ML20246H021
| ML20246H021 | |
| Person / Time | |
|---|---|
| Issue date: | 03/23/1988 |
| From: | Lambert J NRC |
| To: | NRC |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-03, AC24-2-3, NUDOCS 8905150331 | |
| Download: ML20246H021 (494) | |
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NUCLEAR REGULATORY COMMI5SION
~10 CFR PART 62 Criteria and Procedures for'EmergencyfAcce'ss to Non-Federal and Regional Low-Level Waste Disposal. Facilities AGENCY: Nuclear-Regulatory Commission.
ACTION: Proposed Rule. ,
SUMMARY
The Nuclear Regulatory Commissions (NRC) is proposing a' rule'to establisn procedures and criteria for fulfilling its-responsibilities ,
associated with acting on requests by low-level-radioactive waste (LLW)-
generators, or State officials on behalf of those generators, for emergency acce,ss to operating, non-Federal or regional, low-leyel 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
, j denied access to operating low-level radioactive waste disposal facilities, and the lack of access results in a serious and immediate threat to tne public health and safety or the common defense and security.
DATES: ,
Comments should be submitted on or before Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received before this date.
1 Enclosure 8
- ;[7550-01)-
ADDRESS:
2 Submit written comments to the Secretaryfof the Commission U.5. Nuclear Regulatory Commission, Washington, DC 20555
, Attention:
Docketing and. Service Branch.
Copies'of comments received and the regulatory analysis may be examined.at the NRC Public Document' Ro ,.
1717 H Street NW., Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT:
Janet Lambert, Division of Low-Level Waste Management and. Decommissioning, U.S. Nuclear Regulato Washington, DC 20555, telephone (301) 427 07';.
(493-7783- e SUPPLEMENTARY- INFORMATION:
I. Background II.
Legislative Requirements III.
Legislative History IV. NRC Approach V. Assumptions ;
VI. The Proposed Action t
VII.
Rationale for Criteria VIII. Specific Request for Comments IX.
Requests For Emergency Access Made Prior to the Effective Date of the Rule X.
Finding of No Significant Environmental Impact:
XI.
Availability Paperwork Reduction Act Statement XII. Regulatory Analysis XIII. Regulatory Flexibility Certification XIV.
List of Subjects in 10 CFR Part 62 2
Enclosure B
[7590-01)
I. Background The Low-Level Radioactive Waste Policy Amendmencs Act (PL 99-240, January 15, 1986), "the Act" directs the States t o develop their own LLW disposal facilities or to form Compacts and coo perate in the development of regional LLW disposal facilities soe new that th facilities will be available by January 1,1993.
The Act establishes procedures and milestones for n the sele development of the LLW disposal facilities.
The Act also establishes a system of incentives for meeting the milestones, and penalties for failing to meet them, which is intended to assuregress steady tcward pro new facility development.
The major incentive offered by the Act is that the States and regional Compacts which meet the milestones willnbe nue allowed to to use the existing disposal facilities until their ownes faciliti are !
available, no later than January 1,1993.
If unsited States or Comcact regions fail to meet key milestones in the Act, thec States or C Commissions with operating non-Federal or regional LLW disp facilities are authorized to demand additional wastes accepted fees vor \
for disposal, and ultimately to deny the LLW generators in th !
e delincuent State or Compact region further access to their facilities
{
Section 6 of the Act provides that the Nuclearmmission Regulatory Co }
j (NRC) can grant a generator " emergency access" to non F d e eral or regional i j
low-level radioactive waste (LLW) disposal facilities if acc i ess to tnose j
facilities has been denied and access is necessary in orde r to eliminate !
an immediate and serious threat to the public health r the and safe common defense and security.
The Act also requires that a determination be made as to whether the threat can be mitigated y alternative by an 3
Enclosure B '
I I
[7590-01] l J. .
i ?
\
fconsistent with the public health and safety, including ceasing i activities that generate the waste.
NRC must be able, with the information provided by the' requestor, to make both. prior determina k
to granting emergency access.
The purpose of tnis proposed regulation is k to set forth the procedures and criteria that will be used by the C
- ^
sion to determine if emergency access.to a LLW disposal facilit be granted.
4 II.
Legislative Requirements 1 k
In addition to directing the NRC to grant emeroency accest as l' discussed in the Background section, the Act further directs NRC j
designate the operating LLW disposal facility or facilities where'the waste will be sent for disposal if NRC determines that the ces circumstan warrant a grant of emergency access.
NRC is required to notify the. ,
Governor (or chief executive officer) of thee State was in jw l generated that emergency access has been granted, and to notify and Compact which will be receiving the waste that emergency a their LLW disposal facility is required.
The Act limits NRC to 45 days from the time a request is received to determine ywhether access emerg will be granted and to designate the receiving facility.
The Act provides that NRC can grant emergency access for a not to exceed 180 days per request.
To ensure that emergency access is not abused, rnoi 4o.cedthedeActpus,allows that m only one ab E der extension of access [stobegrantedper~ request.
An extension can be approved only if
- the LLW generator who as originally granted emergency n he access a d State in which the LLW was canerated have diligentlyssfully though unsuc 4
Enclosure B
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acted during the period of the initial grant to eliminate the or need f 1 emergency access. I The Act also provides that requests for emergency access' snai I
contain all information and certifications that NRC requires to T determination.
(
" Temporary emergency access" to non-Federal or regional disposalLLW facilities may be granted at the' Commission's discretion " -
c 4 de d ~; :=ild k 9 tee 4"=e arroce 4e nara H '": "PC e t: " :: tM t ::r; = y j
because of a serious and immediate threat to the public health and safety or the common defense andThe security.
grant
-eefres of temporary emergency access S ;; ys omdays ctf4-u :: My :_ If u fo 44 0 ;
Although the Act does not. require NRC to develop a rule to c its Section 6 responsibilf+ics, NRC is proposing this rule s to estab the procedures and criteria that will be used in making the re quired emergency access determinations.
Since the requisite condition that :nust be met in order for a requestorrerwsh1,.
to be eligible for emergency has cess ac 0
considerationisthatthe/rhavealreadybeendeniedaccesstotheLLW (
disposal sites by the States or Compacts with operating sal dispo facilities, implicit in any decision to grant emergency acces s is the fact that such a decision will override the or sited States' Compacts' expressed desire not to accept waste from that particul ar State or generator.
Although Congress provided NRC the statutory respon-1 sibility for implementing Section 6 of the Act and gave n the Comm authority to decide whether or not access will be provided , emergency access decisions are likely to be controversial.
By setting out the procedures and criteria for making emergency access decisions rule in a which reflects public comment, NRC intends to provide a n opportunity I 5 Enclosure B
2
[759001](-
3 for input from potentially affected: individuals'and organizations , add predictability to the cecisionmaking process, and to help ensur e inat 'he t i
NRC will be able to make its decisions on emergency .recuests accessi within the' time. allowed by the Act. !
l III.
Legislative History The. legislative history 'of.the Act emphasizes the Congressional i intent that emergency access be used-only in very limited . rare and '
circumstances and'that it was'~not intended to be used to cir provisions of the Act.
Congress believed it was important for the
'k successful implementation of the Act that emergency access not'b by the unsited Statu as an alternative to the pursuit of the dev of r.cw LLW disposal capacity. (
The legislative history indicates that i j
Congress believed that with the various management options av] e_to i LLW generators, including, for example, storage .
or ceasing t erate the waste, the instances where there w'as no alternative . emergency-to access would be unlikely.
Congress expected-that. responsible action from the generators and the States / Compacts should resolve most a:: cess problems 9
thus precluding the necessity for involving the Federal sect or in grant-ing emergency access.
Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergancy access rule, NRC has tried to be l consistent both with the actual text of Section 6 of th .
the intent expressed by Congress regarding decisions ursuant to made p Section 6.
The proposed rule sets strict requirements for granting em -
gency access and serves to encourage potential requestors er to seek o 6
Enclosure B
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Section 6(g) of the Act requires the 11RC 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 its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the 11RC. The purpose of this provision is to--
ensure that the Compact Commission is aware of the f4RC's grant i of emergency access and the terms of the grant, l allow the Compact Commission to implement any administrative 6
procedures necessary to carry out the grant of access, and ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded.
l 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 f1RC's grant of emergency access. The basic purpose of the Section 6 emergency access provision is to ensure that sites that would normally be, closed under the Act will be available in emergency situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Ccmpact.should be conditioned on the Corepact'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 void. -
H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).
4
.. i Y
[7590-01]-
v means for resol' ing the ~ problems created by denial of access dis-tol posal facilities.
The proposed rule places the burden on the party requesting emergency access to demonstrate that the criteria'in rule th have been met and emergency access is needed.
Applicants for. emergency access will have' to provide clear and convincing evide'nce that th .
exhausted all other options for managing'their waste.
By establishing strict requirements for approving requests. for emergency access, NR intends to reinforce the idea that problems with LLW disposal a re to be worked out to the extent practical among'the States, and cy that em access to existing LLW facilities will not automatically be available a .
an alternative to developing that capacity.
NRC believes this interpreta-i tion is consistent with a plain reading of the Act and theg supportin legislative history.
. . Toud 1 -
y IV. NRC Approach In developing the proposed rule, the NRC's approach was to:
1.
assure 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 ha ve to be submitted with any request for emergency access oin order for i l
i make the necessary determinations.
- 3. 4 assure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within the 45-day period spe the Act.
4.
establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consi 7
Enclosure B
]
q
[7590-01]
with the other provisions of the Act, includ'ing the !imits on the-amount.
4 of waste that can be' disposed of at each op'erating facility.
- 5. !
establish requirements for granting emergency-access t.at'are stringent enough to discourage .the. unsited States and ' regions ? f ro
~
viewing emergency access as .an alternative to diligent pursuit of tn own disposal capability, 'and 'yet flexible enough to allow NRC to res appropriately in situations where' emergency access is. genuinely neede i
to protect the public health and safety or the common defense and .
security.
l V. Assumptions' In' developing the rule NRC made severalLassumptions. These assumptions are discussed below. 4 NRC staff : are assuming that the s wa'tes requiring disposal r the unde emergency access provision will be the result of unusval u circ ~mstance i The nature of routine LLW management is such that'it :on- is difficult to ceive of situations where denial of access to disposal would creat
' serious and immediate threat to the public health and safety or the national security.
In most cases generators should be able to safet y store routinely generated LLW or employ other options for manag waste without requiring emergency access.
Thus, if all the LLW genera-tors in a State were denied access to LLW disposal facilities , NRC staff would not expect to receive a blanket request for emergency s or acce s f all of the LLW generated in that State, or for all of the LLW gene .
by a particular kind of generator since the need forccess emergency a would be different in each case.
In preparing the rule, NRC has also assumed that requests for em gency access will not be made for wastes which would otherwise q 8
Enclosure B
__ _ _ ~
-m-
[7590-01) for disposal by the Department of Energy (00E) under the unus ual volum s provision of the Act [Section 5(c)(5)].
This means that NRC coes not intend to consider requests for emergency access for ewastes by gen commercial nuclear power stations as a result of unusual or unexoecte operating, maintenance, repair or safety activities.
Section 5(c)(5) of the Act specifically sets aside 800,000 cu.ft. of disposal capacity acove the regular reactor allr.ations through 1992 to be used for those waste With this space reserved for wastes qualifying for the " unusual volum allocation," NRC believes emergency access should be reserved for o!
LLW, until the 800,000 cu.ft. allocation is exceeded.
NRC considered basing its decisions for granting emergency acces solely on quantitative criteria, but decided against that approach. !
While NRC has identified some of the wastes and the create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated. j Largely because of the uncertainty i associated with identifying all of the circumstances under which !
1 emergency access may be required, NRC has avoided establishing crite with absolute thresholds.
Instead, the rule as proposed contains a combination of qualitative and quantitative criteria with generic applicability.
NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access yoncase a case b basis.
VI. The Proposed Action The proposed rule contains three Subparts, A, B, andThese C.
Subparts set out the requirements and procedures to be followed in requesting emergency access and in determining whether or not reques should be granted.
Each Subpart is summarized and discussed here.
9 Enclosure B Y__ _ _ _ _ _ _ _ _ _ _ _
[7590-01] q 4
Subpart-A - General Provisions Subpart A contains the purpose -and scope of- the rule,' definiti ,
instructions for communications with th'e Commission, and provision l relating to interpretations of the rule.
.Subpart A states that the' rule applies to all' persons as define'd by this regulation who have'been d
'l
-i access to existing commercial LLW disposal facilities and who submit a j j request to the. Commission ~ for an emergencyf access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendment's. Act o d 1985, 1
Subpart B'-
Request for a Commission Determination-Subpart B specifies the information that must be submitted and the -1 procedures that must be followed by a person seeking a Commission' deter -
mination on emergency access.
Specifically, Subpart B requires the submission of information l
on the need for access to LLW disposal. sites, the quantity and type o material requiring disposal, impacts on health and safety or common defense and security if emergency access were not granted
)
, and-consideration 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 safety or the common defense and security might exist, (b) whether alternatives exist that could mitigate the threat, and (c) which non-Federal disposal facility or facilities should provide the disposal required.
In addition to the above, Subpart B also sets forth procedures for the filing and distribution of a request for a Commission determination .
10 Enclosure B
[7590-01). ;
It provides for publication in the Federal Reaisterce ofof'a noti.m receipt o' f a request for emergency access to inform at'the public i Commission action on the request is pending. ,
.~
0;.Io chuf ^: ; :::: 2 5utpart 3 m paed.
M provide for publ1c comment mih on the request / 'nr
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In the event that the case for requesting emergency access' t
. e based totally or in part.cn the threat posed to the common ense and def security, Subpart B requires that a statement of support from the-Department of Energy.(00E) or the Departmentas-of Defense (0 appropriate) be submitted as part of the initial request for eme access. ncy If the rtquest is based entirely on common defense y and se concerns, NRC will not proceed with the emergency access n until evaluati the statement of support is submitted.
Subpart C - Issuance of a Commission Determination 4
For the NRC to grant emergency access,' the Commission rst mus conclude that there is a serious and immediate threat to the publi health and safety or the common defense and , and security second that there are no available mitigating alternatives .
Subpart C sets out the procedures to be followed by the Commission in consid ering requests \
i 11 !
Enclosure B !
< i
[7590-01) for emergency access', for granting extensions of emergency acce ,
for granting temporary emergency access'; establishes the'and criteria standards to be used by the Commission in making.those determ ..
and specifies the procedures ito be followed in issuing them.
Subpart C provides that NRC, in makingLthe determination that ther is a serious and immediate threat to.the public health and, safety will consider:
(1) the' nature and extent of the radiation hazard that would result from the denial of access including ennsideration 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 emergencyaccessrequestand,(2)theextenttowhichessentiall service such as medica'), therapeutic, diagnostic, or research activities will be disrupted by the denial of emergency access.
1 In making the determination that there is a serious and immediate l
threat to the common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW is necessary to the protection of 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 consider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider 12 Enclosu e B l
o
[7590-01) .;
n whether alternatives.to emergency access are avai.lable to the requ . ;
The Commission will consider whether the person submitting the . !
has identified and evaluated _the alternatives available w '
3 potentially mitigate the need for emergency access. i The Commission -ill consider whether the person requesting emergency access'has consice all factors in the evaluation of alternatives including state of-tne art' technology and the impacts of the alternatives on the public health and safety.
For each' alternative, the Commission will also consider -hetner the requestor has demonstrated that the implementation of the altern is unreasonable because of adverse effects on the public h ealth and safety or the common defense and security, because it is technically j
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 ceas d i
the activity responsible for generating the waste could lead to tne cessation or curtailment of essential medical services. In the proposed rule, the Commission censiders the impact on medical service ,
the activity in making its determination that there is a serious ard .
-)
immediate threat to the public health and safety under Section 62 25 .
However, the Commission is also concerned as to whether the imple -
tion of other alternatives rcay have a disruptive effect onalessenti medical services.
The Commission specifically requests information on these impacts in S 62.12 so they can be considered in its overall determination about reasonable alternatives.
According to tre procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency if the available alternatives are found to be unreasonable .
If an ;
4 1
13 \
Enclosure B ,
1
-[7590-01) !
alternative is determined by NRC t'o be reason'able, then r the emergency access.will be' denied.-
If the Commission determines that.there is!a se .
threat to the public health and safety or the common defense urity and which cannot be mitigated by any alternative, then the Commission
-ill k
decide which operating non-Federal LLW disposal facility sho'uld re the LLW approved for emergency access disposal. ,
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 considera 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 .
l planned closing of the facility; or. (4) the volume of the waste disposal exceeds 20 percent'of the total volume of the LLW ar accep i
disposal at the site in the previous calendar year.If the designation cannot be made on these factors alone, then the Commission will cons the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, and any other information the Commission deems necessary .
In making a determination regarding a request for an extension of 1 1
emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whethe the person making ne request has diligently acted during ofthe period the initial grant to eliminate the need -for emergency access .
In making a determination that temporary emergency access is ne sary, the Commission will have to consider whether the emergency acce 14 Enclosure B l
- m. [7590-01]
situation falls within the criteria and examples in theon's Commissi policy statement on abnormal occurrences, but will not have to reach'a determination regarding mitigating alternatives.
1 VII.
Rationale .for Criteria i
The proposed rule establishes the criteria for makingythe eme l access determinations required by the Act.
The rationale for these 1 decisions is discussed below:
(a)
Determination that a Serious and Immediate Threat ;
Establishing the criteria to~be used in. determining that a seriou and immediate threat exist to the public health and safety or the cc defense and security is key to NRC's decisions to grant emergen
- access.
Neither the Act nor its legislative history provide elaboratio n regarding Congressional intent for what would constitute."a serious ate and imm threat." ,
(1)
To the Public health and safety--
The criteria in the proposed rule for determining whether u a se and immediate threat to the public health and safety, exists address three situations.
Section 62.25(b)(i) addresses the situation whe!
lack of access would result in a radiationy hazard generating the LLW.
that is at th Section 62.25(b)(ii) addresses the situation whe the threat to public health and safety would result from on of disrupti i the activity that generates the waste, for example
, an essential medical service.
emergency access.
Section 62.25(c) addresses the criteria for granting tempo 15 Enclosure B i
. ]
[7590-01]' !
'I The criteria.in the proposed rule for determining hether as erious, and immediate threat to the public health and safety exists is f
' qualitative in nature in order to provide the Commission gith tre- si flexibility necessary to consider a wide range.of potential . factual -
i situations. {
However, in making this qualitative determination. 1e' criteria require the Commission to consider several existing q standards.
These consist of the Commission's standards for r
' protection in 10 CFR Part.20, any standards on the release oactive of radi materials to the general environment that are applicable yto the fa i that generated the low level waste, and any other Commission ements re specifically applicable to the facility or activity which is the sub of the emergency access request.
This latter category would include. t license provisions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act w ensure that a serious and immediate threst to the public health and safety did not result from a denial of access.
In addressing this concern, the Commission will evaluate the request for' emergency n !
its entirety, i.e. the threat to public health and safety n he adt alternatives to emergency access that may be available to m i threat. In other words, in determining what constitutes a serious and immediate threat to public health and safety, the Commission must consider what threat would be unacceptable assumings that no a are available.
In the Commission's judgment, any situation that would result in exceeding the occupational dose limits or basic li i m ts of !
public exposure upon which certain requirements in 10 re CFR Part 20 founded would be an unacceptable threat to the public safety, health and and should be considered for emergency access.
16 Enclosure B 1
f.
- [7590-01)- j The legislative history of Section 6 of the Act doesv not pro ic e any i
illustrations of a situation where a seriousreat and inmediat to tne public health and safety would be created at the. facility at -nicn .
waste is stored, although it is. clear that Congress was concerned her i
,the potential radiation hazard that might result at a particular f that was denied access'to LLW disposal.
The Commission does not 1 anticipate any situation where the lack of- access woulc create .a {s and immediate threat to the public health.and safety.However, in order i
to be able to respond to the unlikely, but still possible , situation where a serious threat to the public health and safety mightthe ,
result '
proposed rule establishes criteria to address this possibility. Oncer its normal regulatory responsibilities and authority, the Commission would act immediately to prevent or mitigate any threat to the public I 4 health and safety, including shutting down the facility. However , there may be circumstances where a potential safety problem would still e ,
after the facility was shut down or e th' activity stopped, if the
~
low level waste could not be disposed of because of denial of acci .
In this situation, emergency access may be needed. ,
The Commission would emphasize first, that it is extremely unlikely that a serious and immediate threat to the public health and safety will ever r esult at the generator's facility from the lack of access to a disposal, facility and second, if such a situation does exist, the Commission will move immediately to eliminate the threat. .
If the Commission does receive a request for emergency accessI i on the above circumstances, the Commission will evaluate the nature i
extent of the radiation hazard.
If there is no violation of the Commission's generic or facility-specific radiation protection arcs.
stanc 1 17 ,
Enclosure B ,
j l
1
, .m p (7590-01] j i
no serious and immediate threat would exist fromThis- the wast is separate from a finding that a serious end immediate th reat to the 3 public health and safety would exist if the activity were~ u forced'i down.
Section 6(d) of'the Act allows the Commission to. grant tem for ct peu.cd. m<>t % mued 4SySs emergency accessg solely upon.a finding of a serious and immediate t Q thre 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 temporary emergency access s reserved for the most serious threat to public health and, safety and has accordingly established criteria for granting temporary emergency ac that require the consideration of more serious events . For purposes of granting temporary emergency access under Section 62.23, the Comm will consider: the criteria and examples contained in the Commissiol{
)
Policy Statement for determining whether an event 'at a facility o activity licensed or otherwise regulated by the Commission is an j
occurrence within the purview of Section 208 of the Energy Reorgani.
i Act of 1974 ,
(45 FR 10950, February 24,1977.) .This provision requires the Commission to keep Congress and the public informed u ea of unsche incidents or events which the Commission considers rom significant the' f
standpoint of public health and safety.
Under the criteria established in the Commission's policy statement, an event will be con id s ered an abnormal occurrence if it involves a major reduction in the degree o protection provided to public health and safety.
Such an event could include--
1.
Moderate exposure to, or release of, radioactive material; 18 Enclosure B
l
)
[7590-01]
2.
Major degradation of safety related equipment; Lor-
- 3. ;
Major deficiencies in design, construction, use of, or management controls for licensed facilities oractivit es . j In deciding whether to grant' temporary emergency access, the "
i Commission will evaluate whether the emergency access situation within the criteria r :
_ A ., in the Commission's poli.cy statement on 9 abnormal occurrences.
\
i (2) Tothekmmondefenseandsecurity--
g Although NRC is required by the Act'to determine that there is either a serious and immediate threat "to the public n health a d i j
safety," or to "the common defense and security," realistically NRC i cannot make the latter judgement without some information from 000 I
DOE which will assist NRC in identifying those situations invo i denial of access to LLW disposal which constitute a serious mediate and im threat to the national defense and security, or the importance .a of ;
{
particular LLW generator's activities in maintaining those objective 4 While NRC has the Congressional mandate for this ,determination NRC staff j
believe it necessary to consider 000 and 00E information of the as part decision making process.
NRC considered several approaches for involving 000e and 00E i process of determining whether requests for emergency access sho granted on the basis of a serious and immediate threat to the common defense and security. ;
It appears that the best way to provide such interaction would me to require that requests filed with NRC f or emer-gency access which are made entirely, or in significant, on part the basis of a serious and immediate threat to the common n security, should include appropriate certification from DOE or 100 19 Enclosure B
^
[7590-01) substantiating the requestor's claim that'such a threat will result if emergency access-is not granted.
The necessary certification in the: form of a statement of support should be acquired'by'the requestor prio applying to NRC for emergency access so the certification can b of the actual petition.
Congress deliberately gave the'NRC the responsibility:for makin
)
the common defense.and security determination rather than leaving -
determination with'000 or DOE.
So'while the Commission intends to give j the D00 and DOE certifications and recomundations full c i in evaluating requests for emergency access, the Commission will not l treat them as conclusive.
1 (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 no granted if alternatives are available to mitigate the threat in a manner i consistent with the public health and safety.
As proposed in the rule, requestors for emergency access will have to demonstrate that they ha explored the alternatives available and that the only course of action remaining is emergency access.
Only after this has been demonstrated to I NRC will the Agency proceed with a grant of emergency access .
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 storage facility, (2) obtaining access to a disposal f acility by voluntary agreement, (3) purchasing disposal capacity available for assignment pursuant to Section 5(c) o the Act, and (4) ceasing the activities that generate the LLW .
20 Enclosure B
\' _ ___ - - ~
-[7590-01]
While 6(c)(1)(B) of the Act sets these-out as possible alterna-tives which a generator must consider befoic requesting em ergency access, NRC has identified other possible alternatives to emergenc9 ess -nicn acc should be considered, as appropriate, in any requests for emer access.
These additional alternatives are discussed below.
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners a operators of commercial nuclear. reactors with'special access to dispo l
in the event that unusual or unexpected operating, maintenance , repair or safety activities produce quantities of waste which cannot be othe 4
managed or disposed of under the Act.
NRC does not consider that Congress intended that disposal under the emergency access was provis l
to apply to the Section 5(c)(5) wastes unless the capacityorrequired f disposals under the unusual volume provision would800 exceed
, 000 the cubic feet allqcated for those purposes.
Thus, NRC has taken the position in the proposed rule chat as long as unusual volumes d capacity is available for LLW which qualifies for such disposal ,
emergency access should not be requested.
