 62.23 Determination for granting temporary emergency access. -
(a) The. Commission may grant temporary emergency access to an appropriate non-Federal or regional disposal facility or facilities provided that the determination required under S 62.21(a)(1) of this part is made; I
(b) the notification procedures under S 62.22 of this'part are l
complied with; and.
,- - (c) the tiemporary emergency acces.s duration will not exceed .
forty-five (45) days. -
S 62.24 Extension of emergency access.
(a). After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or l
'her State, for an extension of emergency access th'at was initially granted i
under S 62.21, the Commission shall make an-initial determination of whether-- ,
~
(1) emergency access continues to be necessary because of an immed-iate and serious. threat to the public health and safety or the common defense and security; I (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and
/I ;
61 j
L
. I (3) the generator of low-level waste and the State have diligently '
though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access. -
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) and 62.22 of this part, must be followed.
- i S 62.25 Criteria for a Commission determination.
(a) In making th'e determination required by S 62.21(a) of this part, the Commission will determine whether the circumstances described in the request for emergency access create a serious and iminediate threat to the public health and safety or the common defense and security.
(b) In making the determination that a serious and immediate threat exists to the public health and safety, the' Commission will consider, notwithstandingtheavail'abilityofan[alternativeidentifiedinS62.13 of this part:
(1) The nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of--
(i) The standards for radiation protection contained in Part 20 of thiss Chapter; (ii) Any standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener-ated the low level waste; and 1
(iii) Any other Commission requirements specifically applicable to )
the facility'or activity that is the subject of the emergency access request; and .
62 l
J
- .(2)' The extent to which essential services affecting the public
' health and safety.(such as medical, therapeutic,' diagnostic, or research activities) will be. disrupted by the denial of= emergency access. ,
j (c) ,
For purposes of granting temporary emergency access under 5 62.23 of this part, the Commission will consider the criteria contained l
in the Commission's Policy Statement (45 FR 10950, , February 24, 1977) for 1
. determining whether an event at a' facility or activity licensed or -
otherwise regulated by the Commission is an abnormal occurrence.within 9
the purview of Section 208 of the Energy Reorganization Act of 1974.
(d). In making the determination that a serious and immediate threat to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in S 62.13 of this p' art (1) whether the activity generating the wastes is necessary
, to the protection of the. common defense and security, and (2) whather the lack of access to a disposal si.te would result in a significant disruption in that activity that would seriously threaten the comon defense and security. The Comission will consider the views of the-Department of Defense (D0D) and or the Department of Energy (DOE) regarding..the importance of the activities responsible for generating the LLW to the comon defense and security, when evaluating requests based all, or in part, on a serious and imediate threat to the comon defense and security.
(e) In making the determination required by 5 62.21(a)(2) of this part, the Comission will consider whether the person submitting the request (1) has identified and evaluated any alte'rnative that could
- j. mitigate the need for emergency access; and (2) has considered all pertinent factors in its evaluation of alternatives including state-of-the-art technology and impacts on public health and safety. f 63 .
(f) In making'the determination required by~ $ 62.21(a)(2) of this part,.the Commission will consider implementation of an alternative to -
be unreasonable:if (1) it adversely affects' public health and safety, the' ,
,- environment, . or the comraon defense .and security;. or (2) it results in a
- 'significant curtailment or cessation of essential services, affecting.'
publ'ic health and safety or the common defense and security; or (3) it is
'beyond the technical and economic capabilities of the person requesting -
emergency access; or (4) implementation of the alternative would conflict with applicable State or local'or Federal laws and regulations; or.(5) it cannot be implemented it a timely manner.
(g) The Coraission shall make an affirmative determination under
- S 62.21(a) of this part only if all of the alternatives that were consid--
ered are found to be unreasonable.
(h) As part of its mandated evaluation of the alternatives that were considered by the generator; the Commission shall consider the char-
- acteristics of the wastes'(including: physical properties, chemical properties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity, and explosive potential);' condition of current container; potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste'(includ-ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, e:;aipment contamination, effluent releases, worker exposure, and equipment availability); and the administrative controls which could be 64
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- applied, in making a determination whether waste to be delivered for dis-posal under this part has been reduced in volume to the maximum extent e
practicable using availa,ble technology. '
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5 62.26 Criteria for de'signating a disposal' facility.
(a) The Commission shall designate an appropriate non-Federal or -
regional disposal facility if an affirmative determination is made '
pursuant to SS 62.21, 62.23, or 62.24 of this part.
(b) The Commission will exclude a disposal facility from considera-tion if:
(1) The low-level radioactive wastes of the generator do not meet the criteria established by the license agreement or the license agree-ment of the facility; or (2) The disposal facility is in excess of its approved capacity; or-
~
(3) Granting. emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request.for emergency access; or (4) The volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for l l
disposal at the facility during the previous calenda year. 1 (c) If, after applying the exclusionary criteria in paragraph (b) of this section, more than one disposal facility is identified as appro-priate for designation, the Commission will then consider additional factors in designating a facility or facilities including--
(1) Type of waste and its characteristics,
~
(2) Previous disposal practices, -
(3) Transportation, 65
(4)'. Radiological effects, o,
(5)- Site capability for' handling waste,. - $
-(6) The volume of. emergency access waste previously accepted by (
each site both.for the;particular year and overall, and (7) Any other considerations d'eemed appropriate by the Commission.
(d) The Commission, in making its designation, will also , consider-
-any,information submitted by the-operating non-Federal or regional LLW -
,. ' disposal sites,.or any information submitted by the public-in response l- to a Federal Register notice' requesting comment, as provided in para-graph (b) of S 62.11 of this part.
u l Subpart D--Termination of Emergency Access S 62.31 Termination of emergency access.
.(a) The Commission may terminate a grant of; emergency access. when eeergency access is no Ibnger necessary to eliminate an immediat'e th'reat to public health and safety or the common defense and security.
(b) The Commission may terminate a grant of emergency access if an appl.icant.has provided inaccurate information in its application for emergency access or if the applicant has failed to comply with this part or any conditions set by the Commission pursuant t this part.
Dated at Rockville, MD, this day of . . . 4A./7 , 1989.
Foh the Nuclear Regulatory Commission.
l
, - _ > - 0*t;. s Q, .
3bmuel J. Chi lk, Secretary of theCommission].
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