Applications for emergency '
access for wastes which NRC determines would otherwise be eligib i disposal under the unusual volumes provision, will be denied .
Another alternative applies only to Federal or defense related !
generators of LLW.
NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access e eral to non F facilities under the emergency access provision.
For all the alternatives that are considered, NRC gis requirin detailed information from the generator regarding theprocess decision leading to a request for emergency access.
The requestor will be 1
21 Enclosure B
]
[7590-01) expected to demonstrate that.he has considered all pertinent alter-natives and to provide a detailed analysis compari'ng all of the alternatives considered.
j The requestor will be expected to demonstrate i j
that he.has considered combining alternatives in some way or in so sequence either to avoid the'need 'for. emergency access, or to resol .
I threat, even on a temporary basis,-until other arrangements can be .
A Therequestorwillbeexpectedtoevaluatethec j
+othe-p A potential alternatives)and (c) Designation of Site to incorporate theAdresu J\
In deciding.which of the operating, non-Federal or regional LLW u disposal facilities will receive the LLW requiring emergency .
, NRCaccess
\
i Will ' determine which of the disposal facilities would qualify under th l limitations set out in Section 6(h) of the AccordingAct. to those limitations, a site would be excluded from receiving access waste if-(1) the LLW do4s not meet the license criteria for thee site; (2) th disposal facility meets or exceeds its capacity limitations as set out it, the Act; (3) granting emergency access would delay the plan
)
closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the total volume of theorLLW accep 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 t waste, previous disposal practices, transportation requirements , radio-logical effects of the waste, the capability for handling the waste !
i at each site, and any other information that would be necessary in o to come to a site designation decision.
22 Enclosure B
_ _ _ _ _ _ _ _ _ _ - - - - - " " - ^ - - - - '
.l
\
[7590-01]. t
}
-j Within.the requirements of the above crite'ria, the'NRC ,will to the 3
extent practical, attempt to distribute the waste as equitably as j
\
possibleQ.ht:to g o..
the available operating, non-Federal or regional LLW '!
disposal facilities. $ .}
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 propor to the volume limitations established in the Act. In most cases, NRC d
i i
would~ expect that the designation of a single site will minimiz k of and exposure to the waste and best serve the interest of proti the public health and safety. l However, if the volume of waste requiring emergency access disposal is large, or if there are other unusual or extenuating circumstances, NRC will evaluate the advantages and disadvantages of designating more than one site to receive waste fro the same requestor. ' !
In addition to the above, NRC will also consider how much wast i
(
been designated for emergency access disposal to each site to d ?
for the year and overall), and whether the serious and immediate reat th I
1 posed could best be mitigated by designating one site or more to recl the waste.
In order for NRC to make the most equitable site designation decisions, the Agency will have to be well informed regarding a us the st i
of disposal capacity for each of the commercially operating waste ;
facilities. d 1 NRC intends to arrange to obtain thy information M ere e ~ ecei pt f ; *>ry M {
m ::t fc : : 7 7cy sccer: +: facil da a tne site 2 decip ; tion p s m v. M CL Co W '# C i
M 23 Enclosure B
[7590-01)
It should be noted that in setting out the site designation provision for Section 6, Congress. assumed there would always'be a site deemed appro-priate to receive the emergency. access waste.
However, this *tay cot.be the case if all sites are eliminated by application of the li i m tations provision set forth in the Act.
It is not clear what. options.are available to NRC if all sites are deemed inappropriate'to receiv ,
This may have to be addressed by Congress at some time in the (d) Volume Reduction Determination Section 6(i) of the'Act requires that any LLW delivered for dis as a result of NRC's decision to grant emergency access "should be 1
reduced in volume to the maximum extent practicable."
NRC will evaluate the extent to which volume reduction methods or techniques will-be or have been applied to the wastes granted emergency order access to arrive at a finding in regards to' this provision NRC may receive a request for emergency access where th -
tion of volume reduction techniques may be sufficient gate the to miti threat posed to the public health and safety.
As a result, NRC plans.to evaluate the extent to which waste has been reduced in volum r of its mandated evaluation of the alternatives considered or by From that evaluation, the NRC could reach a finding e waste on whethe has been reduced in a manner consistent with Section .
As is so for the other determinations NRC will have ursuant to make p to Section 6, volume reduction determinations will be made case basis. on a case-cy-The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or st ored, the 24 Enclosure B
[7590-01]
administrative options available,land.whether volume'reducti on proces-sing creates new wastes requiring treatment'or disposal ~ .
In' evaluating whether the wastes proposed for~ emergency access have been reduced in volume to the maximum extent practicable, NRC will; charac =
consider teristics of the wastes (including:
physical properties," chemical' properties', radioactivity, pathogenicity, infectiousness,y, and'texi pyrophoricity, and explosive potential); condition of current ner; contai potential for contaminating the disposal site; the. technologies r.
c combination of technologies available for tre.atment of the wast (including ~ incinerators; evaporators crystallizes; fluidized b cd dry gs; thin-film evaporators; extruders evaporators; and rs);Compacto the suitability of volume reduction equipment to the circumstanc c activity considerations, actual volume reduction,factors generation'of secondary wastes, equipment contamination, effluent , er releases ~ w exposure, and equipment availability); and the administrative rols con which could be applied.
VIII. Specific Request for Comments NRC is interested in receiving comments on of those the parts proposed rule where NRC applied its discretion in mplement order to i the Section 6 provisions.
NRC specifically requests comments on the following: .
1 (1) What scenarios are envisioned where emergency acce i I
would be required? (2) What are the potential problems s with NRC approach to determining an immediate and serious threat to the j public health and safety? (3) What are the potential problems with the t arrangement proposed for making the determination n of serious a d '
immediate threat to the common y defense What are the and secu 25 Enclosure B
~
[7590-01]_
potential difficulties with the proposed' approach for'designati ng the receiving site? and (5) What should NRC do if no site o be is found t suitable for waste' requiring emergency access?
.NRC is interested in facts and recommendations on spe responsive to these issues.
While NRC will consider.all comments on'th proposed rule, it will be better able~to. respond to those comments t recommend specific solutions to any problem raised by-the'commenters .
IX.
Requests for Emergency Access Made Prior to the Effective Date of the Rule In setting the schedule for this rule, the Commission has tried t anticipate when the first request might be made so the final' rule w be in place before that time.
However, it may be necessary for a generator or State to submit a request for a Commission emergenc determination prior to the effective date of this rule .
Commission determinations made on requests receiv'ed before the s in final rule i place will be guided by the criteria and procedures provided in t '
proposed rule. ,
X.
Finding of No Significant Environmental Impact: Availability If adopted, the proposed rule would establish criteria ures and proc for a Commission determination under Section emergency 6 of the A access to an operating non-Federal LLW disposal facility o is neces avert a serious and immediate threat to the public health and safe the ccmmon defense and security.
For the most part, the proposed rule is '
26 Enclosure B
J
[7590 01]-7 !
s an admini'trative action which serves to cooify the criteria ce-and pro dures in the Act.
The adoption.of.such implementing procedures and by. promulgation of a final rule;does 'not have an environmen'tal' ec t .
e Therefore, .the Commission has determined under the Nati i 11 Environ-mental Policy Act of 1969, as amended,'and the' Commission's.re n Subpart A of 10 CFR Part.51, that t'his proposed rule, if. =ould ' adopted not be a majo'r Federal action significantly affecting the quality of t 4 human environment and,'therefore, an environmental impact stat ,
not required. j The environmental assessment forming the basis for this dete is contained in the draft regulatory analysis prepared roposedfor this p regulation. -)
The availability off the draft regulatory analysis is noted i below. -i 1
'XI.
Paperwork Reduction Act Statement-i This proposed rule adds information collection requirements re.
th subject to the Paporwork Reduction Act of 1980 (44 U.S.C. 3501 et seq ) ..
This rule has been submitted for review and approval .
r of the pa 1 requirements. i XII. Regulatory Analysis The Commission has prepared a draft regulatory analysis of the proposed regulations.
The analysis examines the costs and benefits of the alternatives considered by the Commission.
The draft analysis is available for inspection, copying for a fee, at the NRC Public Doc Room, 1717 H Street NV., Washington, DC 20555, 27 Enclosure B
- . _ , . . . . . < ,m ; - .
[7590-01]i XIII. '
. Regulatory Flexibility! Certification-NRC-is using..this proposed rule to implement the statutory.
requirements.for granting emergency access to non-Federal o LLW disposal facilities under Section 6:of. the Act.
Based upon,the~
.information available and'in'accordance.with the Regulatory L
Act, 5 U.S.C. 605(b), the' Commission certifies-that 1fL promulgated, this rule will not have a significant economic impact upon'a a l-substa number of small entities.
The. proposed rule has the potential to affect any generator 'of as well as any~ existing LLW disposal facility.
None of the LLW disposal' facilities would be considered to be a sma11' entity. The' generators of LLW are nuclear power plants, medical and academicindustri facilities
. al licensees, research and development facilities, radiopharmaceutic manufacturers, fuel fabrication facilities and government licensees
. Of these categories, all but the power plants, fuel fabrication c t es, fa ili i 1 j
- and government licensees could potentially include small entities .
Although these categories may contain a " substantial numbe '
entities," the Commission does not believe there will be a signi .
economic impact to these generators because the Commission doe anticipate that many. generators will be affected by the proposed .
In order for the requirements of the rule to be imposed or, on a ge the generator himself must initiate the action bya requesting grant of emergency access from NRC.
This would occur only because the generator has been denied access to LLW disposal.
The Commission is required to make emergency access determ by statute. s Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to I
28 Enclosure B
[7590-Of]. l LLW disposal, the ' provision of emergency access will be!
enerator of LLW including small entities.
Establishing criteria and procedures for requesting add i emergency access through a rule will also benefit small and large' generators. {
The proposed rule provides guidance to the generator.on L
information will be required for making' requests for emergency ac 3
and provides an orderly framework for making those requests.
Also, the -}
proposed rule will enable generators to better plan. to avoid LLW d!
access problems, thus providing the certainty requireo for econo and development.
The impact of the recordkeeping requirements on any affectl!
j should be minimal since the information.that must be provide requests emergency access would most likely be collected and ass part of any process to decide a course of action if necessary o-acces I
LLW disposal was not going to be available.
i The NRC is seeking public comment on the-initial' regulato analysis. y The NRC is particularly seeking comment from small entities (i.e., small businesses, small organizations, and small c ons, jurisdi ti ,
under the Regulatory Flexibility Act) as.to how the regulations will affect them and how the regulations may be tiered or otherwise to impose less stringent requirements on small entities while still !
adequately protecting the public health and safety.
Those.small entities wh'ich offer comments on how the regulation could e be modifi into account the differing needs of small entities'sh i ould specifically '
discuss the following items:
(a)
The size of their business and how the proposea regulations would result in a significant economic burden upon them as compa larger organizations in the sar..e business community.
29 Enclosure B' L
[7590-01)
(b)
How the proposed regulations.could'be modified to tak'e into account their differing needs or capabilities.
(c)
The benefits that would accrue, or the detriments that would be avoided, if the proposed regulations were modif.ied as sugg commenter.
(d)
How the proposed regulations, as modified, would more clos equalize the impact.of NRC regulations or create more equal access to the benefits of Federal programs as opposed to providing special adva tages to any individuals or groups.
(e)
How the proposed regul?tions, as modified, would still adequately protect the public health and safety.
The comments should be sent to the Secretary of the Commission . U. S .
Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Occketing !
and Service Branch.
XIV.
List of Subjects in 10 CFR Part 62 e i Administrative Practice and Procedure y Level Radioactive Wast
<Nuclearkate$l
% tment and Disposal) j !
6ergencyAccesstoLow-levelWaste
( Ew-Level Radioactive Waste Policy
~
) Amendments A (Denial of Access.
For the reasons set out in the preamble and under the authority the Atomic Energy Act of 1954, as amended, the Energyc Reorganiza of 1974, as amended, and the Low-Level Radioactive Waste Policy A ments Act of 1985, notice is hereby given that adoption of a new 10 CFR Part 62 is contemplated.
30 Enclosure B
-[7590-01] -
.i 1
1.
A'new Part 62 is'added to 10 CFR'to read as follows:
Subpart A - General Provisions-Section: )
6
2.1 Purpose and Scope
62.2 Definitions 62.3 Communications' l' 62.4 Interpretations 62.5 Information Collection Requirements 62.6 Specific Exemptions 1 Subpart B - Request for a Commission Determination .f 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 62.15 Additional information ,
62.16 Withdrawal of a determination request 62.17 Elimination of repetition (oQ.Ig '
be:nio). f WS ' ~
O Subpart C - Issuance of a Commission Determination 62.21 Determination for granting emergency access 62.22 Notice of issuance of a determination 62.23 Determination for granting temporary emergency access 62.24 Extension of emergency access 62.25 Criteria for a Commission determination 62.26 Criteria for designating a disposal facility 31 Enclosure B
a
[7590-01).
Au?.hority:
' Secs. 81, 161,.as' amended, 68 Stat 951, as amended. 935, 948, 949,.950, (42-U.S.C. 2111,'2201);. secs. 201, 209 Stat. 1242, 1248, , as amended, 28 as' amended (42 U.S.C. 5841
,.5849); secs. 3, 4, 5, 6, 99 Stat.1843,1844, -1845,1846,1847,1848 1849l 1850 ,
1853, 1854, 1855, 1856, 1857. , 1851, 1852.,
(42 U.S.C. 2021c, 2021d, 2021e, 2021f) .
Subpart A--General Provisions
. $ 62.1 Purpose and scope.
(a)
The regulations in this part establish for specific l ow-level radioactive waste.(1) procedures and criteria for granti ng emergency access under Section 6 of the Lo'w-Level' ments Act of Radioactive e Policy Amend-1985 (42 U.S.C, 2021) to any non-Federal or regional-low-level radioactive waste (LLW) disposa1' facility or to any non4 Federal-disposal facility.within a State that is not a (2) the terms and conditions upon which the Co member of a Com emergency access. mmission will grant this (b) 4 The regulations in this part apply to all persons as defined by this regulation, who have been denied access t o existing regional or non-Federal low-level radioactive waste disposal faciliti es and who submit a request to the Commission for a determination part. n pursuant to this <
S 62.2 Definitions.
As used this' part:
Act" means the Low-Level Radioactive 1985 (P.L.99-240). y Amendments Act Waste of Polic 32 Enclosure 8 ws-" - - _ _ - - _ - - - - - - -
(7590-01) 1 1
" Agreement State" means a State that - (A) has entered into a agreement with the Nuclear Regulatory Commission undere section :
Atomic Energy Act of ..
1954 (42 U.S.C. 2021); and (8) has authority to 4 i
regulate the disposal of low-level radioactive waste under such agreement. q
" Commission" means the Nuclear Regulatory Commission oi authorized representatives. l 1
" 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 .
" Emergency Access" means access to an operating non-Federal o regionala low-level % a c.uot radioactive waste disposal facility or facilities for a period M 180 days, which is granted by NRC to a generator of p
low-level radioactive waste who has been denied the us facilities.
1
" Extension of Emergency Access" means an extension of the a that had been previously granted by NRC to an operating or non-Federa regional rra low-level
% u & radioactive waste disposal facility or facilities for !
a period ^' "; M 180 days, g {
j
" Low-Level Radioactive Waste" (LLW) material meansthat radioactive (a) is not high-level radioactive waste, spent nuclear fuel
, or byproduct material (as defined in Section 11e(2) of the Atomic Energy Act of 19I 1
l [U.S.C. 2014(e)(2)); and (b) the NRC, consistent with w and existing in la accordance with paragraph (a), classifies as low-level radioactive was l
J 33 Enclosure 8
(7590-01)
"Non-Federal Disposal Facility" means a low-levele radioa disposal facility which is commercially operated or is operat d e by a State.
" Regional Disposal Facility" means a non-Federal o-low-level r active waste disposal facility 'in operation on January 1,1985, or subsequently established and operated under a Compact.
" 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 l low-level radioactive waste; any Governor (or for any "a State" wi Governor, the chief executive officer of the " State") ony behalf of a generatcr or generators of low-level radioactive waste located in his her " State"; or their duly authorized representative, legal or or success agent.
1
" 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 g 7 MHeys at NRC's discretion wt y that cl.ccecranted ismczn W determining / +" d^~"'
-' ---- - *l h.tecusa ge e-a.
%1an %e<ne.1 ens 1Q~.1.u &1 . q = *j 3 ; ;.- g ee,,1 us,
.,, - - . , 3 9 3 < -
<g : :q r - - 4 ,. ,
.-s 4,
-a4'+c threat to the public health and safety or the common defense and security. M EW *
& % V""*g ' ,
S 62.3 Communications.
Except where otherwise specified, each communication and rep I l
concerning the regulations in this part should be addressed to the D tor, Office of Nuclear Materials Safety and Safeguards ,
U.S. Nuclear 1 Regulatory Commission, Washington, DC 20555, red or may in be delive i I
\
34 Enclosure B
{
[7590-01]
person to the Commission's offices at 1717 H Street NW
., Washington, DC, or 7915 Eastern Avenue, Silver Spring, Maryland.
S 62.4 Interpretations.
Except as specifically authorized by the Commission , no in writi interpretation of the meaning of the regulations in rthisy any pa t b officer or employee of the Commission other than written interpretat 4 by the General Counsel will be considered binding on the Commissi .
S 62.5 Information collection requirements.
This proposed rule contains information collection requirements that are subject to the Paperwork Reduction Act of etseq.) 1980 (44 U. S. C. 3501 The Nuclear Regulatory Commission has submitted the informatio collection requirements contained in this part to the Office of ment and Budget (GMB) for review and approval of the paperwork requirements.
S 62.6 Specific exemptions.
The Commission may, upon application of any interested person o mv upon its own initiative, grant exemption from the requirements of the p
regulations in this part that it determines is authorized by will law and not endanger life or property or the common defense and security a otherwise in the puolic interest.
35 Enclosure B
{
_ _ - - - - - - - - - - - - - - - - - - - - - - f
'(7590-01) ;
Subpart B--Request for' a Comission Determination S 62.11 Filing and distribution _of a determination request.
(a) l The person submitting a request for a' Commission determina }
tion must file a signed original and n_ine copies of the request e wi
{
Comission at the address specified in S 62.3, .with a copy also p l 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- I person requesting the determination or the person's authorized representative under oath or affirmation.
(b)
Upon receipt of a request for a determination, the Secretary /
1 the Commission aden will cause to be published in the Federal Register a notice W receipt End as n N f the requesf A copy % tw fm of the request hemade will be a j available for inspection in the Comission's Public Documentcan
. Room d44. '
_gggL 1717 H Street NW., Washington, DC, and in the Localcom Public Doc a
l of the facility submitting the request. A The Secretary of the Commission will also transmit a copy of the request to the U.S. Department of j
Energy, to the Governoe of_the State where the waste is generated
, to tne States with operating non-Federal low-level radioactive waste dis facilities, and to the Compact Comissions with operating onal regi low-level radioactive waste disposal facilities.
(c)
Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedur l
forth for special projects under category 12 of $170.31er.of this chap (d) 'In the event that the allocations or limitations in esta 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 36 Enclosure B l
[7590-01]
processing or acceptance of requ,ests' for emergency access ons-determ until additional LLW disposal' capacity is authorized by Congress .
S 62.12 Contents of a request for emergency access: .
General Information.
A request for a Commission determination under this part mus the following information for each generator'.to which the request es:
ap (a)
Name and' address of the person making the request; (b) ~Name and address of the person (s) or company (ies) the low-level radioactive waste for which the determination ;
is s (c)
The low-level waste generation facility (fes) producing the waste for which the request is being made; (d)
A description, of the activity that generated the waste; (e)
Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was de access; (f)
A description of the low-level radioactive waste for which emergency access is requested, including:
(1)
The characteristics and composition of t*Je waste, includ but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid ,
failed equipment);
(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, infectious or biological agents associ with the waste; 37 Enclosure B
i i
(7590-01]
(2)
The radiological characteristics of the waste such as--
(i) the classification of the waste in accordance with S'61 55; .
(ii) a list of the~ radionuclides present'or potentially present in the waste, their concentration or contamination levels, and total quantity; (iii) distribution of the radionuclides within the waste (su volume distribution);
(iv) amount of transuranic i (nanocuries/ gram);
(3)
The minimum volume of the waste requiring emergency access to alleviate the threat to the public health and safety or the common !
j defense and-security; i (4)
The time duration for which emergency access is requested (not to exceed 180 days);
(5) i Type of disposal container or packaging (55 gallon drum , box, liner, etc.); and (6) '
Description of the volume reduction and waste minimization techniques applied to the waste which assure that it is reduced to the i maximum extent practicable, and the actual reduction in volume that.
occurred; (g)
Basis for requesting the determination set out in this part including: ,
(1)
The circumstances which led to the denial of access to
- exist low-level radioactive waste disposal facilities, %uing aow=in . wo ac Nt =co nas oeen cenieo Tor T.ne waste t.nat 15 tne suo;eu vi se r n.; m ,
(2)
A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health e y or and saf t 38 Enclosure B
[7590-01];
the common defense and security, including the date when th e need for emergency access was identified; (3)
A chronology and description of the actions taken by the pe requesting emergency access to prevent the need for making such a request, including consideration of all alternatives set forth in 6 62;1 and any supporting documentation as appropriate; (4)
An explanation of the impacts of tne waste on the public health and safety or the common defense and security if emergency acce 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 if the generator's service ..
research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5)
Other consequences if emergency access is not granted; (h)
Steps taken by the person requesting emergency access to correct the situation requiring emergency access arid the person's p to eliminate the need for additional or future emergency access re uests; (i)
Documentation certifying that access has been denied; (j)
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 simultaneously under consideration by the Department of Energ access through the unusual volumes allocation; (k)
Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common 39 Enclosure B
[7590-01):
security, a Statement of support from 00E.or 000 certifying s that to disposal is necessary to mitigate the threat to the common d f security; e ense and
~(1)
Date by whichl access.is required'.and, (m)
Any other information which the Commission should conside making its determination.
S 62.13 Contents of a request for' emergency. access:
altr e.stives.
(a)
A request for emergency access ~under this part must include information on alternatives to emergency access.
_The request should include a discussion of the consideration given to'all alternatives' ,
including, but not limited to, the following: (1) storage of. low-level' radioactive waste at the site of generation; (2) storage of low-leve .
radioactive waste in a licensed storage facility; (3) obtaining acce l to.a disposal facility by voluntary agreement; (4) purchasing sposal di capacity available for assignment pursuant to the Act; (5) requ disposal at a Federal low-level radioactive waste disposal facilit I
y in the case of a Federal or defense related generator of LLW; (6) reducing the volume of the waste; (7) ceasing activities that-generate w-level lo l radioactive waste; and (8) other alternatives identified under .
Subpart (b) of this Section.
(b)
The request must identify all of the alternatives to emerge access considered and include a description of the process used to identify them, including any not specified in paragraph s (a) of thi section.
The request should also include a description of the factors that were considered in identifying and evaluating alternatives ,a 40 Enclosure B
[7590-01)~
chronology of ac9. ions _taken to identify and implement g alte the process, and a discussion of any actions that were conside red, but not implemented. .
(c)
The evaluation of each alternative must (1)consider:
its potential for mitigating the. serious and immediate threat to public ;
health and safety or the common defense and security posed by lac access to disposal;-(2) the adverse effects on public health and sa and the common defense and security, if any, of implementing eacn l
alternative, including the curtailment or cessation of any.' essential i l
' services affecting the public health and safety or thra common se def and security; (3) the technical and economic feasibility of each alternative-including the person's rinancial capability to impleme alternatives; (4) any other pertinent societal costs and benefits 1 impacts to the, environment; (6) any legal impedimentsonto impleme
{
of each altern'ative including whether the alternatives will com applicable NRC regulatory requirements; and (7) the time required to develop and implement each alternative.
(d) !
The request must include the basis for:
(1) rejecting each '
alternative; and (2) concluding that no alternative is available .
$ 62.14 Contents of a request for an extension of emergency access . !
A request for an extension of emergency access must include:
(a)
Updates of the information required in S 62.12 and S 62 13; an .
(b)
Documentation that the generator of the low-level radioactive l
waste granted emergency access and the State in which the low-level radioactive waste was generated have diligently, though unsucce ,
acted during the period of the initial grant to eliminate the need for 41 t Enclosure B
1 4
[7590-01]
emergency access.
Documentation must include:
(1) an identification of additional alternatives that have been evaluated during the period of t initial grant, and (2) a discussion of any. reevaluation of previously considered alternatives,' including verification of continued attempts to gain access to a disposal facility by voluntary agreement.
S 62.15 Additional Information.
(a)
The Commission'may! require additional information from a person 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 Commis'sion 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-tion, or any other time as 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 ynder this part.
l 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 initial determination under 9 62.21.
(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 Commission determination under this part.
42 Enclosure 9
. [7590-01]
9 62.17 Elimination'of repetition.
In any request under this part, the person making uest may the re incorporate by reference information contained i n a previous acclimation, Statement, or report filed with the Commission provided th t a these refer-ences are updated, clear and specific.
S 62.18 Denial of request.
If a request for a determination is based on circumstances
"' 6 'ss,'nare i e too remote and speculative to allow an informed
, tne ~9 dete 1
~ "~-*----
may deny the request.
s 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 or a f
Commission determination under this part from any generato r of low-level radioactive waste, or any Governor on behalf ofr genera- any generator tors located in his or her State, t*: t+a., Cem missien I
"'---+aa af the office of Nuclear h= 6cr ia s anim y ..i :;f;;_.,J., ""::, ::
0;;i;a;;, shall make a deter-mination that--
M (1)
Emergency access to a regional disposal facility or a non-Federal disposal facility within a State that isernot of a a memb Compact for specific low-level radioactive waste is necess ary because of l
an immediate and serious threat (i) to the public yhealth or and saf (ii) the common cefense and security; and 1
l l
43 Enclosure B
[7590-01]
(2) The threat cannot be mitigated by any alternative consistent with the public health and' safety, including those identified in S 62.13.
t h (.c mvm stien 7 '
(b) In making a determination under this section, 9: M m ar, )
j Z3, m d m m.m . shall be guided by the criteria set forth in s 62.25. 1 (c) A determination under this section must be in writing and con-tain a full explanation of the facts upon which the determination,is based and the reasons for granting or denying the request. An affirmative !
determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of-wastes, specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the immediate threat to public health and safety or the common defense and security. It may also.
contain conditions upon which the determination is dependent. l S 62.22 Notice of issuance of a determination.
(a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of tne final determination in writing, to the person making the request, the Governor of the State in which the low-level radioactive waste requiring emergency access was generated, and the Governor of the State in which the designated disposal facility is located, and if pertinent, the appropriate Compact 1 i
Commission, of the final determination.
For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe the low-level 44 Enclosure B i
l
[7590-011 radioactive waste as to source, physical and radiological characteris ,
and the minimum volume and duration (not to exceed 180 days) alleviate the immediate and serious threat to public health and s the comon defense and security.
For the Governor of the State in which the low-level waste was generated, the notification must indicate that no extension of emergency access will be granted under i 62.24 absent diligent State and generator action during the period of the initial gra .
(b)
The Secretary of the Comission will cause to be published in the Federal Reoister a notice of the issuance of the detennina .
(c)
The Secretary of the Comission will make a copy of the final 1
determination available for inspection in the Comission's Public Document Room, 1717 H Street NW., Washington, DC.
i 62.23 Determination Co NW s,s for granting temporary emergency acetss.
(a) The'"...n...^%
I i
^=, may grant temporary emergency access to h an appropriate non-Federal disposal facility or facilities provided that the determination required under i 62.21(a)(1) is made; (b) the notification procedures under i 62.22 are complied with; and (c) the temporary emergency access duration will not exceed forty-five(45) days.
5 62.24 Extension of emergency access. 1 j
(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 her State, for an extension of emergency access that was initially 45 Enclosure B
-_______--_-a
a
+
(7590-01]
granted under S'62.21, the ' "
initial determination of.whether--
- . -. .... ,,- , shall make an h
(1) emergency access continues to be necessary because of an im iate and serious threat to the public health and safety nor the ccm defense and security; i (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and (3) \
the generator of low-level waste and the State have dilige though unsuccessfully acted during the period of the initial o grant t eliminate the need for emergency access.
(b)
After making a determination pursuant to paragraph (a) of this1 section, the requirements specified in SS 62.21(c) and (d), and 62.22 ,
must be followed.
S 62.25 Crite'ria for a Commission determination.
(a)
In making the determination required by Section 62.21(a) of this part, the Commission will determine whether the es circumstance i d
described in the request for emergency access create 2 serious and 1
immediate threat to the public health and safety or the ense common def ')
and security.
(b) l In meking the determination that a serious and immediate tnre \
exists to the public health and safety, the Commission will consider ,
notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this cart:
(i) the nature and extent of the radiation hazard u that wo from the denial of emergency access, including consideration of ,
46 Enclosure B
[7590-01]
(A) -the stancards for radiation protection' contained of-in'Part 2 this Chapter; (B) any standards governing the release of radioactive materials to the ger.eral environment that are applicable to the facility tnat generated the low level waste; end (C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access i
request; %
g rt 4<.<. M-(ii) theextenttowhichessentialservicesfuchasmedical ,
therapeutic, diagnostic,orresearch. activities)willbedisruptedbyth e denial of eme'rgency access.
(c)
I For purposes of granting temporary emergency access uncer Section 62.23 of this part,.the Commission will consider thed crite contained in the Commission's Policy Statement for determin 8' wnether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within th of Section 208 of the Energy Reorganization Act of 1974.
(45 FR 10950, February 24, 1977.)
(d)
In making the determination that a serious and immediate th to the common defense and security exists, the Commission nsider, will co notwithstanding the availability of any alternative identified in secti 62.13 of this part:
(1) whether the activity generating the wastes is necessary to the protection of the common defense ,and (2) security whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten common defense and security.
The Commission will consider the views of the Department of Defense (000) and the Department of Energy (
n the 47 Enclosure B
[7590-01)
Statement of support .as submitted by the person requesting emergency access, in evaluating' requests based all, or in part, on a serious and immediate threat to the common defense and security.
(e) In making the determination required by S 62.21(a)(2), the-Commission will consider wnether the person submitting the request:
(1) has demonstrated that a good faith effort was made to identify and evaluate alternatives that could mitigate the need for emergency access; (2) has considered all pertinent factors in its evaluation of alterna-tives including te-of-the-art technology and impacts on public health g and safety.
(f) In making the determination required by S 62.21(a)(2), the Commission will consider implementation of an alternative to be unreason-able if (1) it adversely affects public health and safety, the environ-ment, or the common defense and security; or (2) it results in a signifi-cant curtailment or cessation of essential services, ' .M ; :9% g
[u earu,, ~ , affecting public 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 laws or Federal laws and regulations; or (5) it cannot be implemented in a timely manner.
(g) The Commission shall make an affirmative determination under S 62.21(a) only if all of the alternatives that were considered are found to be unreasonable.
(h) In making a determination regarding temporary emergency access under S 62.23, the criteria in parts (a) and (b) of that section shall apply.
i 48 Enclosure B
(7590-01)
(1) fn making a determination regarding an extension of em access under S 62.24, the Commission shall consider whether th making the request has diligently acted during the period of th grant to eliminate the need'for emergency access, (j)
The Commission shall consider whether any waste delivered f disposal under this part has been reduced in volume to the maxi practicable using available-technology.
S 62.26 Criteria 1% f r ishes designating a disposal facility.
k, .
(1) Wa n' -+^* W<< n' dac hnaa
[ hall designate an appropriate non-Federal regional disposal facil' y or facilities if an affirmative determina on is made pursuant to 62,21.
In designating a disposal facili or facilities, the C / i ission will consider _the. folio ing er eria:
(a) A disposal ,
acility will be excluded from sideration for emergency access *f (1) the low-level radioactiv
, wastes of the generator do not meet ;
e criteria established by the icense or the license i j
agreemen of the facility; or (2) the sposal facility is in excess of i its a roved capacity; or (3) gran 4 ng emergency access would delay the c}6singofthedisposalfacili pursuant to plans established before the, receipt of the request for
! mergency access; or (4) the volume of wast requiring emergency ac ss exceeds 20 percent of the total volume f low-level radioact We waste accepted for disposal attythe during fac the previou endar year.
(b)
, after applying the criteria in subsec 'on (a) of this part, more t an one disposal facility is identified a tion appropriate for designa-the Commission will consider additio Ifactorsindesignatinga 49 Enclosure B
and safety or the common defense and security; or (3) it is beyond.the ,
l i
technical and economic capabilities of the person requesting emergency access; or (4) implementation of the alternative would conflict with applicable State or local laws or Federal laws and regulations; or (6)-it cannot be implemented in a timely manner.
(g) The Commission shall make an a'ffirmative determination under s 62.21(a) only if all of the alternatives that were considered are found to be unreasonable.
(h) In making.a determination regarding temporary emergency access * '
under 62.23, the criteria in parts (a) and (b) of that section must apply. .
1 (1). In making a determination regarding an extension of emergency
))
access under 62.24, the Commission shall consider whether the person making j the request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
(j) The Commission shall consider whether any waste delivered for i disposal under this part has been reduced in volume to the maximum' extent practicabic using available technology. '
I
< N l
% 62.26 Criteria for designating a disposal facility.
(p>h (a) The Commission shall designate an appropriate non-Federal or regional disposal facility or facilities if an affirmative determination is made g pursuant to s 62.?1.
g (b) The Comission will exclude L.em consideration : reg;;;t f:r
^ r ;r g :::a.,- m + : - '%,
if:
49
{
l
'}
')
(1) the low-level radioactive wastes of.the generator do not meet the criteria established by the license or the license agreement of the facility; or' l (2) the disposal facility is in excess of its approved capacity; or
)
(3) granting emer.gency access would delay the-closing of the disposal 4
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 disposal at.the facility during the previous calendar year. *
(c') If, after applying the exclusionary criteria in paragraph;(b) of this section, more than one disposal facility.is identified as appropriate for designation, the Comission will then consider additional factors in ;
designating a facility or facilities including:
(1) type of waste, i
(2) previous disposal practices,
)
(3) transportation, f
(4) radiological effects, l (5) site capability for handling waste, and (6) any other considerations deemed appropriate by the Comission.
(d) The Comission, 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 to a Federal Register notice requesting coment, as provided in paragraph (b) of 62.11.
g !
i
~
49a i
[7590-01]
facility or facilities including: ) type'of waste, (2) previous dis-posal practices, (3) transpor ion, (4). radiological effects, (5) site capability for handling w te, and (6) any other considerations deemed appropriate by the Co ission.
(2) The Co ission will use information available including information tained from the operating non-Federal or regional LLW disposa sites in response to receipt of copi of the request under p graph 6 62.11(b), in making its desi ation.
Dated at Washington DC, this day of , 1987.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, i Secretary of the Commission.
! e 50 Enclosure B
3
~n
__ M(wAcc.y-r futag-(nd>%A W M $ ,f1 M>2 -
i
)
l i
i 4
i ENCLOSURE 1 FR Notice l
i i
/
E j
.- L.)w o J '
(7590-01]' j q
NUCLEAR REGULATORY COMMISSION i
10 CFR PART 62 '
Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilitie's AGENCY:- Nuclear Regulatory Commission.
ACTION: Proposed Rule.
SUMMARY
The Nuclear Regulatory Commission (NRC) is proposing a rule-to'-
establish procedures and criteria for fulfilling .its responsibilities',
~
i l
associated with acting on requests by low-level radioactive waste.(LLW) generators, or State officials on behalf. of .those generators, for emergency access to operating, non-Federal 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 lack of access results in a serious and immediate threat to the public health and safety or the common defanse and security.
DATES:
Comments should be submitted on or before Comments received after this date will be considered if it is practical !
\
to do so, but assurance of consideration cannot be given except as to comments received before this date.
1 Enclosure B
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - _ - - - - - - - - - - - - - - -- - - - ~ ~ - ~
[7590-01]
ACOT,ESS:
Submit written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC .20555, Attention:
Docketing and Service Branch. Copies of comments received and the regulatory analysis may be examined at the NRC Public Document Room.
1717 H Street NW,, Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of Low-level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 443-7783.
SUPPLEMENTARY INFORMATION: -
I. Background II. Legislative Requirements -
III. Legislative History IV. NRC Approach V. Assumptions VI. The Proposed Action VII. Rationale for Criteria l VIII. Specific Request for Comments IX. Requests For Emergency Access Made Prior to the Effective Date of the Rule X. Finding of No Significant Environmental Impact: Availability XI. Paperwora Reduction Act Statement XII. Regulatory Analysis !
XIII. Regulatory Flexibility Certification XIV. List of Subjects in 10 CFR Part 62 2 Enclosure B j
E
[7590-01].
I.. Background The low-Level Radioactive Waste Policy Amendments'Act of 1985 (PL 99-240, January 15, 1986), "the Act"~ directs the States to-develop their own LLW disposal facilities or to form Compacts and cooperate in tae development of regional LLW disposal facilities so that the new facilities will be available by: January 1, 1993.
The Act establishes procedures and milestones for the selection and l
development of the LLW disposal facilities. The Act also establishes a system of incentives for meeting the' milestones, and penalties for failing to meet them, which is' intended to assure steady progress toward new facility development.
The major incentive offered by the Act is that the. States and-regional Compacts which meet the milestones will be allowed to continue to use the existing disposal facilities until-their own f#cilities are available, 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 t'acilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delincuent State or Compact region further access to their facilities.
Section 6 of the Act provides that the Nuclear Regulatory Commission (NRC) can grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities if access to those l
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 a determination be made as to whether the threat can be mitigated by any alternative i
1 3 Enclosure B 1
i
. _ _ _ . _ _ _ _ _ _ _ _ - _ - - A-
-[7590-01]'
consistent with the public health'.and safety, including. ceasing the activities that generate the waste. NRC must be able, with the information provided by the.' requestor, to make both' determinations prior to granting emergency access. The purpose.of this proposed regulation is'
.to set forth the procedures and criter'ia that will be used by the-Commis -
sion to determine if emergency access to a LLW disposal ! facility 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 NRO to ,
designate the operating LLW disposal facility or-facilities'where the 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 generatedthatemergencyaccesshas'beengrante'd,andto.notifh.theState and Compact which will be receiving the waste that emergency access to their LLW disposal f acility is required. . The Act limits NRC to 45 days from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
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 allows that only one extension of emergency access, not to exceed 180 days, is to be granted per request. An extension can be approved only if the LLW generator who was originally granted emergency access and the State in which the LLW was generated have 4 Enclosure B E__________---------------------- - - - -- - - - - - - - - - -
[7590-01].
diligently though unsuccessfully attempted during 'the. period of the initial grant to eliminate the need'for.emergencv iccess, c The Act also provides that requests for eme.rgency access shall contain all information and certifications that NRC requires to make its determination.
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the. Commission's discretion because of a serious and immediate threat to the public health and safety or the' common I defense and security pending a Commission determination as to whether the 1
I threat could be mitigated by suitable alternatives. 'The grant of temporary emergency. access expires 45 days af ter it is granted. ,
Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is proposing this rule to establish the procedures and criteria that will be used in m,aking the. required.
emergency access determinations. Since the requisite condition that must be met in order for a requestor to be eligible for emergency access
! consideration is that the requestor has already been denied access to the LLW disposal sites by the States or Compacts with operating disposal facilities, implicit in any decision to grant emergency access is the 1
fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State or generator.
Although Congress provided NRC the statutory respon-sibility for implementing Section 6 of the Act and gave the Commission l
authority to decide whether or not access will be provided, emergency access decisions are likely to be controversial. By setting out the procedures and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to provide an opportunity 5 Enclosure B
__um_----.
1 I
[7590-01] l for input from potentially affected individuals and organizations, add predictability to the decisionmaking process, and to help ensure that the q NRC will be able to make its decisions on emergency access requests within the . ira allowed by the Act. l
\
l III. Legislative History The legislative history of the Act emphasizes the Congressional intent that emergency access be used only in very limited and rare circumstances 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 I
by the unsited States as an alternative to the pursuit of the development i of new LLW disposal capacity. The legislative history indicates that Congress believed that with the various management options available to i
LLW generators, including, for example, storage or ceasing to generate the waste, the 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 resort.
In developing the emergency access rule, NRC has tried to be l
consistent both with the actual text of Section 6 of the Act and with the intent expressed by Congress regarding decisions made pursuant to l
Section 6. The proposed rule sets strict requirements for granting emer-gency access and serves to encourage potential requestors to seek other 6 Enclosure B
[7590-01L means for resolving the 'roblems.creat'd p e by denial of access to LLW dis-posal facilities.
The proposed rule places the burden on the party requesting emergency 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 requirements for. approving requests for emergency access, NRC-intends to reinforce 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 tacilities.will not automatically be available as an alternative to developing that capacity.. NRC believes'this interpreta-tion is consistent with a plain reading of the Act and the supporting legislative history.
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 I
any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to-- l ensure that the Compact Commissien 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 Section 6(n) 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 l
7 Enclosure B
_ - _ _ _ _ - _ - _ _ - - - - _ - - - l
i
[7590-01]
I l,
with a veto over the NRC's grant of emergency access. The basic purpose
{
of the Section 6 emergency access provision is to ensure'that sites that l'
would normally be. closed under the Act will be available'in emergency situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the i
! legislative framework established in the Act. As emphasized in the j House Committee on Interior and Insular Affairs Report on the Act, i ratification of a Compact should be conditioned on the Corpact's acting in acened with the provisions of the Act. If the Compact refuses to i providu, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void. -
t H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). !
l IV. NRC Approach
)
In developing the proposed rule, the NRC's approach was to:
- 1. assure 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. assure that the procedures and criteria that are established in t u
10 CFR Part 62 can be implemented within the 45-day period specified in the Act.
]
- 4. establish procedures and criteria for designating a site to 1
^
receive the waste which are fair and equitable and which are consistent 1
l 8 Enclosure B t l
- _ _ - - - _ - - - - - - l
[7590-01]
with the other provisions of the Act, including the limits on the' amount- d
{
of waste that can be dispos'ed'of,at each operating facility.
- 5. -establish requirements for granting emergency access that are-i stringent enough to discourage the unsited States and' regions from. i
. viewing emergency access as'an alternative to diligent pursuit of their own disposal capabilityr and yet flexible enough to allow'NRC to respond appropriately in situations where emergency access'is genuinely needed l
to protect the public: health and safety or the' common defense and. I security.
V. Assumptions , -
1
.In developing the rule NRC made several. assumptions. These.
assumptions are discussed below.
j NRC staff.are assuming that the wastes requiring disposal under the j l
emergency access provision will be the result of. unusual circumstances.
.The nature of routine LLW management is such that.it is difficult to con-I ceive of situations where denial of access to disposal would create a i serious and immediate threat to-the publi.c health and safety or the national security. In most cases generators should be able to safely i
store routinely generated 1.LW or employ-other options for managing the waste without requiring emergency access.
i Thus, if all the LLW genera- l tors in a State were denied access to LLW disposal facilities, NRC staff 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 in each casc.
I l
In preparing the rule, NRC has also assumed that requests for emer-gency access will not be made for wastes which would otherwise qualify 9 Enclosure B
[7590-01]
for disposal by the Department of Energy (DOE) under 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, maintenance, 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 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-1 solely on quantitative criteria, but decided against that approach.
While NRC has identified some of the wastes and the scenarios which would create a need for emergency access, it is unlikely.that all possibilities can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which emergency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule as proposed contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis.
VI. The Proposed Action The proposed rule contains three Subparts, A, B, and C. 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.
10 Enclosure B
p
~~
[7590-01]
Subpart A -' General Provisions -
Subpart A contains'the-purpose and scope of the rule, definitions, instructions for communications with the Commission,.and provisions' '
relating to interpretations of the rule. .Subpart A states.that the rule
- applies to all persons asidefined by this regulation who have been denied, L
access'to' existing commercial LLW disposal facilities'and who submit a request-to the Commission for an emergency access' determination under-Section 6 of the Low-Level.Radioac'tive Waste' Policy Amendments Act'of-1985.
[ Subpart 3 - Request for a' Commission Determination ,
-Subpart 8 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 q
y 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
- )
consideration 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 safety or the common defense and security might exist, (b) whether alternatives exist that could mitigate the threat, and (c) which non-Federal disposal facility or facilities should provide the disposal required, i In addition to the above, Subpart B also sets forth procedures for the filing and distribution of a request for a Commission determination. '
11 Enclosure B l
[7590-01]
It provides for publication.in the Federal Register of a notice of receipt-
-of a request for emergency access to inform the'public that Commission action on the request is pending. Even though comment is not required by
)
the Act or the Administrative Procedure Act, Subpart B provides for;a i 10-day public' comment period on the request'for emergency access. J In the event that the' case for requesting emergency access is to be 3
based totally or in part 'on the' threat posed to the common defense and security, Subpart B requires that a s'tatement of support from the' .
Department of Energy (DOE) or the Department of Defense (D00)'(as i l
appropriate) be submitted as part of the initial request for. emergency.
access. If the request is based entirely on common defense and security concerns, NRC will not proceed with the emergency access evaluation until the statement of support is. submitted.
)
1 Subpart C - Issuance of a Commission Determination For the NRC to. grant emergency' access, the Commission must first' i conclude that there is a serious and immediate threat.to the public health and safety or the common defense and security, and second that there are no available mitigating alternatives. Subpart C sets out j the procedures to-be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and for granting temporary emergency access; establishes the criteria and standards to be used by the Commission in making those determinations; and specifies the precedures to be followed in issuing them.
Subpart C provides that NRC, in making the determination that there is a serious and immediate threat to the public health and safety, will 1
12 Enclosure B i
E_-_______----_---_-__
[7590601):
consider: (1)'the nature and' extent of the radiation hazard that.
would result from the denial.of. access including consideration of:the standards for radiation protec. tion 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
~
l 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, therapeutic, diagnostic or research activities will be disrupted by the denial of emergency access.
In making the determination that 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 the protection of 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 consider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor.
The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potentially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered all factors in the evaluation of alternatives including state-of-the-art 13 Enclosure B
.[7590-01).
technology and the impacts of the' alternatives'on the'public. health and 1
safety. For each alternative, the Commission will- also consider whether-
~
the requestor has demonstrated that.the implementation of the alternative 3 is unreasonable'because' of adverse effects' on the public health and safety or the common 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. In the proposed <.
rule, the Commission ' considers the impact on medical services from ceasing . .I l
the activity in making its determination that.there is a serious and immediate threat to the public health and safety under Section 62.25.
However,.the Commission is also concerned as to whether the'implementa- )
1 l
tion of other alternatives may have a disruptive effect on' essential
-)
medical services. The Commission specifically requests information'on l
these impacts in 6 62.12 so they can be considered in its overall
- l. determination about reasonable alternatives.
According to the procedures set out in Subpart C, the Commission g
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 l emergency access will be denied.
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 ;
14 Enclosure B L__ _ __
h- .
-l'
[7590-01) .
i j
l decide which operating non-Federal' LLW disposal facility should receive: j i
the LLW approved for emergency access disposal.
Subpart C sets out that in designating a di.sposal 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 disposal exceeds 20 percent of the total volume of the LLW accepted for
~
disposal at the site in the previous calendar year. If the designation cannot be made on these factors alone, then the Commission will consider
.the type of. waste, previous disposal practices, transportation j requirements, radiological effects, site capability for handling the-waste, 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- 1 i
sary, the Commission will have to consider whether the emergency access i situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives.
i l
15 Enclosure B
o l
[7590-01)
- i
'j VII. . Rationale for Criteria I 4
The proposed 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 = I and immediate threat exist to the public' health and safety or the common defense and security is key to NRC's decisions.to grant emergency access.
J Neither the Act nor its legislative history provide elaboration regarding }
Congressional intent for what would constitute "a serious and immediate threat." ,
(1) To the Public health and safety--
The criteria in the proposed rule for determining whether a. serious-and immediate threat to the public health and safety exists, address three situations. Section 62.25(b)(i) addresses the situation where the lack of access would result in a' radiation hazard at the-facility th'at is generating the LLW.
Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access.
I The criteria in the proposed rule for determining whether a serious i
and immediate threat to the public health and safety exists is qualitative in nature in order to provide the Commission with the flexibility I
necessary to consider a wide range of potential factual situations.
However, in making this qualitative determination, the criteria require the Commission to consider several existing quantitative standards.
16 Enclosure B 4
\: - - _ . _ _ _ - _ _ - - _ - _ _ _ _ _ . - - - _ _ _ _ . _ _ - _ _ _ _ _ _ - -
[7590-01)
, , i i
These consist of the Commission's standards for radiation protection in ]i 10 CFR Part 20, any standards on the release of radioactive materials to ;
l i
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 emer- )
gency access request. This latter category would include license provisions, orders, and similar requirement'. s The Congressional concern in enacting Section 6 of the Act was to ensure that a serious'and immediate threat to the public health and safety did not result from a denial of access. In addressing this concern, the Commission will evaluate the request for emergency access, in its entirety, i.e., the threat to public health and safety and'the alternatives to emergency access that may be available to mitigate that threat. In other words, in determining what constitutes a serious, and immediate threat to public health and safety, the Commission must consider 1' what threat would be unacceptable assuming that no alternatives-are avail-able. In the Commission's judgment, any situation that'would result in l exceeding the occupational dose limits or basic. limits of public exposure upon which certain requirements in 10 CFR Part 20 are founded would be an {
1 unacceptable threat to the public health and safety, and should be 1
)
considered for emergency access.
The 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 ufety would be created at the facility at which the waste is stored, although it is clear that Congress was concerned over the potential radiation hazard that might result at a particular facility 17 Enclosure B l
l
[7590-01):
that was denied access to LLW disposal. The Commission does not anticipate any situation where the lack of access would create a serious and immediate l 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, the proposed rule l t
establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission would act immediately to prevent or mitigate any threat to the public health and safety, including shutting down the facility. However, there may be circumstances where a potential safety problem would_still exist, after the facility was shut down or the activity stopped, if the low level weste' I could not be disposed of because of denial of access. In this situation, emergency access may be needed. The Commission would emphasize first, that it is extremely unlikely that a serious and immediate threat to the l public health and safety will ever result at the generator's facility from the lack of access to a disposal facility, and second, if such a situation does exist, the Commission will move immediately to eliminate the threat.
If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This is separate from a finding that a serious and immediate threat to the 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 emergency access for a period not to exceed 45 days, solely upon a finding of a serious and immediate threat to the public health and safety. In 18 Enclosure B l
[7590-01]
h 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 temporary 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 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208,of the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.)
This provision requires the Commission to keep Congress and the public informed of unscheduled incidents or events which the Commission 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 proyided to public health and J
safety. Such an event could include--
- 1. Moderate exposure to, or release of, radioactive material;
- 2. Major degradation of safety related equipment; or i
- 3. Major deficiencies in design, construction, use of, or '
management controls for licensed facilities or activities, In deciding whether to grant temporary emergency access, the l Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
19 Enclosure B
[7590-01]
(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," or to "the common defense and security," realistically NRC cannot make the latter judgement without some information from 000 and 00E which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate 1
threat to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives.
While NRC has the Congressional mandate for this determination, NRC staff believe it necessary to consider D0D and 00E information as part of the decision making process.
NRC considered several approaches for involving D00 and DOE in the process of determining whether requests for emerge'ncy access should be granted on the basis o' % serious and immediate threat to the common defense and security. It appears that the best way to provide such interaction would be to require that requests filed with NRC for emer-gency access which are made entirely, or in significant part, on the basis of a serious and immediate threat to the common defense and security, should include appropriate certification from DOE or D0D substantiating the requestor's claim that such a threat will result if emergency access is not granted. The necessary certification in the form of a statement of support should be acquired by the requestor prior to applying to NRC for emergency access so the certification can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the 20 Enclosure B
( ___ _-_________ - -
[7590-01) determination with D0D or DOE. So while the Commission intends to give the D0D and DOE certifications 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 niitigate the threat in a manner 5 consistent with the public health and safety. As proposed in the rule, requestors for' emergency access will have to demonstrate that they havp explored the alternati es wailable and that the only course of action remaining is emergency access. Only after this has been demonstrated to NRC will the Agency proceed with a grant of emergency access.
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 storage 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 alterna-tives which a generator must consider 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 operators of commercial nuclear reactors with special access to disposal 21 Enclosure B
__----s----~ " ' ' ' ' ^^ _ _ - _ _ _ . _ - - _ - _ - - - - - - - - - - - - - - - - - - - - - - - -
[7590-01).
in the event that unusual or unexpected operating, maintenance, repair or.
. safety activities produce quantities of waste which cannot be otherwise 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 volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus, NRC has taken the position in the proposed-rule that as long.as unusual ~ volumes disposal capacity is'available for LLW which qualifies for such aisposal, emergency access should not be requested. Applications for emergency access.for wastes which NRC determines would otherwise be eligible for, disposal under the unusual volumes provision, will be denied.
Another alternative applies only to Federal or defense related generators of LLW.
NRC will expect that generators of LLW falli.ng.into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access to:non-Federal facilities under the emergency access provision.
For all the alternatives that are considered, NRC is requiring detailed information from the generator regarding the decision process leading to a request for emergency access. The requestor will be expected i
to demonstrate that he has considered all pertinent alternatives and to provide a detailed analysis comparing all of the alternatives considered.- ;
The requestor will te expected to demonstrate that he has considered combining alternati.es in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even on a ;
i temporary basis, until other arrangements can be made. The requestor will be expected to evaluate the costs, economic feasibility, and ;
22 Enclosure B i
I L-_-_____--_
[7590-01]
I benefits to'the public health and safety of the potential alternatives, and to incorporate the results-into the request.
'(c) Designation of. Site 1 i
1 In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access, NRC 1 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 access wast'e if (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 disposal exceeds 20 percent of the total volume ~of the LLW accepted for i
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 capabili.ty for handling the waste at 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 facFities. Tr> the extent practicable, NRC intends to rotate !
i the designation of the receiving site, and, for the three currently operating facilities, to allocate emergency access disposal in proportion s
to the volume limitations established in the Act. In most cases, NRC 23 Enclosure B
m i
I
([7590-01]' )
would expect that the designation of a single site'will minimize handling- .
of and exposure to the waste and best serve the. interest of protecting 'i the public health,and safety. However, if the-volume of waste requiring emergency access disposal is large,.or.if there are other unusual or i extenuating circumstances,.NRC will evaluate the adv'antages and j i
disadvantages of designating more than one site to receive waste,from -4
'the same' requestor.
In addition to the above, NRC will also consider how much waste has. i been designated for emergency ac' cess . disposal to each site to date (both l
for the year and overall), and whether the serious and immediate 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.
decisions, the, Agency will have.to be.well' informed regarding the status of disposal capacity for each of the commercially operating waste disposal facilities. NRC intends to arrange to obtain this information on a l co.ntinuous basis.
It should be noted that in setting out the site designation provision )
for Section 6, Congress assumed there would always be a site deemed appro-l priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations I' provision set forth in the Act. It is not clear what options are available to NRC if all sites are deemed inappropriate to receive the LLW.
This may have to be addressed by Congress at some time in th future.
(d) Volum.: Reduction Determination Section 6(i) of the Act requires that any LLW delivered for disposal as a result of NRC's decision to grant emergency access "should be l
l 24 Enclosure B i 1
[7590-01) reduced in volume to the maximum 2xtent practicable." NRC will evaluate the extent to which volume reduction methods or techniques will be or 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-tion of volume. reduction techniques may be sufficient to mitigate the 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 of its mar. dated evaluation of the alternatives considered by the generator.
.From that evaluation, the NRC could. reach a finding on whether the waste has been reduced in a manner consistent with Section 6(i). ,
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 proces-i sing creates new wastes requiring 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 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 (including incinerators; evaporators-crystallizes; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific 25 Enclosure B
[7590-01]
activity considerations, actual volume reduction factors, generation of
. secondary wastes, equipment contamination, ef fluent' releases, worker exposure, and equipment availability);fand the administrative controls which couldlbe app;ied.
VIII. Specific Request for Comments NRC is interested in receiving comments on those parts of the
. proposed rule where NRC applied its discretion in order to implement the Section 6 provisions. NRC specifically requests comments on the following: (1) What scenarios are envisioned where emergency access would be required? (2) What are the potential problems with 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 sc urity? (4) What are the potential di.fficulties with the proposed approach for designating the j i
receiving site? and (5) What should NRC do if no site is found to be suitable for waste requiring emergency access?
NRC is interested in facts and recommendations on specific ways to be responsive to these issues.
While NRC will consider all comments on the proposed rule, it will be better able to respond to those comments that recommend specific solutions to any problem raised by the commenters.
IX. Requests for Emergency Access Made Prior to the Effective Date of the Rule In setting the schedule for this rule, the Commission has tried to anticipate when the first request might be made so the. final rule would 26 Enclosure B
_____m.-_____ - - -
[7590-01]
1 be in place before that time. However, it may be.necessary for a l generator or State to submit a request'for.a Commission emergency access determination prior to the effective date of this rule. Commission determinations made on requests re eived before the final rule is'in place will be guided by the criteria and pror.edures provided in this proposed rule.
X. Finding of No Significant Environmental Impact: Availability- )
i If adopted, the proposed rule would establish criteria and procedures for a Commission determination under 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 or l
the common defense and security. For the most part, the proposed-rule is ,
an administrative actio'n which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria 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 Par- ;.
that this proposed rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for.this determination is contained in the draft regulatory analysis prepared for this proposed.
regulation. The availability of the draft regulatory analysis is noted below.
27 Enclosure B
- - - - _ _ - - - - - - - - - - - - - -- ]
[7590-01)
XI. Paperwork Reduction Act Statement-This proposed rule adds information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
This rule has been submitted for review and approval of the paperwork requirements.
l XII. Regulatory Analysis-The Commission has prepared a draft regulatory ar.alysis of the proposed regulations. The analysis examines the costs and benefits of the alternatives considered by the Commission. The draft analysis is available for inspection, copying for a fee, at the NRC Public Document j
1 Room, 1717 H Street NW., Washington, DC 20555.
XIII. Regulatory Flexibility Certification NRC is using this proposed 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 available and in accordance with the Regulatory Flexibility i
Act, 5 U.S.C. 605(b), the Commission certifies that, if promulgated, this rule will not have a significant economic impact upon a substantial I l number of small entities.
The proposed 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 :- considered to be a small entity. The generators of LLW are nuclear pc.er plants, medical and academic facilities, industrial l
licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28 Enclosure B
r 1
[7590-01]. )
I these cate p ries, 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 s j
entities," the Commission does not believe there will be a significant j economic impact to these generators because the Commission does not anticipate that many generators will be affected by the proposed rule. 1 In order for the requirements of the rule to be imposed on a generator.,
the generator himself must initiate the action by requesting a grant of emergency access from NRC.
This would occur only because the generator has been denied access to LLW disposal.
{
The Commission is required to make emergency access determinations I by statute. Since a grant of emergency access is intended to enrrect 1
the problems LLW generators may encounter because of lack of access to l
{
LLW disposal, the provision of emergency access will benefit any generator l of LLW including small entities.
Establishing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large generators.
The proposed rule provides guidance to the generator on what information will be required for making requests for emergency access and provides an orderly framework for making those requests. Also, the proposed rule will enable generators to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
The impact of the recordkeeping requirements 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.
29 Enclosure B
I
[7590-02]
The NRC is seeking public comment. on the initial' regulatory flexi.--
)
bility analysis. The NRC is particularly seeking comment from small-entities (i.e., small businesses, small organizations, and small J
jurisdictions, under the Regulatory. Flexibility Act) as to how the regulations will affect them and,how the. regulations r.ay be-tiered or J otherwise modified to impose less stringent. req'irements'on u small entities while still adequately' protecting the'public health and safety, i
Those small entities which offer commcnts on.how the regulation could be_
' modified to take into account the differing.needs-of small entities ,
l should specifically discuss the following items: )
i (a) The size of their business and how'the proposed regulations ,- !
would result in a significant economic burden upon them as compared to larger organizations in the same business community.
(b) How the proposed regulations could be modified.to take into I
account their differing needs or capabilities.
(c) The benefits that would accrue, or the detriments that would 1
be avoided, if the proposed regulations were modified as suggested by the I commenter. i (d) How the proposed regulations, as modifieo, would more closely 1 equalize the impact of NRC regulations or create more equal access to i the benefits of Federal programs as opposed to providing special advan-tages to any individuals or groups.
(e) How the proposed regulations, as modified, would still j
adequately protect the public health and safety.
4 The comments should be sent to the Secretary of the Commission, U.S.
i Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.
30 Enclosure B
[7590-01] -
y
.?
XIV, ' List of. Subjects in 10'CFR Part 62 j
\
Administrative Prac'tice and Procedure Low-level Radioactive Waste Nuclear Materials
- j. .LLW Treatment and Disposal Emergency Access to Low-Levei Waste Disposal i Low-Level Radioactive Waste Policy Amendments Act of 1985-Denial of Access l 1 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 i
of 1974, as amended, and the Low-Level Radioactive Waste Policy Amend ,
ments Act of 1985, notice.is hereby given that adoption of a new 10 CFR Part 62 is contemplated.
4 1.
A new Part 62 is added to 10 CFR to read'as follows:
\ Scid fdIA
- Cr Subpart A - General Provisions Section:
6
2.1 Purpose and Scope
62.2 Definitions 62.3 Communications 62.4 Interpretations 62.5 Information Collection Requirements j
62.6 Specific Exemptions i
l l
31 Enclosure B w_____-_-
- I
/-
[7590-01]
/
~
~
Subpart 8 - Request for a Commission 0 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'teques't for an extension of ' mergency e access 62.15 Additional information 62.16 Withdrawal ofLa determination request
.{
l 62.17 Elimination of repetition (p).8%
Subpart C - Issuance of a Commission Determination -
62.21 Determination for granting emergency access-62.22 Notice of issuance of a determination !
62.23 Determination for granting temporary emergency access 62.24 i Extension of emergency access j 6 2. ',
Criteria for a Commission determination 62.26 Criteria for designating a disposal facility i
Authori.ty: 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 I Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 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).
32 Enclosure B ,
[7590-01] ]
k Subpart A--General-Provisions-1 S 62.1'. Purpose and scope, 1
(a) The regulations in this part establish' for specific' low-level' i
radioactive waste l(1) procedures and criteria for granting emergency access under.Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional i low-level radioactive. waste (LLW) disposal facility or to any.non-Federal .I disposal facility within a State that is i.ot a member of a Compact, and (2) the~ terms and conditions.upon which the Commission will grant this emergency access. ,
(b) The regulations in this part apply to all persons as defined by this regulation, who have been denied access to existing regional or '
non-Federal low-leve1' radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this part.
i S 62.2- Definitions.
1 )
As used this part: .
l )
"Act" means the low-level Radioactive Waste Policy Amendments Act of 1985 (P.L.99-240). '
\
" Agreement State" means a State that - (A) has entered into an I agreement with the Nuclear Regulatory Commission under section 274 of the ,
m Atomic Energy Act a 1954 (42 U.S.C. 2021); and (B) has authority to regulate the disposal of low-level radioactive waste under such agreement.
l 33 . Enclosure B E____________ ._
[7590-01] l i
" Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.
I
" Compact" means a Compact entered into by two or more States I 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.
" Emergency Access" means access to an operating non-Federal or
)
regional low-level radioactive waste disposal facility or facilities for I a period not to exceed 180 days, which is granted by NRC to a generator 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 far a period not to exceed 180 days.
~
(\) " Low-Level Radioactive Waste" (LLW) means radioactive mate l (a) is not high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section 11e(2) of the Atomic Energy Act of 1954
[U.S.C. 2014(e)(2)]; and the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste.
"Non-Federal Disposal Facility" means a low-level radioactive waste disposal facility which is commercially operated or is operated by a State.
" Regional Disposal Facility" means a non-Federal low-level radio-active waste disposal facility in operation on January 1,1985, or subsequently established and operated under a Compact.
1 34 Enclosure B
[7590-01]
" 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; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any generator or generators of low-level radioactive waste located in his or her " State";
or their duly authorized representative, legal successor or agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access tbtt is granted at NRC's discretion upon determining that access is necessary because of 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.
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 1717 H Street NW., Washington, DC, or 7915 Eastern Avenue, Silver Spring, Maryland.
S 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any 35 Enclosure B
[7590-01) officer or employee of the Commission other than a written interpretation by the General Counsel will be considered binding on the Commission.
S 62.5 Information collection requirements.
This proposed rule contains information collection requirements that are subject to'the Paperwork-Reduction Act of 1980 (44 U.S.C. 3501' et seq.) '7 4 de uclear Regulatory Commission'has submitted the information collection requirements' contained in this part to the Office of Manage - '!
ment and Budget (OMB) for review and approval of the paperwork requirements. ,
S 62.6 Specific exemptions.
The Commission may, upon application of any interested person or-
-(
t upon its own initiative, grant an exemption from the requirements of the regulations in this part that it determines is authorized by law and will i not endanger life or property or the common defense and security and is otherwise'in the public interest. .
Subpart B--Request for a Commission Determination 6 62.11 Filing and distribution of a determination request.
(a) .The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the Commission.at the address specified in S 62.3, with a copy also provided to the appropriate Regional Administrator at the address specified in Appendix 0 to Part 20 of this chapter. The request must be signed by the 36 Enclosure B w- _-_---___- - _--_ - -__--__-__---________- -_-- - _ - - --_ _ _ _ _ ____ - . _ _ . - _ . _ _ _ - _ _ - - _ . _ . . _ _ . - _ _ _ - - - - _ _ . _ - _ - - - _ _ _ - - - - _ _ _
[7590-01]
person requesting the determination of the person's authorized repre-sentative under oath or affirmation.
(b) Upon receipt of a request-for 'a determination,:the Secretary of the Commission will cause to be published in the Federal Register a '
notice acknowledging receipt of the requ'est and asking.thatfpublic comments on the request be submitted within 10. days of the'date'of the notice. A copy of the request will be made available for~ inspection in-the Commission's Public Document Room. 1717 H Street NW., Washington,- DC, and in the Local.Public Document' Room of.the' facility submitting the i
request. .The Secretary of the Commission will also. transmit a copy,of the' request to the U.S. Department of Energy, to the Governor ~of the State, where the waste is' generated, to the States with operating non-Federal; low-level radioactive waste disposal facilities, and to the Compact Commissions.
with operating regional low-level radioactive. waste disposal facilities.
(c) 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 S170.31 of~this chapter. '
1 (d) 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 processing. !
or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General s199 Information.
A request for a Commission determination under this part must include the following information for each generator to which the request applies:
37 Enclosure B
[7590-01]
(a) i: cme and address of the person making the request; (b) Name and address of the person (s) or company (ies) generating the low-level radioactive waste for which the determination is sought; (c) The low-level waste generation facility (ies) producing the waste for which the request is being made; (d) A description of the activity that generated the waste; (e) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied access; (f) A description of the low-level radioactive waste for which emergency access is requested, including: -
(1) The characteristics and composition of the waste, including, but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment);
(ii) principal chemical composition; (iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and (v) concentrations and percentages of any hazardonc or toxic chemicals, chelating agents, 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 61.55; (ii) a list
- the radionuclides present or potentially present in the waste, their c centration or contamination levels, and total quantity; j
38 Enclosure B
[7590-01)
(iii) distribution of the 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 alleviate the threat to the public health and safety or the common defense and security, (4) The 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 minimization ,
techniques applied to the waste which assure that it is reduced to the maximum extent practicable, and the actual reduction in volume that occurred; , '
(g) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation which 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; 1 (3) A chronology and description of the actions taken by the person requesting emergency access to prevent the need for making such a l request, including consideration of all alternatives set forth in s 62.13, i
and any supporting documentation as appropriate; '
39 Enclosure B l l
[7590-01]
(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 if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences if emergency access is not granted; (h) Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future emergency access requests; (i) Documentation certifying that access has been denied; (j) Documentation that the waste for which emergen'cy 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 simultaneously under consideration by the Department of Energy (DOE) for access through the unusual volumes allocation; .
(k) Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common defense and security, a Statement of support from DOE or 000 certifying that access to disposal is necessary to mitigate the threat to the common defense and security; (1) Date by which access is required; and l
(m) Any other information which the Commission should consider in making its determination.
40 Enclosure B
[7590-0$].
G 62.13 Contents of a request for. emergency access: . alternatives.
(a) A request for emergency access under this part must include information on alternatives to emergency access. The request should include a discussion of.the consideration given to all. alternatives, including, but not limited to, the following: (1) storage of low-level radioactive waste at the site of generation; (2)' storage of. low-level radioactive waste in.a licensed storage facility; (3) obtaining access to'a disposal facility by voluntary agreement;. (4) . purchasing disposal i
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 .
1 radioactive waste; and (8) other alternatives identified under Subpart (b) of this Section. i (b) The request must identify all of the alternatives to emergency access considered and include a description of the process used to i
identify them, including any not specified in paragraph (a) of this i section. The request should also include. a description of the factors that were considered in identifying and evaluating alternatives, a chronology of actions taken to identify and implement alternatives during the process, and a discussion of any actions that were considered, but l not implemented.
(c) The evaluation of 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; (2) the adverse effects on public health and safety and the common defense and security, if any, of implementing each 41 Enclosure B
[7590-01]
alternative, including the curtailment or cessation of any essential services affecting the public health and safety or the common defense and security; (3) the technical and economic feasibility of each-alternative including the person's financial capability to implement the alternatives; (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 regulatory requirements; and (7) the time required to develop and implement each alternative.
(d) The request must include the basis for: (1) rejecting each alternative; 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 extension 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 emergency 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 considered alternatives, including verification of continued attempts to I
gain access to a disposal facility by voluntary agreement.
1 I
i 42 Enclosure B
\
[7590-01]
1 6 62.15 Additional Information.
(a) The Commission may require additional information from a person ;
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 l a request for additional information under paragraph (a)'of this section
~
within ten (10) days from the date of the: request for additional informa-tion, or any other time as the' Commission'may_specify. This denial.will 3 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 initial determination under S 62.21.
(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 Commission determination under this part.
S 62.17 Elimination of repetition. I In any request under this part, the person making the request may incorporate by reference information contained in a previous application, Stattment, or report filed with the Commission provided that these refer-ences are updated, clear and specific, i
43 Enclosure B E_______-----------__.--- - - - - - -
<_ 1
'[7590-01] i i
S 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 )i
$ 62.21 Determination for granting emergency access.
(a) Not'later than-(45) days after the receipt of a request'for,'a: !
Commission determination under this part from any- generator. of low-level ,
- l radioactive waste, or any Governor on behalf of any generator or genere- ;
tors located in his or her State, the Commission shall make a determina- !
tion that--
(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 immediate and serious threat (i) to the public health and safety or.
(ii) the common defense and security; and, (2) The threat cannot 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 Commission i
shall be guided by the criteria set forth in S 62.25. '
(c) A determination under this section must be in writing and con-tain a full explanation of the facts upon which the determination is based and the reasons for granting or denying the request. An affirmative determination must designate an appropriate non-Federal or regional LLW i
44 Enclosure B I
J
I
[7590-01] j disposal facility or facilities for the disposal of wastes, specifically describe the low-level radioactive waste as to source, physical and i radiological characteristics, and the minimum volume and duration ~(not to
~
exceed 180 days) necessary to alleviate the immediate threat to public
, health and safety or the common defense and security. It may also contain conditions upon.which the determination is dependent.
k S 62.22 Notice of issuance of a determination, i (a) Upon the issuance of a Commission determination the Secretary 1
of the Commission will make notification of the final determination in -
writing, to the person making the request, the-Governor of the State in which the low-level radioactive waste requiring emergency access was generated, and the Governor of the State in which the designated disposal facility is located, and if pertinent, the appropriate Compact Commission, of the final determination. For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, the notification must. set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the immediate 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 was generated, the notification must indicate that l no extension of emergency access will be granted under S 62.24 absent diligent State and generator action during the period of the initial grant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination.
45 Enclosure B L_______________-_------ -
6 R 1
[7590-01) d (c) 'The' Secretary of the Commission will make a copy' of' the' final determination available for' inspection in'the: Commission's Public s Document Room, 1717 H Street NW., Washington, DC.
S 62.23 Determination 'for granting. temporary emergen~cy access.
(a) The Commission may. grant temporary emergency access to an appropriate non-Federal disposal facility or' facilities provided that the _
determination required under S 62.21(a)(1) is made; (b) the notification procedures under'S 62.22 are complied with; i and (c) the temporary emergency access duration will not exceed ,
I forty-five (45) days.
i S 62.24 Extension of emergency access. .
(a) After the receipt of a request from any generator of low-level I
waste, or any Governor on behalf of any generator or generators in his or-i her State, for an extension of emergency access that was initially I
~
granted under S 62.21, the Commission shall make an initial determination of whether-- i (1) emergency access continues to be necessary because of an immed- i iate and serious threat to the public health and safety or the common defense and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and (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.
1 46 Enclosure B i
[7590-01)
(b) After making a determination pursuant to paragraph (a) of this section, the requirements'specified in SS 62.21(c) and (d), and 62.22, must be followed. ,
S 62.25 Criteria for a Commission determination.
(a) In making the determination required by Section 62.21(a) of this-part, the Commission will determine whether the circumstances described in
'the request for emergency access create a serious and immediate 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, not-withstanding the availability of any alt'rnative e identified in Section 62.13 of this part:
(i) the nature and extent of the radiation hazard that woul.d result from the denial of emergency access, including consideration of, (A) the standards for radiation protection contained in Part 20 of this Chapter; (B) 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 1
(C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request; (ii) the extent to which essential service affecting the public health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access.
(c) For purposes of granting temporary emergency access under Section 62.23 of this part, the Commission will consider the criteria 1
47 Enclosure B
[7590-01) j contained in the Commission's Policy Statement'for determining'whether-an !
I event at a facility or activity licensed or otherwise regulated by the l Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, February 24,.1977.)
.(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 section 62.13 of this part: (1) whether the activity generating the wastes is necessary to the protection of-the commonI defense and security, (2) whether i
the lack of access to a disposal site would result in'a significant disrup- i tion in that activity that would seriously threaten the common defense,and f' security._)TheCommissionwillconsidertheviewsoftheDepartmentof g f) Defense (D0D) and the Department of Energy (DOE) in the Statement of support as submitted by the person requesting emergency access,'in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security.
(e) In making the determination required by 6 62.21(a)(2), the ;
Commission will consider whether the person submitting the request:
(1) has demonstrated that a good faith effort was made to identify and evaluate alternatives that could mitigate the need for emergency access; (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) In making the determination required by S 62.21(a)(2), the 1 Commission will consider implementation of an alternative to be unreason-able if (1) it adsersely affects public health and safety, the environ-ment, or the common defense and security; or (2) it results in a signifi-cant curtailment or cessation of essential services affecting public health 48 Enclosure B I
_ _ , .:__ _ _ _ - - - - - - - - - - - - - - ~
[7590-01]
1
-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 laws or Federal laws and regulations; or (5) it cannot be implemented,in a timely manner.
(g) The Commission shall make an affirmative determination under S 62.21(a) only if all of the alternatives that were considered are found to be unreasonable.
(h) In making a determination regarding temporary emergency access under S 62.23, the criteria in parts (a) and (b) of that section shall apply.
(i) In making a determination regarding an extension of emergency access under S 62.24, the Commission shall consider whether the person-making i the request has diligently acted during the period of the initial. grant'to' eliminate the need for emergency access.
(j) The Commission shall consider whether any waste delivered for disposal under this part has been reduced in volume ~to the maximum extent 1
practicable using available technology.
S 62.26 Criteria for designating a disposal facility.
(h The Commission shall designate an appropriate non-Federal or regional disposal facility or facilities if an affirmative determination ismadepursuanttoS62.21./Ili~ designating ~a~ disposal-facil.ityorfacil-g O) i p- ities, the Commi.ssion will consider the following,p bei criteria:
@) ka) A disposal facility will be excluded from consideration for a
emergency access if (1) the low-level radioactive wastes of the generator do not meet the criteria established by the license or the license agree-V ment of the facility; or (2) the disposal facility is in excess of 43 Enclosure B
g-
-[7590-01)
/'
d .;
1 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 disposal at the facility during the previous calendar year. ge bl b(6)'If,afterapplyingthecriteriainsubsection(h)ofthispart, more than one disposal. facility is. identified.as appropriate for designa-kW tion, the Commission will consider additional factors in designating a facility or faci'iities including: (1) type of waste, (2) previous disposal >
practices, (3) transportation, (4) radiological effects, (5) site capability-forhandlingwaste,and(6)ankotherconsiderationsdeemedappropriateby the Commission.
Q # d"'
(9) The Commission will use information available including information 1
obtained from the operating non-Federal or regional LLW disposal sites in response to receipt of copies of the request under paragraph 6 62.13(b),
) b puLAu in making its designation.ce,& rattdt.%.mnr-ka,a % p 9g3[,
l Dated at Washington DC, this day of , 1987. j For the Nuclear Regulatory Commission. I i
)
Samuel J. Chilk, Secretary of the Commission.
i i
1 50 Enclosure B
^
l
- l l
and safety or the common defense and security; or (3) it is beyond the
. technical and economic capabilities of the person reques' ting emergency
' access; .or (4) implementation of the alternative would conflict with applicable State or local laws or Federal laws and regulations;' or. (5) .it
-cannot be implemented in a timely manner. .
-(g)..The Commission shall make an affirmativeidetermination under S 62.21(a) only if all of the alternatives that were' considered.are found:
to be unreasonable.
(h) In making a determination regarding temporary emergency access under.S 62.23, the criteria in parts (a) and (b) of that section shall ap'ly. p (1)
In making a determination regarding an extension of emergency ;
access under S 62.24, the Commission shall consider whether the person making the request.has diligently acted during the period of the init'ial grant to-eliminate the n,eed for emergency access.
(j) The Commission shall consider whether any waste delivered for disposal under this part has been reduced in volume to the maximum extent practicable using available technology.
6 62.26 Criteria for designating a disposal facility.
(1 The Commission shall designate an appropriate non-Federal or regional disposal facility or facilities if an affirmative determination f; is made pursuant to S 62.21.J bi~ designatin*! a cisposal-facility or facil-y it hs, the Commission will consider the following,r r
_, criteria:
g; ha) A disposal facility will be excluded from consideration for emergency access if (1) the low-level radioactive wastes of the generator do not meet the criteria established by the license or the license agree-J ment of the facility; or (2) the disposal facility is in excess of 49 Enclosure B i
[7590-01]_
/
its approved capacity; or (3f 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 disposal'at the facility during.
the previous calendar year. j.2%
b (6 [ If, after applying the criteria in subsection (h of this part, more than one disposal, facility is identified as appropriate-for designa-W tion, the Commission will' consider additional factors in_designati_ng a facility or facilities including: (1) type of waste, (2) previous disposal practices, (3) transportation, (4) radiol 6jical effects, (5) site capability for handling waste, and (6) any other considerations deemed appropriate by-the Commission.
+j#N f (0) The Commission will use information available_ including information obtained.from the operating non-Federal or regional LLW disposal sites in response to receipt,'of copies of th'e request under paragraph 6 62.11(b),
u l-lu f M ' c w u~L r&uM d -v 'f u n G.al w J.u s G L - T iu e s.b csl ,
in making its designation.
Dated at Washington DC, this day of , 1987.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
l l
i 50 Enclosure B u _ _ _ - - _ - . --
t k
1
.)
4757ti j Federal Register / Vol. 52. 'No. 240 / Tuesday December 15;i3987] Proposed Rules i 1
l
- e. 1 PART 96G-TOMATOES GROWN IN tJUCLEAFI REGULATORY XI. Paperwork Tieduction Act Statement j !
FLORIDA COMMISSION XII. Ecgulatory.Ana1pis j X111. Regulatory. Flexibility Certification ;
- 1. The authority citation for 7 CFR to CFR Par 162 XIVJList of Subjects in 10 CTR Part G2 part 900. Tomatoes Grown ir {
continues to read as follows.y I'lorida p I. Undgiound Emergency Access to Non-Federal i]
Authority: Secs 1-19. 40 Stat. :tt ns and Regional Low-Levet Waste The Low'-Level Radioactive Waste (
amended. 711 S C. no -4r/4- policy Amendments Act of 1905 (pub. L. 5 Disposal Facilities99-240, January 25,1980) "the AF
- 2. Section 900.323 is amended by Actwcy: Nuclear Regulatory directs the States to develop their own revising the introductory text. Commission.
LLW.disposahfacilities or to form paragraphs (a)(1) and (f) to read as ACTION: Proposed rule. Compacts and cooperate in the follows: development of regional LLW disposal
SUMMARY
- TheNudear Regulatory facilities so that the:new facilities will 5 9f 6.323 Handling regulation.
CommissionINRC) is proposing a rule to be available by January 1,1993.
During the c!fective date of this.rdle, establish procedures and criteria for through June 30. 3988, for the 1987. 88 fulfilling its responsibilities associated ne Act estalitishes procedures and with acting on requests'by low-level . milestones for the selection!and season and from October 10 through radioactive waste '[LLW) generatora. or development of the ULW disposal i june 30 each season Jhereafter, except .
asprovidedanparagra hs,(b).audfdjof State officials on. behalf of.those .
facilities.The Actilso establish's 'e a generators.'for emergene,y access to' system ofincentives for ms ~ the this.section, no person. allhandle ar;y milestones, andpenalties for fa' to lot of. tom'atoes for shipment sut's'ide the' operating.,nonTederal or.re.glonallow2 a o rneet them, whichts intended 1olassure .
- j. ' regulated; area'un'less)t. meets the ,
requ;Ircrpentajif paragraph (a).of tlus '
I*Vjg g,e g[3en r Nt no l$e j{ steady progreas'toward newTa development. . ;,.y 9.gW,cility f
Level Radioactive Waste Pdliqy t ., ; q, s'ection and no; , on.sh ,
i lot.of. tomatoes orshipm,all. handle.any '
Amehdments'Act of 1985.Grantsbfi The major incentive .oifered k[.the v.:
ent within the ,
regulated area unlessit meets.the : emergency access may be necesskry.if a Act.is that the States and regional .st' /
generator oilow. level radioactive waste Compacts which meet the snilestones? I requirements.of paragraphs (a)(1),
(a)(2)(i), and.(a){4) of this sectmn.
is denied access to operating low, level will be allowed to continuestoiuse the a radioactive waste. disposal facilities, e xisting disposal facilities :tmtil their (a)Cmdc.' sire, contoiner, and and the: lack.of access results in a own facilities are available. no later -
inspection requimments.-(1) Cmde. serious and in. mediate threat to the than january 1.1993..lf unsited States or Tomatoes shipped outside.the regulated public1calth and safety or the common area shall be graded and meet the Compact regions fail to meet' key defense.and security. milestones inthe Act, the' States or requirements for U.S. No.1. U.S.
DAirs: Comments should be submitted Compact Commissions with operating Combination. U.S. No. 2. or U.S. No.3 of on or before February 12,1988.. nonfederal or regionalliW disposal l the U.S..Stundards forGrades of Fresh Comments received after,this date will
} Tomatoes,except4 hat all shipments,0f facilities are authorizedio demand" be considered.if it .is practical todo so.' additional fees foi wastes accepied for '
size GX.740matoes snust grade at least but assurance of consideration cannot disposal. and ultimately to' deny 11ie' .
! U.S. No.2.or.better. * *
- be given except as;to: comments - '
a * * *
- LLW generators In the delinquent State received before this date. -
or Compact region further access to
.(f) Applicabi//ty.to imports.lUnder ADDRESS: Submit. written comments to their facilities, section 8e of the Act and4 980.212 the Secretary of theCommission.'U.S. Section 0 of the Act provides.that the
" Import regulations"(7 CIE 980212) Nuclear RegulatoryCommission ~ Nuclear Regulatory Commission (NRC) 1 tomatoes imported during the effective Washington,DC 20555. Attention:
can grant a generator emergency ,
date.of this rtile.through: June 30.t1988. Docketing and Service Branch.Coples of access" to non-federal or. regional low- 1 during abe 1987-a8 season.and from comments received and the regulatory level radioactive waste (LLWhdisposal 9 October 10 through June 30 each season analysis may be examined at the NRC facilities if access to those facilitiestas l therealter shall be at.least2% inches in Public Document Roon 1717 H Street been denied and accessis eccessaryln diameter. Not more than 10. percent. by . NW, % ashington.E 20551 )
order to. eliminate.an.immediate.and count.rin any lot may be smaller than mn mm'meAm NAcT: serious threat:tothepublic.: health and q
the minimum specified diameter. Alllots janMainbertWalon dipw Level safety orthe,commandlefen'seirid -
Wasu Mawmemnd f ;
with a minimum diameteraf28%: . , ..
.r. security. 'Ihe (Act alsesolid5es :that a inches andlarger shallbe.a111onst U.S.r. Decomm!sdon1ng.MMear... w. - determination tbelnaaelsd4whether l i No.B:grado..Allotherttomatoesshallbon . egu munds i ct least US.,No.2 grade..Any lotwith :s . @
f N UD Yn Wa%~gton. m e the threat oenbepillig$dd,4)y b.;r.d. i . alternatked_".O., publie- -J l
an more thanttoipercenteldtstamatoestlesen 7ckggM Mn be.
- healthonlleeNeyjy Jasingthe, y thin P.8 %:duchesinsliamatne Whall . :w it. testeistive it 'uSe$est; e,wayW- :act%MgenereWewestem J
. : y".f ... , s. .-111. IsgleletlW H ' Wae M*'M ' mustfbe gr:de at least U.S..No.1 , , finMnfo'rtsstion " ,
. . . . . . y l
. .. . m t . o . .IV.N % p M i e* *p " ' A ';
, D:ted: December o. t987. .
provided3by entjgestor.3to makeboth !
, Robert C. Keeney.
- s V. Amanmptians r t "W deterniinatiopQ~ dor tigran!!ng
, . VI.ThePsoposed Action . '3r emege F .%psrpose.of this Deputy Director. Emit and l'egetable VtLRstianale for Caiteris . : ..i-
- Dicision. Agriculium/MarkasingServtoe. VI!!. Specific Request forCommente ' propose rEgdl on1s:to. set forth the procedures and critetid (litwillbe used l171 Dec. 67-28783 J11cd 12-44-87p845 mm) '
bythe Commissionto deterndne.if eso coot mo**a X Fintiing df'No'Signflicant environmental- emergency access to a LLW disposal Impact: Availabihty facility should be granted. j l
i 5
i l'ederal Register / Vol 52. No. 240 / Tuesday, December 15, 1987 / Proposed Rules 47579
=
- n. Irghlative Requirements override the siled States' and/or access will have to provide clear und in addition to directing the NRC to Compacts' expressed desire not to convincing evidence that they have gr.ini emergemcy access at, dmcussed in awpt wasm hmn Gat qadcukmaw WmusW d WW @m W th" Ihdground veton. the Act further "I P"""" '"' A ""N #" * " '"""" N "8 " " * " "
(g dets NRG to desu;nate the operating Pf"Vid"d NRC the statutory ,
strict requirements for approving Lt.W disposal facihty or facdities where respnsdnlity for implementing section 6 requests for emergency access. NRC she waste will be sent 'or thsposal if the Act and gave the Commission intends to reinforce the idea that NRC determines that the circumstances authority to decide whether or not problems with LLW disposal are to be warrant a grant of emergency access. access will be provided. emergemy workcd out to the extent practical NRC s required to notify the Governor access dec sions are likely to be among the States, and that emergency (or chief executive officer) of the State c ntmmsta hs ng wt the pmcedures and criteria for makm.g access to existing LLW facilities wdl not in which the waste was 8encrated that automatically be available as an emergency access has been granted, and cmcrgency access decisions in a rule .
"g'"'"""
l to notify the State and Compact which which reflects public comment.NRC " devel P 8 that *
- tE intends to provide an opportunity for NRC believes this m. terpmtation s l will be receiving the vaste that consistent with a plain reading o t ie l emergency access to theil llW disposal input from potentially affected facility is required. The Act limits NRC individuals and organizations, add Act and the supporting legislative I
predictability to the decisionmaking. history.
to 45 days from the time a request is-process, and to help ensurethat the.
received to determine whether Section 6(g) of '.he Act requires the l emergency access will be granted and to NRC will be able to make its decisions NRC to notify the Compact Commission i
, designate the receiving facility;. on emergency access requests within the for the regibn in which the disposal The Act provides that NRC'can grant' time allowed by the Act:. facility is located of any NRC grant of
}
j cmcrgency access for a period notto< - .
IIL Legislative Iffstory eccess.for s&pproval asinaybe ,
l exceed too days per request.To ensure required under.thederms of its- !
that emergency, access is.not abused, the The legiidative history of the Act:
I compact." The Compact Commission emphasizes the Congressiormt intent.
l Act allows that only one extensionof shall act to approve emergency access l cmcrgency access, not to exceed 480- that emergency access be used'only.in.
very limited and rare circumstances:and' not later than fifteen days after 2 days, is to be granted per request: An receivin8 notification" from the NRC. -
extension can be npproved only if the that it was not intended to be used to .. .
circumvent other provisions of the Act. The purpose of this provision is to--
Lt.W generator who was originally Congress believed it was important for
- Ensure that the Compact.
granted ememency access and the State the successfulimplementation of the Act Commission is aware of the NRC's grant in which the LLW was generated have ;
that emergency access not be viewed by of emergency access and the terms of diligently though unsuccessfully the unsited States as an alternative to the grant, >
attempted during the period of the initial the pursuit of the development of new
- Allow the Compa'ct Commission to grant to climinate the need for emergency access..
LLW disposal capacity;The legislative implement any administrative-The Act also provides that requests history indicates that Congress believed procedures necessary to carry out the for emergency access shall contam all that with the various management grant of access, and options available to LLW generators, mformation and certifications that NRC including, for example, storage or; . Ensure that the limitations on.
reqmres to make its determmation.- emergency access set fordiin section ceasing to generate the waste, the' Temporary emergency access. to 0(h) of the Act havs not been exceeded..
instances where-thenrwas no' non-Federal or regional 11W disposal it wever,it is clearfrom the-facihties may be granted at the alternative to emergency access would t be unlikely. Congress expected that legislative history of the Act that sect,mn Commission's discretion because of a responsible action from the generators 6(g) should not be construed as-serious and immediate threat to the and the States / Compacts should resolve providing the Compact Commission with pablic health and safety or the common most access problems thus precluding a veto over the NRC's grant of defense and security pending a the necessity for involving the Federal Commission detennination as to emergency access. The basic purpose of' whether the threat could be mitigated by Sectionsector in granting emergency access. the section 6 cmergency access-6 was included to provide a provision is to ensure that sites that' suitable alternatives,The grant of temporary emergency access expires 45 mechanism ier Federal involvement as a would normally be closed under the Act vehicle of last resort will be available la emergency d:iys after it is granted. In developing the emergency. access Although the Act does not require situations. A Compact Commission veto rule, NRC bas tried.to be consistent.both-NRC to develop,a rule to carry out its would frustrate the purpose of'the section o responsibilities, NRC is withthe. actual.texttof section 6dthe. emergency. access provision andviould Act and.with.tha intent expressedby> '
proposing this. rule to establish the Congress regarding decisionsmadau , be generally contrary to thelegliisirve .
framework ~ established in tlia Act.'As '
procedures andcriteria in making .the required. that,willibe useil pursuant to,section 66 The. proposed rule ' emphasizsdhtlie emergency. Hbuse f'IMti accen determinate = h~the... y sata strict requirements for grantingc.uw
.-- emergency accans.andsemos tot.w'* Internizind'. Insular,AfIdirsEcpoKori, ,.
regullita.conditl^n b' mustba met.in- dia M encouragg potentialrequestorg.to seekd W h h.h order for a.requestortoba.eligibla.for. , other means,for. resolving thalproblems .r be condilloned.on'tlia.ia-- .
Compact,s. acting.. .
emergency l access consideration 4s that.
created by. denial of.acoess rto LLW w. ': in ac-d with the provisionsof.thaAct-the requestor has already bean denied o. disposal facilitiesiThe proposed, rule ., if the Compact refuses totprovide .under access to the 11W disposal sites by the. places the burden on the party its own authorities,. emergency access States or Cornpacts.wida operating: requesting emergener acces* toU '
under Section 0.. Congressional; disposal. facilities,. implicit in any demonstrate that the criterih in the rule- ratification of that Compact would be decision to grant emergency access is have been met and mnergency. access is null and void. ILR. REP. Noa314199th the iact that such a decision.will. needed. Applicants for emergency Cong.,1st.Sess pt.1, at1997 (1985).
I 67580 Federal Register / Vol. 52, No. 240 / Tuesday December 15, 1987 / Proposed Rules provision of the Act (section 5(c)(5)]. procedures that must be followed by a IV. NRC Approach person seeking a Commission This means that NRC does not intend to in developing the proposed rule, the consider requests for emergency access determmation on emergency access.
Specifically, Subpart B requires th
{
fw wastes generated by commercial
- A sI t t i f tl e principal nuclear p wa staHons as a muh of t
provisions of Section 6 of the Act are unusual r unexpected operating, subnussion for access to RWofdisposalinfonnationsites, t on Se {te addressed in the regulation. mamtenance, repair or safety activit,es. i quantity and type of matenal requiring !
~
Section 5(c)[5] of the Act specifically disposal, impacts on health and safety -
ce tif c t s t at i i t sets asde M000 cu. ft. of disposal or common defense and security if submitted with any request for capacity above the regular reactor emergency access were not granted, and emergency access in order for NRC t allocations thrcagh 1992 to be used for consideration of available alternatives J make the necessary determmations. those wastes With this space reserved to emergency access." Itis information
- 8 ""D" ""U N O"""
crite t at te (sta is 1in 10 F volumes allocation.,fNRC believes determine:
part m can be implementedicwithin t,R
. emergency access should be reserved (a) Whether a s'erious and immediate 45-day period specified in the Act. for other RW, until the 800,000 cu. ft threat to the public health and safety or
- 4. Establish procedures and criteria allocation is exceeded. the common defense and security might for designating a site to receive the NRC considered basing its decisions ex st' ' -
waste which are fair and equitable and for granting emergency access solely on (b) Whether alternatives exist that /
which are consistent with the other could mitigate the thmat, and - 1 provisions of the Act including the limits quantitative criteria, but decided (c) againstat approach.
Which non-Federal disposal While NRC1 has on the amount of waste that can be some of the wastes and the scenarios facility or facilities should provide the disposed of at each operating facility. which would create a need for ; tred' -
- 5. Establish requirements for granting emergency access,it is unlikely that all di[, sal reddition to the above ubpart B E *'
- n pdcer als sets forth pmoedures for the filing Not todIs oura8e he u sItefStates "$ d {the "
and regions from viewing emergency u certaintyass clate i i entifying ~ , on dete lo I pro ides t of the r own sp sal pability, ay be requ d NRC I T ppcanonin se hderaMe@ of u e nc ces a notice of receipt of a request for and yet flexible enough to allow NRC to has avoided establishing criteria with emergmy amss to infonn t e pu ic respond appropriately in cituations absolute thresholds. Instead, the rule as that Commission action on the request s where emergency access is genuinely proposed contahis a combination of pendmg. Even though comment is not needed to protect the public health and qualitative and quantitative criteria with '
et or the common defense and generic applicability. NRC believes this A inist at ve ed re Act,Subpart Y- combination provides NRC maximum B provides for a 10-day public comment V. Assumptions flexibility m considering requests for period on the request for emergency in developing the rule NRC made [meygmy amss on a cas@can access.
asis.
In the event that the case for -
l several assumptions. These assumptions VI.The proposed Action requesting emergency access is to be are discussed below.
% NRC staff are assuming that the based toti.Ily or in part on the threat j The proposed rule contains three .
wastes requiring disposal under the posed to the common defense and Subparts. A. B, and C. These subparts emergency access provision will be the security, Subpart B requires that a i
set out the requirements and procedures statement of support from the result of unusual circumstances.The, to be followed in requesting emergency nature of routine RW management is access and in determining whether or Department of Energy (DOE) or the such that it is difficult to conceive of Department of Defense (DOD)(as not requests should be granted.Each situations where denial of access to appropriate) be submitted as part of the subpart is summarized and discussed initial request for emergency access. If disposal would create a serious and here.
immediate threat to the public health the request is based entirely on common and safety or the national security,in SubpartA-Cenem/Pmvisions defense and security concerns. NRC will most cases generators should be able to Subpart A contains the purpose and . not proceed with the emergency access evaluation until the statement of support i
safely store routinely generated RW or scope of the rule, definitions, #
l employ other options for managing the instructions for communications with is submitted.
waste without requiring emergency . the Commission, and provisions relating Subpart C-issu'ance of)rN$mmission j
access. Thus, if all the RW generators m. . -
in a State were denied access to RW .< to interpretations of the rule.Subpart i Astates that the rule applies to all p disposal facilities, NRC staff would not as defined by this regulation who have - . For the NRC to grant emergency
,' access, the Commissiounust first expect to receive a blanket request for , 3 been denied access to existing ' .
3 r
emergency access for all of the RW . commercial EW dispostl facilities and - conclude thetah(sys aerious and generated in that State, or for all of the who subasit a request to the Commission . immediate thm'at (o11#p6blic health RW generated by a'particular kind of ' . for an emergency access determination - and safety or'thijoommon' defense and a.' security and second that there are no generator since the need for emergency undersection6of thelow-level access would be different in each case. N Radioactive Waste Policy Amendments .- available' mitigating' alternatives.-
fr preparing the rule.NRC has also Act of 1985.' *
, . a' . Subpart C sets out the procedures to be assumed that requests for emergency 3 ..
followed by the Commission in Subpart B-Requestfora Commissm.n considering rei luests for c'mergency accesa will not be made for wastes which would otherwise qualify for Deterrmnoten c access, for grantingextensions of disposal by the Department of Energy Subpart B specifies the information emergency acessa,and for granting that must be submitted and the temporary emergency access; (DOE) under the unusual volumes
[ rederal Register / Vol. 52, No. 240 /. Tuesday. December 15, 1987 / Proposed Rules 47581 52 Q h .mtablishes the criteria and standards to economically beyond the capabihty of in snaking a determination regarding a
$ 1,c used by the Commission in makmg the requestor, or because the alternative request for an extension of emergr-ncy 4 those determinations: and specifies the could not be implemented in a timely access. Subpart C provides that the di pmtedores to be followed in ist uing t hem m.umer. Cmnmission wal consides whether the
$ Subpart C pmvides that NRC. in nuking the determination that there is a Of parti:;ular concern to Congress was circumstances still warrant emergency the possibility that cea, sing the activity access and whether the person making responsible for generating the waste the request has diligently acted during N.i wrious and immediate thicat to the could lead to the cessation or the period of the initial grant to k pubbe health and safety, will consider: curtailment of essential medical g 4 climinate the need for emergency n) The nature and extent of the services. In the proposed rule. the access.
radiation hazard that would result frorn Commission considers the impact on in making a determination that the denial of access including medical services from ceasing the
,. g!- temporary emergency access is consideration of the standards for activity in making its determination that necessary the Commission will have to
- radiation protection contained in to CFR there is a serious and immediate threat consider whether the emergency access f part 20 any standards. governing the- to the public health and safety under situation falls within the criteria and i" release of radioactive mateials to the it 02.25. Ilowever, the Commission is examples in the Commission's policy general. environment that are applicable also concerned as to whether the statement on abnormal occurrences, but c to the facility that generated the low- implementation of other alternatives level waste, and any other Commission will not have to reach a determination may have a disruptive effect on regarding mitigating alternatives.
requirementsspecifically applicable to essential; medical services. The g the facility or activity which is the Commission specifically requests VIL Rationale for Criteria J subject of.the emergencyraccess mquest information on these impacts in E 62.12 The pmposed-mleestab!!shes the-and. (2) the extent to.which. essential so tlicy can be considered'ih Its.overall criteria.formaking the emergency-services such as mulimt, therapeutic,. determination about' reasonable diagnostic,.or research activities will be access determinations.requimd by'the-alternatives. Act. The ra tionale forthese decisions is disrupted.bythedenial of emergency According to the procedures setout in discussed below:. ' M-
- o. access.
Subpart C, the Commission.will only y, in making.the determination that there make an affirmative determination on (a) Determination Dot o.SeriousEond t4 immediole DmotExistsi is a serious and hnmediate threat in the- granting emergency access if the
.p common defense and security, Subpart available alternatives are found to be Establishing the criteria.to be used in 3 C provides that the Commission will unreasonable. If an alternative is determining that a serious and consider whether the activity generating determined by NRC to be reasonable, immediate th est exist to the public-
.'. the RW is necessary to the protection then the request for emergency access 1 health and safety orthe common-of the common defense and security and will be denied.
i whether the lack of access to a disposal defense and secur'ty is key to NRC's
- site would resultin a significant If the Commission determines that decisions to grant emergency act.ess.
disruption in that' activity that would there is a serious and immediate threat Neither the Act nor its legislative history to the public health and safety or the provide elaboration.regarding seriously threaten the common defense common defense and security which Congressionalintent forwhat would and security. Subpart C also specifies cannot be mitigated by any alternative 4; that the Commission.will consider DOD constitute "a serious and immediate
, and DOE viawpoints in a statement-of- then the Commission will decide which threat."
' - operating non-Federal LLW disposaf (1) To the Public heahh and safety-support to be filed with the request for facility should receive the LLW 9 cmergency access, The criteria in the proposed rule for-approved foremergency access determining whether a serious and
{. Under Subpart C. if the Commission disposal
.; makes either of the above immediate threat to the public health determinations in the affirmative, then Subpart C sets out that in des?nating and safety exists address thme e
a disposal facility or facilities to provide situations..Section 62.25(b)(i) addresses the Commission will consider whether emergency access disposal. the y alternatives to emergency access are the situation where the lack of access y available to the requestor. The Commission will first consider whether a facility should be excluded from would result in a -adiation hazard at the 4 Commission will consider whether the facility that is generating the LLW:
9 person submitting the request has- consideration because:(1)The LLW Section 62.25(b)(ii) addresses the-does not meet the license criteria for the situation where the threat to public identified and evaluated the altematives site;(2) the disposal facility meets or health and safety wouldresult imm available which.could potentially- exceeds its capacity limitations as set mitigate the noe 1,for emergency. access. disruption of the activity that: generates
)
out in the Act:(3)gruntingemergency' the waste for exampleean' essential .
b The Commission.will considerwhether- access would' delay the' planned closing e
x the person requesting emergency access. of the facility or(4)the volume of the- medical-service .Section:82:25(c)! - )
- addresses:the criteriseforgranting" has consideredialyactorainithe ., t. waste requiring disposaf excoeds 2tt ' {
evaluationiofiahernativesincludinge o percent of the tot'a lvolbme oft the LLW- temporary as -M accesst. " " c . l state ef,the ert' technology and:the: Ai , accepted fordisposal!at:the site in the- Theoriteria Imthe pmposedrult forN determiningwhethera'seriousrandn A 1
Irnpactsiof theahematives.orrthepublic: previous calemfwyear.Iftiie' . -
immediate threst'ttr the public healthe f' health and safety. Focencinalternatinea . designationcannot bemade on1 these* 3 the Commissiore willalsoconsidee , ' and safetyvxists is qosittative in nature- 1
<' factors.aloneethen'the Commission will' in order to provide.the Commission with. l whether the requestor has<!amonstrated- considerthe typeof waste, previous the flexibilitynecessaryttyconsidera '
that the implementation:of the . . l
.;, disposalpractices, transportation wide range of potential factual? -
alternative is unreasonable because ofi requirements.. radiological effects; site !
adverse effects,an the public health and situations. However;in making this' capability forhandling the waste, and qualitative determination, the criteria-4.1 safety or the common defense and-any otherinformation the Commission require the Commission toconsider security, because it is technically or. deems necessary.
5everal existing quantitative standards.
I
{
d L
l 9
r 47582 Federal Re;;ister / Vol. 52. No. 240 / Tuesday. December 15,19s / Proposed Rules These consist of the Commission's still exist. after the facility was shut r.tandanjs for radiation protection in 10 provided to public health and nafely.
down or the activity stopped. if the low Such an event could include-Cih Part 20. any n.tandards on the level waste could not be disposed of 1. Moderate exposure to or relcaw of.
release of radioactive materials to the because of denial of access. In this radioactive matenut; nencral environment that are applicable situation, emergency access may be b the facility that generated the low 2. Major degradation of safety related needed. The Commission would equipment: or level waste. and any other Commission emphasize first. that it is extremely 3. Major deficiencies in design.
requirements specifically apphcable to unlikely that a serious and immediate the facility or activity which is the construction, use of or management threat to the public health and safety controls for licensed facilities or r.ubject of the emergency access request. wj)) ever result at the generator's facility activities.
This latter category would include from the lack of access to a disposal in deciding whether to grant lir.cnse provisions. orders, and similar facility, and second,if such a situation requirements. temporary emergency access the does exist, the Commission will move Commission will evaluate whether the The Congressional concern in immediately to eliminate the threat. emergency access situation falls within enacting section 6 of $he Act was to If the Commission does receive a the criteria in the Commission's policy ensure that a serious and immediate statement on abnormal occurrences, threat to the public health and safety did request for emergency access based on the above circumstances, the (2) To um common defense and not result imm a denial of access. In addressing this concern, the Commission will evaluate the nature 8"fi'Y-and extent of the radiation hazard. If Although NRC is required by the Act Commission will evaluate the request for emergency access, in its entirety, i.e.' there is no violation of the Commission's 80 d''*I"'. that there is either a the threat to public health and safety generic or facility-specific radiation serious and immediate threat 'to the protection standards, no serious and public health and safety,' or to "the and the attematives to emergency c mm n defense and security.
access that may be available to mitigate - imrnediate threat would exist from the that threat. In other words,in waste itself.7his is separate from a : realistically NRC cannot make the latter finding that a serious and immediate - judgment without some information determining what constitutes a serious ,
and immediate threat to public health - threat to the public health and safety from DOD and DOE which will assist '
and safety, the Commission must would exist if the activity were forced to NRC in identifying those situations involving the denial of access to LLW consider what threat would be shut down.Section 6(d)of the Act disposal which constitute a serious and unacceptable assuming that no all ws ths Commission to grant alternatives are available. In the temporary emergency access for a . immediate threat to the national defense Commission's judgment, any situation peri d not to exceed 45 days, solely and security, or the importance of a upon a finding of a serious and particular LLW generator's activities in that would result in exceeding the occupational dose limits or basic limits immediate threat to the public health maintaining those objectives. While of public exposure upon which certain NRC has the Congressional mandate for and safety. In order to grant temporary requirements in 10 CFR Part 20 are emergency access, the Commission is ,
this determination. NRC staff believe it founded would be an unacceptable necessary to consider DOD and DOE not required to evaluate the availability information as part of the decision threat to the public health and safety, of alternatives to emergency access that making process.
and should be considered for emergency would mitigate the threat.The access. Commission believes that grants of NRC considered several approaches
- N The legislative history of section 6 of temporary emergency access should be for involving DOD and DOE in the the Act does not provide any process of determining whether requests reserved for the most serious threat to for emergency access should be granted illustrations of a situation where a public health and safety, and has serious and immediate threat to the accordingly established criteria for on the basis of a serious and immediate public health and safety would be threat to the common defense and granting temporary emergency access created at the facility at which the that require the consideration of more security. It appears that the best way to waste is stored, although it is clear that provide such interaction would be to serious events. For purposes of granting require that requests filed with NRC for Congress was concerned over the temporary emergency access under emergency access which are made potential radiation hazard that might i 62.23. the Commission will consider result at a particular facility that was entirely, or in significant part, on the the criteria and examples contained in denied access to LLW disposal. The the Commission's Policy Statement for basis of a serious and immediate threat Commission does not anticipate any determining whether an event at a to the common defense and security.
should include appropriate certification situation where the lack of access would facility or activity licensed or otherwise create a serious and immediate threat to regulated by the Commission is an from DOE or DOD substantiating the z requestor's claim that such a threat will the public health and safety. However, abnormal occurrence within the purview result if emergency access is not in order to be able to respond to the of section 208 of the Energy. . ;
unlikely, but still possible, situation . granted. The necessary certification in (
Reorganization Act of1974. (45 FR the form of a statement of support where a serious threat to the public health and safety might result, the 10950, February 24,1977.) This provisionf should be acquired bpahe requestor proposed rule establishes criteria to; a requires the Commission to keep me a prior to applyingth NRC for emergency Congress 'and the pub!!c informed of .h address this possibility. Under its - access so the certification can be a part unscheduled incidents or events which of the actualpstitiorifip normal regulatory responsibilities and .a the Commission considers significant authority, the Commission would act - Congress deliberately gave t he NRC from the standpoint of public health and the responsib111tffor making the immediately to prevent or mitigate any - safety, Under the criteria established in common deferis' e and security threat to the public health and safety, j the Commission's policy statement, an determinationiather than leaving the including shutting down the facility, ;
event willbe considered an abnormal determinatiori with DOD or DOE. So ;
flowever, there may be circumstances occurrence ifit involves a major where a potential safety problem would while the Comndssionintends to give reduction in the degree of protection the DOD 'and DOE certifications and '
i
s k
g { l'ederal Register / Vol. 52 No. 240 / Tuesday, December 15, 1937 / Proposed Rules 47583 3 _ _
. j recommendahons fun consideration in otherwise' be eligible for, disposal under pract; cal, attempt to distribute the waste j cvcluatmg iequests for emergency the unusual volumes provision, will be as equitably as possible among the a ccess, the Commir.sion will not 1: cat denied. cvaila ble operating. non. Federal or ibem as com lusive. - Another alternative ap;)lics only to regional LLW disposal facflities. To the
//,/ /Wenninction en Mitigotmg l'ederal or defense related generators of extent practicable, NRC intends to A/tcinatives 11W. NRC will expect that generators of rotate the designation of the receiving LLW falling into either of these site, and, for the three currently l] As directed by Section 6 of the Act. categories will attempt to arrange for operating facilitics, to allocate 1 even if a situation exists which poses a disposal at a Federal LLW disposal emergency ocuss disposal in proportion yl i
serious and immediate threat to the facility prior to requesting access to to the volume limitations established in public health and safety or the common non. Federal facilities under the the Act. In most cases, NRC would
.j$ defense and security, emergency access emergency access provision.
e is not to be granted if alternatives are expect that the designation of a single
[;/ For all the alternatives that are site will minimize handling of and availabic to mitigate the threat in a considered, NRC is requiring detailed exposure to the waste and best serve manner consistent with the public health information from the generator the interest of protecting the public j and safety. As proposed in the rule, regarding the decision process leading requestors for emergency access will health and safety.llowever. if the to a request for emergency access. The volume of waste requiring emergency i' have to demonstrate that they have requestor will be expected to X explored the alternatives available and access disposal is large, or if there are l
?
demonstrate that he has considered all other unusual or extenuating that the only course of action remaining pertinent eltematives and to provide a 4 la emergency access. Only after this has circumstances, NRC will evaluate the detailed analysis comparing all of the
,.j been demonstrated to NRC will the alternatives considered The requestor advantages and disadvantages of designating more than onesite to .
Agency proceed with a grant of will be expected to demonstrate that he l f emergency access. . receive waste from the same requestor. I has considered combining alternatives
- ,. Alternatives which, at a minimum, a in some way or in some sequence either in addition to the above. NRC will - l
- l requestor will have to evaluate are set also consider how much waste.has been - l to avoid the need for emergency access, g out in section 0(c)(1)(B) of the ActiThey or to resolve the threat, even on a designated for emergency' access .. . !
q include (1) storage of LLW at the site of temporary basis, until other.
disposal to each site to date (both for.
the year and overall), and whether the >
I j} generation or m a storage facility,(2) l arrangements can be made.The obtaining access to a disposal facility by requestor will be expected to evaluate serious and immediate threat posed (
,y voluntary agreement, (3) purchasing could best be mitigated by designating )
the costs, economic feasibility, and
.d disposal capacity available for benefits to the public health and safety one site or more to receive the waste. )
g assignment pursuant to section 5(c) of A
of the potential alternatives, and t In order for NRC to make the most g Uvh i p rate the results into the request. equitable site designation decisions, the T{ , g[ ""a e m L Agency will have to be wellinformed "y '
While 0(c)(1)(B) of the Act sets these (c) Designation ofSite regarding the status of disposal capacity 4- out as possible alternatis es which a generator must consider before In deciding which of the operating, f r each of the commercially operating waste disposal facilities. NRC intends to non-Federal or regional 11W disposal requesting emergency access. NRC has facilities will receive the 11W requiring arrange to obtam this information on a
) identified other possible alternatives to continuous basts. '
emergency access, NRC will determine emergency access which should be which of the disposal facilities would It should be noted that in setting ou considered, as appropriate, in any qualify under the limitations set out in the site designation provision forion sect,t requests for emergency access. These section0(h)of the Act. According to 6 Congress assumed there would
?
additional alternatives are discussed those limitations, a site would be always be a site deemed appropriate to e below. excluded from receiving access waste if receive the emergency access waste.
Section 5(c)l5)of the Act " Unusual (1) the 11W does not meet the license ilowever, this may not be the case if all Volumes " provides owners and criteria for the site; (2) the disposal sites are climinated by application of
- operators of commercial nuclear facility meets or exceeds its capacity the limitations provision set forth in the
'f reactors with special access to disposal limitations as set out in the Act;(3) Act. It is not clear what options are in the event that unusual or unexpected granting emergency access would delay available to NRC if all sites are deemed e
operating, maintenance. repair or safety the planned closing of the facility; or (4) inappropriate to receive the LLW.This activities produce quantities of waste the volume of the waste requiring rnay have to be addressed by Congress l which cannot be otherwise managed or disposal exceeds 20 percent of the total at some time in the future. ',
disposed of under the Act.NRC does not volumeof the11Wacceptedfor g consider that Congress intended that > w disposal s;t the site in the previous (d) Volume Reduction Determination w disposal under the emergency access ~ - calendar year. . .s ,. Section 0(i) of Ee Act requires., - !
provision was to apply to the section - >: If NRC cannot dbsignate a site using any 11W deliv' e red for disp,osal a,tha.
s 5(c)(5) wastes unless the capacity w" P > the limitations in the Abt'alo'ne, the , result of NRC's dec!stori to grant'j..,a p
- required for disposals under volume provision would exceed the" the uniisual" Commission will consider other factord.' emersency access *should be reduc
' including the; type of waste'.l ,i reviousml. . volume to the maximuniextent
800,000 cubic feet allocated for those' purposes.Thus, NRC has taken the "*t " disposal practicesTtransportation ..,i* practicable'."NRC will evalua e
requirements', radiological effects of the cxtent to plitch volume reductios E' ,
position in the proposed rule that as long as unusual volumes disposal waste, the capability for handling the " methods or techniques will be or.have , ,
waste at hach site, and any other been applied to the wastes granted capacity is available for 11W which information that would be necessary in~ emergency access 'in order to arrive n' a qualifies for such disposal, emergency order to'Eorne to a site designation finding in regards to this provision.
access should not be requested. decislan. ~ NRC may receive a request for Applications for emergency access for Within the requirements of the above emergency access where the application wastes which NRC determines would criteria, the NRC will, to the extent of volume reduction techniques may bc k
475M Federal Register / Vol. 52. No. 240 / Tuesday. December 15, 1937 / Proposed Rules r,ufficient to mitigate the threat posed to . for designating the receiving site? and XI. Paperwork Reduction Act Statement the public health and safety. As n result, NitC plans to evaluate the extent to (5) What should NRC do if no site is found to be suitable for waste reqmrm.s- This proposed rule adds information which waste has been reduced in emergency access? collection requirements that are subject volume as a part of its rnandated 10 the paperwork Reduction Act of 1960 evaluation of the alternatives NRC is interested in facts and (4. U.S.C. 3501 et seq.). This rule has considered by the generator. From that recommendations evaluation, the NitC could reach a responsive to these on specific issues. Whileways NitCto be been submitted for review and approvul of the paperwork requirements, hndmg on whether the waste has I cen will consider all comments on the proposed rule, it will be better able to - XIL Regulatory Analys.is reduced in a manner consistent with respond to those comments that section 0(i)- %c Commission has prepared a draft As is so for the other determinations recommend specific solutions to any regulatory analysis of the proposed NRC will have to make pursuant to pmblem raised by the commenters regulations.The analysis examines the section 0, volume reduction IX. Requests for Emergency Access costs and benefits of the alternatives determinations will be made on a case. Made Prior to the Effective Date of th considered by the Commission.The by-case basis.ne optimal level of Rule draft analyslais available for inspection, volume reduction will vary with the copying for a fee,,at the NRC Public waste, the conditions under which it is in setting the schedule for this rule.
Document Room.172711 Street NW.
the Commission has tded to anticipate - Washington DC20555s n s ra$v og tio s allable, e'nd whether volume reduction processing fh I nalrul w d i place befom *D " "
creates new wastes requiring treatment that time, liowever, it may be necessary NRC is using this proposed rule to or disposal. In evaluating whether the for a generator or State to submit a implement the statutory requirements wastes proposed foremersency access request for a Commiasion emergency for granting emergency dt: cess .to non.- .. ,
have been reduced in volume to the ' ~ access determination prior to the, Federal or mglonall1Wdisposalm4 .
maximum extent practical?e, NRC will ellective date of this rule. Commission determinations made on requests facilities under section 6 of the Act m consider the charactenstics of the - Based upon the information available. :
wastes (including: Physical properb.es, received before the final rule is in place and inaccordance with the Regulator chemical properties, radioactivity, will be guided by the' criteria and " Flexibility Act. S U.S.C. 605(b). the .,y.
pathogenicity, infectiousness, and procedures provided in this propdsed
- Commission certifies that,if
toxicity, pyrophoncity, and explosive .
rule. promulgated.this rule will not have a potential): condition of current significant economic impact upon a .
X. Finding of No Significant container, potential for contaminating Environmental substantial number of small entities.
the disposal site: the technologies or The proposed rule has the potential to combmation of technologies available 1mpact;/tvo#ab#ity affect any generator of1.1.W as well as for treatment of the waste (including any existing 11W disposal facility. None incmcrators: evapora tors-crystalh,ters; If adopted, the proposed rule would establish criteda and procedures for a of the 11W disposal facilities would be fluidized bed dryers; thin-film evaporators; extruders evaporators; and Commission determination under considered to be a small entity.The Compactors); the smtability of volume section 6 of the Act that emergscy generators of11W are nuclear power g te uction equipment to the access to an operating non-Federal 11W plants, medical and academic facilities.
circumstances (specific activity disposal facility is necessary to' avert a industrial licensees. research and .
serious and immediate threat to the devel ment facilitics, considerations, actual volume reduction .
factors. generation public health and safety or the commori radiop armaceutical manufacturers, fuel ry wastes, equipment contamm,of a tion,secon e ent defense and security. For the most part* fabrication facilities and go'vernment the proposed rule is an administrative licensees. Of these categories, all but the e i en ava la 1 y) n the tion which serves to codify the . power plants, fuel fabrication facilities.
and government licensees could administrative controls which could be e Act.The EIg* critm,a and pmcedes adoption of such implemen in @tmg potentially include srnali entities.
procedures and critena by promulgation Although these categories may Vill. Specific Request for Comments contain a " substantial number of small of a final rule does not have an NRCis interested in receiving enimnmental effect. entities," the Commission does not comments on those parts of the . Therefore, the Commission has believe there willbea significant i proposed rule where NRC applied its economicimpact to these generators determined under the National .
discretion in order to implement the , Environmental Policy Act of 1909, as because the Commission does not . . I section G proviatons. NRC specifically _. amended, and the Commission's .. - anticipate that many Beneratom will be - 1 requesta comments on theinflowing:(1) regulations in Subpart A of 10 CFR PaEt . affectedby theproposed rule In order 4 i What scenados are envisionedwhere . , 51, that this p,roposed rule;if adopted . , for the requirassenta o(the rala imposed on a;genesetee.the gemaratoca y
~
1 emergency, access ivould be required!T.m. would not be.a ma(or Fedpr:51 acttoau,3 himself amusunitin I NRC's approac!tto datennlaingan.p'[2) significant! sffecting What are the Jhc.gua!Ily potentint of thth .requestinga probicms witg; human grant alennergency accesshe entsand.there,Iarslan..g froro WRCUThisiwomhtaccuroaly.M L immediate and scrioua threat tolha environmental pr,ctstatemenl -
l' pubilehealthand safety 1(3)WhataQ.
~
j2 required.%.%$@MS,inint7p, i
.Ksu becautelbesenetolothaabeendeniedw accesatellWJiisposal; > w mi the potentialproblema arra ngement proposed for makingwilltthe,'.; the' ../.' formlThe endreamentalassessmenb; ag thebasta for this determination c
, e to make ~
The Cossaiselemis tequired determination of serious and immediate emergenes.acoess determinations by- i threat to thecommon defense and ,4 i is contalaadin tbndraft regulatory.... - , statuta. Since a grant of emergency "
analysis prepared for this proposed f s'ecurityt (4) What are the potential ~ ' . - regulab'on.The availability of theaccess draft .is intended to correct the :
problamellW generatom may -
difficulties with the proposed approach regulatory analysia is noted below. .
encounaer becauseoflack of access to
% Federal Register / Vol. 52, No. 240 / Tuesday. December 15.19c7 / Prc. posed Rules 475c5 y . . _
t.l.W disposal, the provision of The comments should be sent to the m s at.1 3 2.1240. an amended (42 (LS C.
T'f r . mergency access uil! b<mefit any Secretary of the Comnussion, tI.S. N S319 5" 3 0 5 8 99 **8- ** 1"4 C
.S gnera'or of I.I.W includirg rmall Nuclear Regalatory Cmmnission.
- 1" M
- 7.1
- 1" " 1 0 9 1"l 1"52-h conlic ,
' Washington. DC 20535. Attention:
[d it j '"'
I stablia.hing criteria and procedures IJocketing and Service 11rcnch.
&) j far requesting and granting emergency x
access through a rule wdl also 1,enefit I.ist of Subjects in 10 CFR Part 62 Sut: port A-General Frovisions E( small und large generators. The Administrative practice and f 62.1 Porpose and scope.
? proposed rule provides guidance 10 the procedure. Low-level radioactive waste. (a) The regulations in this part v mnerator on what information will be Nuclear materials, LLW treatment and estcb!ish fer specific low-level Et r.. quired for making requests for dispesal. Emergency access to low-level radinective waste, il emergency access and provides an waste disposal, Low-level radioactive (1) Procedures and criteria for
,# ordedy framework for making those waste policy amendments act of 19G5. granting emergency access under
,,,' requcats. Also, the proposed rule will Denialof Access section 6 of the Low. Level Radioactive enable generators to better plan to avoid Weste policy Amendments Act of1965 1.LW disposal access problems, thus For the reasons set out in tb'c (42 U.S.C. 2021) to any non-Federal or
[ providing the certainty required for preamble and under the authority of the cconomic growth and development. Atomic Energy Act of 1954, as amended. regional low-level radioactive waste l
- the Energy Reorganization Act of 1974 (LLW) disposal facility or to any non- j The impact of the recordkeeping Federal disposal facility within a State requirements on any affected licensees as amended, and the low-Level ,
i' < should be minimal since the information Radioactive Waste Policy Amendments . that is not a member of a Compact, and (2) The terms and condi lons upon Act of 198'i. notice is hereby given that /
that must be provided if a' generator _ which the Commission wi[i grant this !
requests emergency access would most adoption of a new 10 CFR Part 62 is ' k h;% likely be collected and assembled as contemplated. . 'h emergency access. {
l D part of any process to decide a course of 1. A new Part 62 is proposed to be (b) The regulations in this part apply i p.
$ action if necessary access to LLW added to 10 CFR to read as follows: to all persons as defined by this regulation, who have been denied disposal was not going to be available* ~ PART62-CRITERIA AND' q{ The NRC is seeking public comment PROCEDURES FOR EMERGENCY access to existing regional or non-Federal low. level radioactive waste j
h on the initial regulatory flexibility disposal facilities and who submit a j unalysis.*lhe NRC is particularly ACCESS TO NON-FEDERAL REGIONAL LOW-LEVEL WASTE AND request to the Commission for a
/ seeking comment imm small entities (i.e., small businesses, small DISPOSAL FACILITIES determination pursuant to this part.
i f organizations, and small jurisdictions, Subpart A--General Provision; { 62 2 Definfilons.
l '-
u under the Regulatory Flexibility Act) as % As used this part: 1 to how the regulations will nIfect them 62.1 Purpose and scope. "Act" means the Low-Level J und how the regulations may be tiered c2.2 Definitions. Radioactive Waste Policy Amendments
( or otherwise modified to in: pose less 62.3 Conunumcations.' Act of 1935 (pub. L 99-240).
t stringent requirements on small entities c2.1 Interpretations.
- d. while still adequately protecting the c2.s Information collection requirements.
" Agreement State" means a State that-1 public health and safety. Those small "8 ' SP"fiC "***P'l "8* (A)lias entered into an agreement j entities which offer comments on how..
~
Subpart B-Flequest for a Commission with the Nuclear Regulatory '
y the regulation could be modified to take Determination ;
} into account the differing needs of small Commission under section 274 of the j nu Filing and distribution of a Atomic Energy Act of 1954 (42 U.S.C.
.y eatities should specifically discuss the detennination request.
following items: 2021); and
[ 62.12 Contents of a request for emergency (H) lies authority to regulate the (a) The size of their business and how access: General information.
' ,"k the proposed regulations would result in E13 Conteds of a request for emmency disposal of low. level radioactive waste
)
- CC
- under such ogreement.
(f s
a significant economic burden upon them as compared to larger gg Cn sI q est for an extension " Commission" means the Nuclear of emergency accese. Regulatory Commission orits duly
,Q organizations in the same business cis Additionalinformation. authorized representatives.
,o community. .
6 Rio Withdrawalof a determination " Compact"means a Compact entered (b)llow the proposed regulations request,.
. . . . into by two or more States pursuant to ..
could be modified to take into account . c2.17 PJimin~ a tion of rep
.: the Low-Level Radioactive Waste Policy Q
their diffe' ring needs or capabilities.; ' r , c2.to Denialjf reques't. -
.. i .w
],etitionC)
- g. $ l Amendments Act of1985.1 ,. .
(c) The benefits that would accrue, ore subpart C-tssuance of a commission - .- " Compact Commission" means the . -
j' ' the detriments that wduld be evolded, if i-the proposed regulations,were.modifiede 62d1 Determinauon,,,j, y Qy,i,.,,.du,:4 regionalcommission.committeca>r, w
, - as suggested by the commenten,, .nina . Determination for granting emergency. r board established in a , Compact, toy.c sy m:,
, (d) Ilow the proposed regulations, as 'q c2.22 < 5 access., gaf sm,,f Notice.ofissuance o a determination. "e administersuchCompact. , gr, m ,f
~
. " Emergency Access",m~eans aci.ess 107 modified, the impact ofwould morg closely NRC regulations equalize or create' a ,. c2.23
. . emergency ac. Determinat/gn cess. ~
fggranting gmporsty .o an operating n' n-Federat or reg more equal access to the benefits of ., 1. ; n2 te o,n e L.
n . ' eccegs' " -low-level radioactive waste disposal .I. ' I
~ w;
, Federal programs as opposed to , , ' facility or facilities for a period not to providing special advantages to any , . - detennination. < M. -
exceed 180 days, which is granted by' individuals or groups- 62.26 <. Criteria for designating a disposal . NRC to a generator of low-level-
' . . . . facility. n , radioactive waste who has been denied
,I (c)llow the proposed regulations, as -
Authority: Secs. 81.101, as amended. ca the use of those facilities.
/ ! modified would still adequately protect Stat. 935,948. 949. 950. 951, as amended. (42
,j the public health and safety. " Extension of Emergency Access" U.s.C. 2111. 2201): accs. ::01. 209, as arnended a means an extension of the access that w
h N
s .5
f '
l 47586 Federal Register / Vol. 52, No; 240 / Tuesday, December 15; 1987 / Proposed Rules had been previously granted by NRC to a written interpretation by the Cencral (c) Fees applicable to a request for a Commission deternunation under this J
an operating nonTederal or regional . Counsel will be considered binding on i low-level radioactive waste disposal the Commission. part will be determined in accordance i f acility or facihties for a period not to with the procedures set forth'for special t 62.5 Information couection i emeed 180 days. projects und?r category 12 of i 170.31 of "1.ow.1,evel' Radioactive Waste" requirements. this chapter.
(11W) (neans radioactive material that This proposed rule contains (d) In the event that the allocations or
( A) is not high-level radioactive waste, information collection requirements that limitations established in sections 5(b) l e, pent nuclear fuel, or byproduct material are subject to the paperwork Reduction or 0(h) of the Act are met at all j Act of 1980 (44 U.S.C. 3501 et seq.). The opera ting non-Federal or regional 11W I (as defined in section 11e(2) of the Atomic Energy Act of 1954 lU.S.C. Nuclear Regulatory Commission has disposal facilities, the Commission may 1 2014(e)(2)); and (D) the NRC. consistent submitted the information collection suspend the processing or acceptance of (
with existing law and in accordance requirements contamed in this part to requests for emergency access with paragraph (A), classifies as low, the Office of Management and Budget determinations until additional 11W i level radioactive waste. ,
(OMD) for review and approval of the disposal capacity is authorizedby I "Non. Federal Disposal Facility" paperwork requirements. Congress. , (
C 62.6 Specific esemptions. I 62.12 Contents of a regwest for
[i al facu y c s c n me aHy
' decommission may, upon emergency access:hunN ;
operated or is operated by a State.
" person" means any individual. application of any interested person or A request for a Commission j upon its own initiative, grant an determination under this part m6st I corporation. partnership.
association, trust, State publicfirm. 'or ; , exemption.from the requirements of the. include the following information for private institution, group or agency who regulations in this part that it determines each generator to whicittbe request f is an NRC or NRC Agreement State. is authorized by law and will not . - applies- '
'""M?'+
licensed generator oflow-level . , , endanger Ilfe or property or the cannon (a)Name'en'd addres's of thee radioactive waste; any Governor (or for defense and security and is otherwise in making the re'questC 2; C :pirson.
.. I l
any " State" without a Governor, the the public interest.z 7. n ' (b) Name and address of the person (s) chief executive officer of the " State") on Subpart B-Reqv' est for~aC' o'm$ission r company (ics) generating the low-level behalf of any generator or generators of radioactive waste for which the .
Determination determinations soughtt Iow level radioactive waste locried m his or her " State"; or their duly $ 62.11 Filing and distribution et a (c) The low-level waste geberation authorized representative, legal determination request. facility (ies) producing the waste for successor or agent. (a) The person submitting a request which the request is being made:.
- Regional Disposal Facility" means a for a Commission determination must (d) A description of the activity that non-Federallow. level radioactive waste file a signed original and nine copies of generated the waste; disposal facility in operation on January the request with the Commission at the (e) Name of the disposal facility or 1,1985, or subsequently established and address specified in i 62.3, with a copy facilities which had been receiving the 3 operated,under a Compact. also provided to the appropriate waste stream of concern before the' r
State means any State of the United Regional Administrator at the address - generator was denied access:.4 Specified in Appendix D to part 20 of (f) Adescriptionof thelow-level Co nrnon vealth uer R this chapter.The request must be signed radioactive waste forwhich emergency
" Temporary Emergency Access" by the person requesting the access is requested.includingr -
means access that is granted at NRC's determination or the person s authorized discretion upon determining that access (1) The characteristics and-is necessary because of an immediate representative under oath or affirmation. composition of the waste, including, but (b) Upon receipt of a request for a not limited to-and serious threat to the public health determination.the Secretary of the (i) Type of waste (e.g. solidified oil.
and safety or the common defense and Commission will cause to be published scintillation fluid, failed equipment):
security. Such access expires 45 days in the Federal Register a notice (ii) principal chemical composition:
~
after the granting.
acknowledging receipt of the request (iii) physical State [ solid, liquid, gas)
$ 62.3 communications, and asking that pubhc comrrents on the (iv) Type of solidification media: and Except where otherwise specified* request be submitted within to days of (v) Concentrations and percentages of each communication and report the date of the notice. A copy of the ,
request will be made available for any hazardous or toxicchemica}s c-concerning the regulations in this part ' ,
chelating agents. infectious or biolo should be addressed to the Director inspection in the Commission's Public agenta associated with thej westh,;gica, Office of Nuclear MaterialaSafetye'nd Document Room,1717 H Street NW., :
Safeguards, U.S. NucleaRRegulatory 1 2 . Washington, DC, and in the Loca!Public" . (2)The radJefogQa,1 charagtlesg, a o theweetesuch as- t.7.gp Commission, Washington,DC20555 may be deliveredinperson to the F b@r* Document Room of the facilityoph'. submitting the request.%eSec g Commission's offices at1727H Street" the Cbanissia w!!!.also transm!! a,"yg ahee W 61 ,
g,sen
,,t;,,g.
NW., Washington, DC or 7915 Distern w copy'of the reque'st-to theU.S.WA.
Avenue, Silver Sprfng. Maryland."'
y(firAlistof therad@iotmcli Department of Energy, to the Gdvernor M.or pokintia!!y pmsent in the wa -
- - ' -"' 4 ' of the State where the wastela y n ; concentration or contamination'le'vels?. t i 62.4 6nterpretatona > * * ' ' '
- generated, to the States with operating ' and total quantity; '
- PM9W"
- Except as specifically authorized by J '
non-Federellow-level radioactive waste' C (iii) Distribution of th8t'a'dto'nIE.lfdes !
the Commission in writing, no disposal facilities, and to the Compact within the waste (surface or volume 1 Interpretation of the meaning of the Commissions with operating regionat. , distribution): .
. e 'e regulations in this part by any officeror low-levet radioactive waste disposal , (iv) Amount of trans'uranics". ~
employee of the Commission other than facilities. ! (nanocuries/ gram);"
1
[ l'ederal Ret;ister / Vol. 52 No. 240 / Tuesday, December 15,1987 /- Proposed Rules 47587
./* d (3) Tbc mimmum volume of the waste 1:nergy (DOE) for access through the health and safety or the common requinng emergency access to alleviate unusual volumes allocation; N the threat to the puhhc heahh and safety (L) Where the request is made wholly defense and security; ,
m the cornmon defense and security; or in significant part on the basis of a (3) The technical and economic
]1g 14) The time duration for which feas bility of each alternative including serious and immediate threat to the the person's financial capability to emergency acccMiis requested (not to common defense and security, a h e xceed 100 days); implement the alternatives; Statement of support from DOE or DOD (L) Type of disposal container or certifying that access to disposal as (4) Any other pertinent societal costs packaging (55 g,Uon drum, box, liner, necessary to mitigate the threat to the " ""g; .
etc.). and common defense and security; (5) p g ; g 3 (0) Description of the volume (1) Date by which access is required; (6) Any legal impediments to ,
~ reduction and waste minimization . and implementation of each alternative techniques applied to the waste which (m) Any other information which the including whether the alternatives will assure that it is reduced to the maximum Commission should consider in making i extent practic~able, and the actual . Its determination.
comply with applicabic NRC regulatory requirements: and reduction in volume that occurred; (g) Basis for, requesting the 9 82.13 Contents of a request for (7)The time required to develop and
- determination set out in this part. emergency access
- Alternatives. g g including: (a) A request for emergency access (1) %e circumstances which led to the under this part must include information for; dental of access to existing low-level on alternatives to emergency access. (1) Rejecting eat.h alternative and ;
radioactive waste disposal facilities: ne request should includo a discussion (2) Concluding that no alMrnative is J
. (2) A description of the situation of the considerationgiven to all #
^ available. .,p which is responsible for creating the alternatives, including. but not lim!ted -
" '~
serious and immediate threat to the to, the following: C $ 62.14 contents'of arequestforaor Y public health and safety or the common (1) Storage oflow-levelradioactive . extension of emergeocy accesem defense and security, including the date waste at the site of generation:. ,
when the need for emergency access A request for an extension of ' -
(2) Storage of low-level radioactive emergency access must include:
was identified; waste in a licensed storage facility; (a) Updates of the information (3) A chronology and description of (3) Obtaining access to a disposal the actions taken by the person facHity by voluntary agreement; required in i 62.12 and i 62.13; and g requesting emergency access to prevent (4) Purchasing disposal capacity (b) Documentation that the generator y the need for making such a request, available for assignment pursuant to the of the low 4evel radioactive waste includmg consideration of all Act; granted emergency access and the State f alternatives set forth in i 62.13, and any (5) Requesting disposal at a Federal in which the low-level radioactive waste
} '
supporting documentation as low-level radioactive waste disposal was generated have diligently, though appropriate; facility in the case of a Federal or unsuccessfully, acted during the period (4) An explanation of the impacts 'of defense related generator of thW; of the initial grant to climinate the need c the waste on the public health and (6) Reducing the. volume of the waste; for emergency access. Documentation safety or the common defense and must include; (7) Ceasing activities that generate security if emergency access is not low-level radioactive waste; and .
granted, and the basis for concluding (1) Anidentification of additional that these impacts constitute a serious (8) Other alternatives paragraph (b)of this section. identified under alternatives that have been evaluated undimmediate threat to the public (b) The request must identify all of the during the period of the initial grant. and hordth and safety or the common alternatives to emergency access (2) A discussion of any reevaluation defense and security.The impacts to the considered and include a description of of previously considered alternatives.
public health and safety or the common the process used to identify them, ncluding verification of continued
> defense and security if the generator's including any not specified in paragraph attsopts to gain access to a disposal services, including research activitics, (a) of this section.The request should facility by voluntary agreement.
were to be curtailed, either for a limited also include a description of the factors period of time or indefinitely, should { 62.15 Additionalinformation.
that were considered in identifying and also be addressed; (a) The Commission may require evaluating alternatives, a chronology of 4 (5) Other consequences ,f i emergency actions taken to identify and implement additionalinformation from a person . i access is not antodr allematives during the process, and a making a request for a Commissions l
, (h) Steps ta en by the person 3 discussionof any actions that were : determination underthis.part '
requesting emergency access to correct - considered,but not implemented. : concemi.ri &an.y po.r. tion of th. e .leM e.i (c).The evaluation of each alternahve . . . (blueCommiaslow,rshall deng a. ,,,t,/
e ,,
the situation requirin8 emergency access ;
[' and the person's plan to climinata the % ruust consider:. , . - '. , ;;u reque,si for a'Commisalordetermination g
,, s s need for additionalon; future emergency.;, (1)Its potential for mitigating the l accesa requesta;.., ,,, , . .. . n. under thhtpartif the pctson maklag the 4 (
requestfallatanes
~
(
serious and immediate threat topublic < (
(i) Documentation certifying that..: . ,... health and safetybi the'commony 0 + additional.in!" 6.under pond taa reques.t[or, paragraph 4 access has beendeniedn , . , ,. 6 defense and securityposed bylack of.
(a) of this section.withhiten (10) dayst,.3 L (1) Documentation that the waste for' laccess todisposalz which emergency access is requested '
from thedate of the request for . 2 (2) The advene effecta on public additionalinformation, or any otherm
- could not otherwise. qualify for disposal health and safety and the common ;
pursuant to the Unusual Volumca time as the Commission may specify.- .
defense and security,11 any, of -
This denial will not prejudice the right of-provision (section 5(c)(5) of the Act) or y is not simultaneously under implementing each alternative. including the person making the request to file.
the curtailment or cessation of any another request for a Commission :
consideration by the Department of essential services affecting the public determination under this part.
7 47538 Federal Register / Vol. 52, No. 240 / Tucsday, December 15, 1937 / Proposed Rules
! 62.16 Withdrawa! of a determination radioactive waste as to source. physical (c) The temporary emergency access request. and radiological characteristics, and the duration will not exceed forty-five (0)
(a) A person may withdraw a rerpiest minimum volume and duration (not to days. ,
Io. a Commisraon determination under exceed 100 days) necessary to alleviate 62.24 0stension of emergency access.
this part without prejudice at any time the immediate threat to public health prior to the issu;mce of an initial and safety or the common defense and (a) After the receipt of a request from determination under 102.21. security. It may also contain conditions any generator of low-level waste, or any (b) The Secretary of the Commir.sion upon which the determination is Governor on behalf of any generator or will cause to be published in the Federal dependent 8'""".tms in his or her State, for an Register a notice of the withdrawal of a extension of emergency access that was request for a Commission determination g 62.22 Notice ofissuance of a initially granted under i 62.21, the under this part. determination. Commission shall make an initial (a) Upon the issuance of a determination of whether- .
{ 62~17 Olmination of repetition' (1) Emergency access continues to be in any request under this part, the Commission determination the Secretary of the Commission tvill make necessary because of an immediate and person making the request may serious threat to the public health and incorporate by referer.cc information notification of the final determination in j writing, to the person making the safety w the common defense and contamed in a previous application, security-Statement, or report filed with the request, ti e Governor of the State in (2) Th'e threat cannot be mitigated by Commission provided that these which the low-level radioactive waste ;
references are updated, clear and requiring emergency access was generated, and the Governor of the State p g g gY;g -
specific. (3) The generator oflow-level waste
~ in which the designated disposal facility 9 62.18 Dental of request. is located, and if pertinent, the , and the State have dihgently though -
If a request for a determination is appropriate Compact Commission, of unsuccessfully acted during the period.
based on circumstances that are too of the initial grant to eliminate the need the final determination.For the remote and speculative to allow an Governor of the State in which the fw emagency access.
Informed determination, the designated disposal facility is located (b) After making a determination ,
Commission may deny the request ' and for the appropriate Compact pursuant to paragraph (a) of this section,-
Commission, the notification must set . the requirements specified in il 62.21 (c)
Subpart C-Issuance of a Comm.ission forth the reasons that emergency access and (d) and 62.22, must be followed.
Determination was granted and specifically describe i 62.25 Criterta for a Commission f 62.21 Determination for granting the low-level radioactive waste as to determination.
emergency access. source, physical and radiological (a)In making the determination (a) Not later than (45) days after the characteristics, and the minimum required by 0 62.21(a) of this part, the receipt of a request for a Commission volume and duration (not to exceed 180 Commission will determine whether the determination under this part from any days) necessary to alleviate the circumstances described in the request generator of low-level radioactive immediate and serious threat to public for emergency access create a serious v waste, or any Governor on behalf of any health and safety or the common and immediate threat to the public generator or generators located in his or defense and security. For the Governor health and safety or the common her State, the Commission shall make a of the State in which the low. level waste defense and security.
determination that- was generated, the notification must (b)In making the determination that a (1) Emergency access to a regional indicate that no extension of emergency serious and immediate threat exists to disposal facility or a non-Federal access will be granted under i 62.24 the public health and safety, the disposal facility within a State that is absent diligent State and generator Commission will consider.
not a member of a Compact for specific action during the period of the initial notwithstanding the availability of any low-level radioactive waste is necessary grant. alternative identified in i 62.13 of this because of an immediate and serious (b) The Secretary of the Commission part:
- .cause to be published in the Federal (1) The nature and extent of the
) o the public health and safety or hgister a notice of the issuance of the
( i) The common defense and security; radiation hazard that would result from determ,mation, the denial of emergency access,~
and (2) The threat cannot be mitigated by ' (c) The Secretary of the Commission including consideration of, '
any alternative consistent with the will make a copy of the final - (i)The standards for radiation C.
public health and safety, including those determination available for inspection in - protection contained in Part 20 of this '
the Commission's Public Document - e
- Chapter; c % M*u d6 s identified in i 62.13. ~ ..,
, (b) In making's determination under Room,171711 Street NW., Washington,' (ii) Any standants governing the" .
. this sectiori,' the Commission shall be P' DC. : A- ~
- release of radioactive mateHals'to the#
' guided by'thi criteria ' set forth in i 62.25} '* '"'*W- W *: : 4' general environment that are applicable ; *
. (c) A determination underthis section - l 62.23.'Menninstion f"w granting to the facility that generated the tow?
mdst be in writing and contain a full .*"", "*"**'EN ""'Y"5 '.:5A a level waste; and W 99% ~
. explstiationif thefacts'upon'which the$ . (a)The Commissionmay grant' - (iii) Any other Commls'sfonM# " ~
determination is based and the reasons - temporary emergency access to an requirements specifically applibable.to -
for granting or denying the requert. An appropriate non-Federal disposal the facility or activity tyhich is the ~
affirmative determination must . - u facility or facilities provided that the subject of the emergency access req'uest; I designate an appropriate non-Federal or - determination required under (2) The extent to which essential regional LLW disposal facility or i 62.21(a)(1) is made; service affecting the public health and ~ '
facilities for the disposal of wastesc (b) The notification procedures under safety (such as medical, therapeutic, specifically describe the low-level ! 62.22 are complied with:*and ' diagnostic, or research activities) will be
.k
! '[ l Federal Register / Vol. 52, No. 240 / Tuesday, December 15, 1987 / Proposed Rules i
475f13
{
~
. Q"V ,
ihsrupted by the denial of emergency (5) 11 cannot be implemented in n
. N access. (d) The Commission. in making its timely manner.
i,j (c) l'or purposes of granting temporary designation, will also consider any
{' (g) The Commission shall make nn information submitted by the operating N, emergency access under i 62.23 of this part, the Commission will consider the affirmative determination under nonfederal or regional 1.LW disposal O.
5 62.21(a) only if all of1he alternatives triteria contained in the Commission's sites, or any information submitted by mi I that were considered are found to be the public in response to a federal t
PohC) Statement for determining unreasonable.
any 7 whether an event at a facility or activity (h)In making a determination Register notice requesting comment, as or licensed or otherwise regulated by the provided in pareraph (b) of 5 7.11.
? j regarding temporary emergency access Commission is an abnormal occurrence under yG2.23, the criteria in paragraphs I)ated at Washington DC, this 9th day of as [' within the purview of section 200 of the December.1987
.' (a) and ('o) of that section must apply.
l'.nergy Reorganization Act of l974. (45 (ij in making a determination For the Nuclear Regulatory Commission.
, y l'R 10%0, february 24,1977.) Samuel]. Chilk, 3 regarding an extension of emergency (d) in making the detenmnation that a access under 5 62.24, the Commission SecretaryoDhe Commission.
he ~ serious and immediate threat to the shall consider whether the person gg id g
'- c mmon defense and security exists, the making the request has diligently acted emo coor me-ow Commission willconsider. .
during the period of theinitialgrant to notwithstanding the availability'of any _ . _
I alternative identified in 6 62.13 of this '
climinate the need for emergency
- part: access. .
FEDERAL RESERVE SYSTEM .
7 (j)The Commission shall consider 0
(1) Whether the activity generating the whether any waste delivered for 12 CFR Part 202 -
"' I wastes is necessary to the protection of. disposal under thiapart.has been '
the common defense and security. IRS B; ECW' f,j (2) Whether the lack of access to a -
reduced in volume to the maximum q.
i ' ,' , ~
disposal site would resultin a a extentpracticableusing available. :
g " ,; technologyc 4.s ; - t Equal Credit Op'portunity; Proposed '
.d-s significant disruption in that activity .
n : ,. . . . . - . .. . . ., . Update to Official Staff Commentarr that would seriously threaten the i 62.2s ' criteria for designating a disposal , .. . .
common defense and security, facmty. . * -
- AcENcy:Doard oIGov'ernors~of'the '
l ' ' Federal Reserve System. . ' '
The Commission w~ill consider t'he views (a) The Conimiasidn shal1 designate P'I '
of the Department of Defense (DOD) an appropriate non-Federal or regional ACTION: Proposed official staff" IC
' and the Department of Energy (DOE)in disposal facility or facilities if an interpretation.
t the Statement of support as submitted affirmative. determination is made J by the person requesting emergency pursuant to 5 62.21.
SUMMARY
- The Board is publishing for access,in evaluating requests based all, comment proposed revisions to the or in part, on a serious and immediate (b) The Commission will exclude from official staff commentary to Regulation consideration a request for ernergency B (Equal Credit Opportunity). The threat to the common defense and access to a disposal facility if:
. security. commentary applies and interprets the (1) The low-level radioactive wastes
[
' (e)la making the determination of the generator do not meet the criteria requirements of Regulation D and is a t
required by i 62.21(a)(2), the established by the license or the license substitute for individual staff -
interpretations of theregulation.The
! Commission will consider whether the ' agreement of the facility; or proposed revisions address issues person submitting the request: (2) The disposal facility is in excess of (1)lias demonstrated that a good faith its approved capacity; or concerning consideration of age in '
.a c! fort was made to identify and evaluate (3) Cranting emergency access would evaluating creditworthiness, signatur'e requirements, record retention and -
alternatives for emergency access: that could miUgate the need delay the closing of the disposal facility pursuant to plans established before the collection of monitoring information.
(2) Ilas considered all pertinent - Dart: Comments must be received on cr receipt of the request for eniergency
, factors in its evaluation of alternatives access:or '
befom February 12.1988.
including state-of.the-art technology and (4) The volume of waste requiring Aconcss: Comments should be m' ailed impacts on public health and safety. emergency access exceeds 20 percent of to William W.. Wiles. Secret"'Y, Board
~ (f)In making the determination required by 9 62.21(a)(2), the the total volume of low-level radioactive I Comnors of the Federal Reserve a waste accepted for disposal at the System, Washington. DC 20551, or Commission will consider facility during the previous calendar ,
implementation of an alternative to be dehvered to the 20th Street courtyard year. .. .. entrance (20th Streetbetween CStreet unreasonable if .
(1) It adversely affects'public health (c)II. aDer applying the exclusionaryc and Constitut[on Avenue NW . ,,.y . .
and safety, the environment, or the critedainparagrapit(b)of this sectionn Washington,DClbetween 8:45
- more than one disposal facilityla -'. . 5:15 p.m. weekdays..Commenti.a.mJand common defense and security; or should ,
4 identified ~as'approp'riateTor/ - c.m y . Include a refetgnce to EC-ITCommenb (2) It results in a significant. r.:..c. y.
M designation, the Coministfo'n NilNhen' may be inspected In' Room,D-It bJ' curtailment or cessation of essentiab + conalder additional thetoriinhrRhl Nrf . 'between 8:45 a.m. gand. 5:15 pun services affecting public health and * ' ' des ...-+
- safety or the common defense and ' ' ' ' ' ' 'in ' tig'NN
' a inrEt ojrcilities - ,, weekdaystmw: u%W52%,@@
securfty(or ;,, f - '
'ly '
FOR FURTHER INFORMA110# CONTACT @ 2-
' (3)It is beyondteclthe,Z. inEal - - (2) and (1} 7.;.3. QifTnNi's 6sidl@ona$fa^tl&$@m
- 1mimom #
c h.+" W W M. Chacin; Staff Attorney
.a economiccapabilities of the person . . , s requesti c:nergency access;or . . (3) Transportation. t M 6.psn.- N ! ' Hart. Senior AttorceriDiv.sioriofr ct: (4)
(4)Radiologicaleffects, ,0 - l ementation of the.alterna11ve. i ,
Consumer and Community Affairir, at" I would conDict with applicoble State or . and (5)M' Site capabuityfor handl!5g kaste. (202) 452-2412 or 452-300/; for.thef^ "
' WE - "k #. I locallaws or Federallawe and headngimpaired on/f , contact"* "-
regulations: or (6) Any other considerations deemed l!
appropriate by the Commission. ' Earnestine I fill or Dorothea Thoinpson. '!
m li Telecommunication Device for the Deaf r
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ComJn.E?n t. $_n4 Section 6(h) of the Act places certain limitations on the designation of a facility to receive emergency access waste.
In addition, the Commission has specified other designation criteria in proposed 10 CFR 60.26, including "any other considerations deemed appropriate by the Commission." The Commission believes that these cover the primary considerations of concer n , and therefore, has not specified " potential liability obstacles" in the rule as a factor in makino emergency access decisions. However, any potential liability obstacle that might affect the Commission's emergency access decision-making on a particular request could be brought to the Commission's attention through the public comment process on a specific request.
Ccetmen.t S.19 A Commission determination under 10 CFR 62.2i would be a final agency action within the meaning of Section 10 of the Administrative Procedure Act, S U.S.C. 704, and no special statement to that offect is necessary.
Comment 17. J 5 See comment 5.19.
Comment 17.4 In the case where emergency access is needed for a bankrupt generator, the Governor of the State where the generator is located or the trustee in bankruptcy, would have the legal authority to pursue en emergency access request.
Conimen t 17.8 None of the sites that could be designated for the rece2pt of emergency access waste under the Act have a security clearance to receave wastes that wou]d involve national security information. T heref ore , this type of waste would need to go to a DOE Elte. and would be outside the emergency access procram.
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1 l C.gnlm.en t_ h 4 l Section 6(h) of the Act places certain limitations on the ! designation of a facility to receive emeraency access waste. l In addition, the Commission has specified other designation ) criteria in proposed 10 CFR 60.26, including "any other j considerations deemed appropriate by the Commission." The _ i Commission believes that these ccver the primary considerations of concern. and therefore, has not specified " potential f liability obstacles" in the rule as a factor in making I emeroency access decisions. However, any potential liability obstacle that might affect the Commission's emergency access j dec.ision-making on a particular request could be brought to the i Commission's attention through the public comment process on a { specific request. Coinmen t l1 19 A Commission determination under 10 CFR 62.2i would be a final agency BCtion within the meaning of Section 10 of the Adminjstratjve Procedure Att, b Lt.S.C. 704, and no special ; statement to that effect is necessary. l Comment 17.3$ Gee comment 5.19. 1 il Comment 37.4 1 In the case where emergency access is needed for a bankrupt generator, the Governor of the State where the generator is i located or the trustee in bankruptcy, would have the legal authority to pursue an emergency access request. Comment 17.8 None of the sites that could be desigr.a t ed for the receipt of emergency access weste under the Act have a security clearance to rece3ve wastes that wou}d invo]se national security information. Therefore, this type of waste would need to ao to n DOE e)te, and would be outside the emeroency access proaram. __ i
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{<,M f& Cr>>vva11,c<'m C/> tied 9. / Page 47580 of the Federal Register notice states that the Nuclea7 Regulatory Commission's (NRC) approach in developing the rule was intended to, "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However, g the proposed rule omits any reference to, or_ discussion ot, fection b( f ) of the Act, which addresses reciprocal access. This j e Section provices Inat the regional compacE or state receiving the emergency access waste is entitled to reciprocal access at any 1
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characteristics to that provided emergency access." //l[ j 4 While the NRC may not wish to be involved in these arrangements, jit must ensure that the right to reciprocal access is recognized i Iand its implications are. considered. A formal reciprocal access f acknowledgement and should be extracted from the compact recian !
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' 3, emergency access waste has an equal volume of rae.iprocal g access 7 waste with similar characteristics. This specific determination H j criteria.
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' Finally, the NRC should be aware of any potential liability Q)JtacAes-before making final decisions. It is possible that **; ~7 4 diffe aY g Liability requirements, among compacts or states could Sq receipt of emergency access or reciprocal access waste. -
06(Un$e]' l l . CerwJ 9.C - Wo believe that the reciprocal access provision of the Act is a q significant one that cannot be ignored in the NRC process of / granting emergency access and designating a disposal facility. S'p This is of particular concern because the receiving compact t region or state has virtually no leverage Reciprocity is anor integral role to play part in of the emergency access process. Section 6, and should be recognized as such in the proposed ruley
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# P Because the NRC has already indicated, on p. 47583, thatitwi.'.1].
[.h attempt to distribute emergency access waste as equitably as possible, a criterion related to past acceptance of such waste 4 should be included in Section 62.26(c). Tue criterion would re.auire the Commission:to consider, "The volume and qN - b characteristics of emerciency access waste previously accepted. " h
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- 1) IONS agrees with the NRC's determination that establishing criteria and procedures by ruie. an advance. is an appropriate approach. Establishing )
/ procedures in advance of a request allows the NHL to respond quickly in
- the event of an imminent threat.
potential applic3nts to plan accordingly, Establishing criteria and serves in advance notice that the allows,) 3,\ emergency access provisions may not be used to circumvent the express provisions of the inicrt af the Amerdments Ac*. J
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- 2) IDNS agrees with the statement preceding the proposed rule that NRC should
... reinforce the idea that problems with LLW disposal are to be worked f,2 e out to the extent practical among the states...." Thz - nnsed rule does l nol_, however, expressly encouraae_ states and comnarts to enter into ennnorative agreeme ns f or emergency access hofnre the need for such te og y access arises. Suc1 agreements Wou id be consistent with77te intent of .o V'*
V Congr'bT5 aliU'should help to avoid any immediate and serious threat to the r' public health and safety or the common defense. The rule should expressly, encourage states and compacts to enter cooperative agreements. _.
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\ that believed it was important for the successful implementation emergency access not be viewed by the unsited States as an g" 3 of alternative to the pursuit of the development of new LLW disposal
_ capacity." We_believe this statement should be made part of tha role. _
/
Development task. 1he task isofeven newmore LLW disposal difficult capacity when citizens is a controversial in states such as 1 and dif ficulfg/,/ Illinois, where progress is being made, hear and read statements from officials in other states that the framework set out by Congress is flawe( d and that it may not be necessary for every state to take steps to provide for the disposal of low-level radioactive waste generated within its borders.IItisIDNS'rovnariencethatIllinois'e_'117enswantassuranrod that the Iflinois disposal facility will accent nn' v low-levhl' radioactive vaste cenerated an tne , m rqinn ILis imperative that emergency access noQperceived by the states as an alternative to making a diligent ~ ef fort to f u 1 fit 1]hETY7e3 pons-itWitics. < b Spos 3. * {dkr L Y C Y s<- pXNb b NJ M 4 [i u CL'Y buaa sua55W cavaf rG Gw~auaduc na LL& ww w a&w c yasack wadD s a p.64 % =s.e h !
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t t$f'Section6(f)ofthIONS e Amendments observesAct, that thepertain which proposed rule does to reciprocal not address access. y3 the prov IDNS recommends that the proposed rule address reciprocal access and 3, ! i recognize Lnat a co,nditioII~tTT'Obta1nmg emergency access i s proviti n_g
... reciprocal access tor..an equal volume of in3< level radioactive waste
- having similar characteristics._to that nrovjded,egua_l access.' _ - - -
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~ --- ) The proposed rule does not address the issue of disposal fees for wastes
disposed of under an emergency access determination. The obligation of a 8 ,Jstate or compact to accept wastes granted emergency access should be l conditioned
> 7(-
f( applicable.upon the e.plicant's payment of disposal fees and surcharge las S., 10Mfm3d _p ggy copotA -
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;-~___ j L1) 962.2 aThe _ definition of Low-level Radioactive Waste is incorrect. For T purposes of emergency access to non-federal and regional disposa7 5
facilities, the definition should be limited to that sub-class of low-level radioactive waste for which states have been given responsibility 6 under 42 USC 2021(c). The definition should read:
" Low-Level Radioactive Waste," (LLW) means A) radioactive waste, other
! than radioactive waste generated by the federal government, that consists of or contains class A, B or C radioactive waste as (a defnedbysectice61.55ofTitle10,CodeofFederalRegulations,asj in effect on January 26, 1983, and B) radioactive waste d A) that is generated by the federal government escribed in
- 1) owned or generated by the Department , 2)ofowned Energyunless such waste 1
or vessels of the United States Navy, 3) ngowned of result or ge of anyorresearch, weapon, 4 Action Progra)m. development, testing, or production omic of any at identified under the Formerly Utilized Sites Remedial e Under the Amendments Act, disp ~osal of waste that is above class C, as defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility oft the states. The Nuclear Regulatory Commission may not, through J regulation, alter this statutory limit, yet the proposed definition of
, low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level radioactive waste." j ID_NS objects to any attempt, whether deliberate or inadvertent,
$ t o h additioniii
' MAtutory limit's.
ouroens on the states in e,ontmavenHnn nf orpriiss ine oroposed definition is particularly troubling in
'lregionalfacilitytoacceptwastethatisaboveclassC,orFUSRAPlight {o
- wastes.
IONS also notes that providing disposal capacity for naturally-o_ccurring and accelerator-produced materials is not the states' -
. responsibility under the Amendments Act, and that the NRC has no authority under the Atomic Energy Act to include these materials in any definition of low-level radioactive waste.
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'Section 3(b)(1) of the Amendments Act provides that the federal government ~j is responsible for the disposal of certain types of radioactive waste ]
~~~~~ j (i.e., above class C) and radioactive waste generated by certain
-- activities of the federal government (e.g., 00E waste, defense waste).
Although the thre commercial disposal facilities will continue to
~ ~
operate, and states and compacts are required to establish new disposal _... capacity, there _is no provision in the Amendments Act for establishing new 7" #sposal facilitiesdor waste that is a federal responsibility. IONS ._. _, suggests that one possible scenario under which emergency access might be ~~ requested is closure of existing federal disposal facilities. _In IDNS's 6 - - - -- - opinion, the proposed rule is substantially deficient in its failure to i t,oiIow tne express mandate of Congress that no non-federal f acility ever
-~- - ---
be required to acceDt waste that has been made a federal responsibility. Tn the Supplementary Information section of its Federal Register notice,
~~~
l l the NRC stM es that the emergency access provision was "not intended to be ' - - ~ used to circumvent other provisions of ttle Act." (52 f_ed. Reg. 47579.) / lbf innlementina role should clearly state that no recuest for emergency _' l 1 .arress for waste 7 hat is a federal responsibility 3 hall ever be considered or granted As the Uduse tnergy Lommittee pointed out, the NKC may grant i ._., access only for waste which is a state responsibility. Language proposed for inclusion in the Amendments Act by the DOE that would allow emergency f .. access for waste generated by the 000 was expressly considered and rejected by Congress. The NRC should abide by that' decision and the cf -~ express language of the Amendments Act in promulgating this rule. - - s
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- 2) %2. 2 follows: - -
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"' Temporary Emergency Access' means access that is granted at NRC's " i discretion upon determining that access is necessary to eliminate an
{ immediate and serious threat to the public health and safety, or the i common defense and security. 50ch access expires 45 days after i f granting."
'h9 )
3 () The NRC's authority to grant emergency access, whether temporary or not m / is limited to those situations where such access is "necessary to (d[ eliminate an immediate threat" (42 USC 2021, emphasis added.) The Amendments Act does not, as the proposed rule suggests, allow the NRC to u g . grant sy.nonymous emergency access to gNrfly"Wti'eW~the applicant with " eliminate. " Alleviate" can isJa.t show, and thelieviate .h
.2, '
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- 3) s62.12 Add a new subsection (c) as follows:
m V(
"(c) That the material for which emergency access is requested is
' low-level radioactive waste' as defined in this Part." '
k and re-designate the proposed subsection (c), and following subsections, \, 5.1 as appropriate. This~will help assure that no state will be asked,to
- dispose of waste that is not a state responsibility under the Amen'dments Act. -- L.
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- 4) 62.12 (f)(3) should be modified as follows: 3 D
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the common g*ll defense and security."
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- 5) %62.12 Add a new E62.12(k) as foll0*
A description of how granting emergency ealth andaccess safety orwould elimin
"(k) d erious threat to the public an immediate the common iefense and security."
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[' __. 6)ps62.12 Amend the proposed G62.12(k) as follows and re-designate as a y!
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(e p 62.12(1): ~ jdi g z) "(1) Where the request is made wholly or in part on the basis of a ^ serious and immediate threat to the common defense and security, s. ' J-f certification by the Secretary of Energy and the Secretary of Defense'th t i the waste for which emergency access is granted is not owned or generhte M [ ) . by the Department of Energy, owned or generated by the United States Navy, O p [ b'g as a result of any decommissioning of vessels of the United States tiavy, or owned or generated by the federal government as a result of any 5 ej/-' research, development, testing, or production of any atomic weapon, and t that access to dispesal ;s necessary to eliminate the threat to the common defense and a;urit;. gp
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1 (( t2. C.Oi) N mendments Act-it is the responsibility
. of Asthe explained in comment g*it fcderal' government, not#1,.under the-states,- the to dispose of; radioactive waste-IONS holds tha generated by certain federal activities' safely.be forced to accept 45.0 respon
[/ g emergency access provisions
~
federal regulatory agency. of the Amendments In addition to the generator's Act-or through any action certification that. of a the waste'for which emergency access is. requested meets the. operational. definition suggested in. comment #1 above, these additional safeguards. are -- necessary'to assure protection of states rights in the~ event'that the. request l
~~
for' access is based'on~a claim'of immediate and. serious threat-to the common . .
~
defense and security. ,
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y g) Mofify {62.13(c)(6) as follows: . _ _
^
"(6) Any legal impediments to implementation of each alternative q/ ye
. including whether the alternatives will comply with applicable NRC "
v requirements, and the requirements of the Compact Commission and t
! ,Y4 State where access was considered."
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lt should be made clear from the application for Amergency access w her @ denial of access was based on failure to comply with applicable standtrds. I'G NRC should not grant emergency access when the emergency was brought abo t._by d- # the applicant's own failure to comply with regulatory _ standards,. 3 , [uspmes N2C cgw.s tudL+G cbp, r+ms he, aA k W ; f3}.wL i
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"The request must include clear and convincing evidence that theWWW"4 A applicant has exhausted all other options for managing its wastes and must include the basis for: -
h (1) Rejecting each alternative; and 6 (2) Concluding that no alternative is available." v Section 62.13 of the proposed rule specifies that a description of alternatives considered must be included in a request for emergency. access, but it does not include the provision in the statement preceding the rule that, "(alpplicants for emergency access will have to provide clear and convincing their wastes."evidence that they have exhausted all other options for managing the rule. This language is appropriate and should be incorporated into
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, . . e ~ 'P 1' ) &62.14 Add a new s62.14(c) as follows:
9
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"(c) A description of how granting emergency access as requested '
t would eliminate an immediate and serious threat to the public health ' 4~ - and safety or the common defense and security." w N Y g,5' <.7 hsf%n : ' y& ., & QxAcL IUh cy -Ll g g y n o sulysSM JMn n: - %.&pw A Cc w J5.Ilrw<wc4alkbli f & ,Z%
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{62.18 Replace "may" aith "shali" in this section. 4 y 10)
=
/ hit section provi ^ na'. the Commission may deny a J@est if it is
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I based on circumstances that are too remote and speculative to allow an informed decision. IONS recommends that "may" be changed to "shall." If the hg9 Commission cannot make an informed decision on a request, it chould not grant the request. _ gg,MPW o
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- 11) s62.21(a) should be modified as follows.: /
"(a) Not later than forty-five (45) days af ter ttie receipt of a request for a Commission determination under this Part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or generators located in his or her state, the Commission shall makg a determination whether,- u -
g pA . (1) The_.resu W for emergency access to a regional disposal facility or a ta M ity within a stdte that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to: g\. (i) the public health and safety, or A M . (ii) the common defense and security; y (2) The threat cannot be mitigated by any alternative M y& consistent with the public health and safety, including those 1S identified in 62.13, riv , (3) Grantingemergencyaccessasrequestedwouldeliminatethf
"/ threat, and I
1 (.4) The material for which emergency access is requested is -'M N . 10w-level radioactive waste as defined in this Part and a State g@b responsibility under section (3)(a)(1) of the Low-Level h~f
. radioactive,WastePolicyAmendmentsActof1985.
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I, (ud bLb"i tMw A5' CdC%yS QA fltain n4Q AZkln , l l 0 8 > m s J S A 1 2--- 16[ G62.27 Add a new @62.27, as follows:
" 62.27 !
emergencyCompliance access. with conditions of emergency access; termination of l j (a) The operator of a regional disposal facility or a non-federal M p! disposal f acility designated by the Commission to provide emergency access lg
'g, mayrefusetoacceptthewastesfordisposaliftheapplicantorthe !
does not meet conditions set by the Commission pursuant to this Part. ,; l (b) () The Commission stiall terminate a grant of emergency access when '! r
. f, emergency access is no longer necessary to eliminate an immediate threat bkM UI to public health and safety or the common defense and security. M 4%l I- (c) The Commission may terminate a grant of emergency access if an 7 1
[ c annlicant has made a material false statement in the application for i J nergency access or if it e applicant has failed to comply with this cart ' v\ /' or conditions set hy tre :ommission pursuant to this Part." 0 ; n -
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~ Wg #j 562.25(e)(1) Replace " good faith effort" with " diligent effort, ?
p rea)sonable under the circumstances," in this subsectian. Subsect' ion (e)(l) provides that the Commission; in making an emergency' % ' access determination, will consider ><hether the applicant "lhlas demonstrated / (44 Ithat a good faith effort was made to identify and evaluate alternatives that (M would mitigate the need for emergency access." IDNS submits that subjective 7
) treasonable good faith should not be sufficient.
and diliqent. The effort must be objectively M
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(D5 FOWL 's l [@b 00MCvd Si2)
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- 75) A new G62.26(b) should ae added as follows; g y _ ({, [
(b) If the Commission designates a regional disposal facility to receive the waste for which emergency access has been granted, the g W M ' M [, Commission shall request the approval of the Compact Commission f r # the designated regional facility. The request for approval shal include the entire administrative record of the request for emergency l 6.p access under this Part, inc.Lugg the reasons for the Commission's Qndings. No grant of emergency access under this Part shall be l effective prior to 15 days from receipt of a request for approval g from the Commission. 'g Section 6(g) of the Amendments Act provides that: Vce"lf"
"(a)ny grant of access under this section shall be submitted to the f
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." /,
, _ _ _-- ~ ~_ _ .M '
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Cenen.twJ S. / 8 - Replace "a.lleviate" with " eliminate" in this subsect4erCce-Cc
.g 2) s62.21(c) n ,,
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'D) Q62.22 Add a new 62.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for en1erge
} /#h g-access or temporary emergency access under this Part is f inal agency action.'
If the request is indeed based on an immediate threat, and the decision is '7 challenged, then prompt judicial review is necessary to resolve the S' issue. Clarifying that a grant or refusal is a final agency action may remove potential obstacles to obtaining prompt judicial review. S w ,Oth).$t l c, l l l
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.s) 62.23 Determination of bruntniy eempueasy anergency Access !
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" This section provides for the granting of temporary emergency access to --' ' I
...an appropriate non-federal disposal facility or facilities...." The -l (JN ' ,9 'l kemergencyaccessdonotdistinguishbetweennon-federaldisposalfacilities j i
j and regional disposal facilities. Does the NRC propose to limit temporary emergency access to non-federal facilities in order to avoid the provisions of g, j ! l Section 6(g) of the Amendments Act, pertaining to approval by a Compact l Commission? - s n - - /<
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- 12) 62.11 Filing and Distribution of Determination Request it is provided in subsection (b) that a copy of each request for emergency 1 g).b. access will be made available for inspection in the Commission's Pub'.ic j Document Room and in the " Local Public Document Room of the facility submitting the request." A request for emergency access could be s'abmitted by any Governor or any generator of low-level radioactive waste. What is the _, l sourro nf the requirement that all such persons maintain local public document g - ,
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. 7 The provisions of this section would allow the Commission _o bypass all of
,, the procedures of the emergency access rule by granting speci cexemptions.
. Why is this section necessary? Under what circumstances woul RC grant' special exemptions? What assurances do states and compacts ha , that this '
y exception will not, in practice, become the rule? This provis on should b , deleted. j U s . x.. . u,EEC-. j la&pthw C+h tm asclb6 jdLG &S 4 ad>L& eeug s%iDA & Ak w my . y
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Ik has como Eo our attention that the the NRC is authorized - by the NRC to supersede state and compact rights in situations
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where the NRC deems the " disposal" of waste from outside the ~~~'j region or state to be an emergency. T~~ It is of primary importance to the whole concept of compact b') and state dump siting that this emergency authority be used only _ _as a last resort, when clear danger to the public is evident. ~ . _ _ _ . . - _ _ _. .- - . _ . . . . ~ . . . - . . - by?4 S U bA%n .:$$4'1. .6L m ).0 W .3D CNElW LY.. $ w -. S y -- v.-eSA0 . C&G7 M L} LAG Y LS EY .. . _ . -
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.y Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or ,
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& B,y. - - _ .. _ _ ~ . ... . - . ~ ._ ~~~- c, and all criteria and restrictions Or. typet., of ~ nuc ear wacte acceptable atthatstateorcompact'sdumpshould)- upersede any NRC order. .- iLW '9 ._ . . - ~ - .- - - . . g N j* ' .05fM?SeL . . k sb )_ CL A rt b W l c h h J. A M b i 4t R / m
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!" dispose" of it, since the technology to dispose of nuclear g, q jwastes is still experimental. The rules should state that the t NRC cannot force out-of-region waste to go to those sites.
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- l. The recipient faci ity g levels sufficient to pay full ould be allowed to collect fees at
- 4. expenses associated with the !
j long-term operation and maintenance costs of the facility for any wastes Regulatory that are received under direction by the Nuclear Commission.
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lUhr.;W a .1. - l The references in Section 62.25(d) 1) and (1) theto activities generating wastes being "necessary(for protection of th common defense and security" are cryptic. What are examples e
e of such activities by the Department
, of Defense and what are the of Energy and Department
{ involved? types of wastes which could be '
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2 The Council members also wanted to express their concern that the states !
, in which recipient facilities are located which could ultimately receive emergency
_, low-level wastes do not have any control over whether or not to accept such .
wastes. The decisions rest entirely with the Nuclear Regulatory Commission.
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t g o 757B on the proposed l I We are writing in rnard W IM b ,fi l frute by NRC t o force compact and State *o level" radioactive waste dumps e
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- f g New York State law (the Low-Level Radioactive Waste Management Act of . - .
W t 1986) specifically prohibits federal wastes, such as Department of Energy h, wastes, at any New Yor: State " low-level" radioactive waste f acility. There j are a number of DOE FUSRAP s i tes , with long-lived high-level waste, in New \
York which currently are being cleaned up or temporarily stored. We are aware that DOE has approached New York requestire access 4 , to its " low-level" radioactive waste facility for certain Dot wastes (such as U-238 and U-235 [g,g at the torme B L Andustries DMiiMu COTonie , N . 't7.
' Env i ronndt a l Co6Thrvation disapproved this request ai Drie state Dept dt suuseque.
[ u ihe ld the st aG 's nt law g4 5 j propo d polley rute to te exempt any tederal wastos._Ihnr. gore. we totall?
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p' T6 TIEc'E70ut-o f-s t ate was tes goe s agains t the basic premise of the however inadequate Federal Low-Level Radioactive va s t.e Policy Act which supports y '
i compacting authority to exclude and state's wastes. rights. The NRC is directly threatening the state's s
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F6r TRCs~i'T6~TEt 0id~iYde r a l waste s w ill .n many case s cause the state's
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management of facilities (in terms ot~ st orage/ 4isposal capac ity , etc. ) to O' 1 be radically changed. How will states / compacts be able to adequately plan j t and manage their f ac ilit ie , with the threat of NkC emergency declarations # j j
forcinn substantial amounts ot waste on them at anytime?
. ,.~.. -- J' At the very .l e.ast, the NRC should change the rules to: ~ ~ _
!) Require strict adherence to state / compact requirements, including go, i 'j
- al lowing on ly con 1.e rc i a l w.is t e s (not federal) up to Greater than Class C
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-3) 1,astly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes. (O '{gr - __
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Also, the term " emergency" is no assurance at all - the federal
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$;ove rnme n t , can think up many reasons to declare an emergency which do not deal with the fact that their own inaction to adequately store wastes '
,and stop their production has cauaed the " emergency" in the first place.
- States should not have to bail out the fede ra l gove rnment . O ~
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p , I n c lii~s i n UUi~c~il'[ on t h e N RC to withdraw the proposed rule in its g.
entirety and to establish a comprehensive storage and reduction of production .
rogram wh2ch will ensure that no emergency will exist for federal government ; i
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We are writing on behalf of the Ame_rican College of Nuclear
+ Pb.ysicians and the Society of Nuclejtr Medicine nrgATding' th~e-NRC's proposed rule to establish procedures and criteria for ~
granting emergency access to non-Federal and regional low-level
' waste disposal facilities. The Society represents over 11,000 _ _
physicians, physicists, radiochemist, radiopharmacists and technologists dedicated to the overall advancement of Nuclear __ _ _ .
Medicine and has major interests in the scientific, educational
. and research activities affecting the field. The College is a professional organization representing over 1,200 physicians whose primary activity is the practice of Nuclear Medicine.
Many of our members have had significant involvement in the formation of compacts and siting of disposal areas following
~
the passage of the Low-Level Radioactive Waste Policy Act i Amendments of 1985 (LLRWPAA). - -
l s i j During congressional deliberations on the LLRWPAA, the C,ollege and Society testified on several occasions in support 9f the emergency __.ccess a provisi_ons for cencrators of biomedical waste _.to LLW disposal _f,a_c_ilitigsg Because access to disposal
__ facilities is critical tor the delivery of health care services, we strongly supported the enacted emergency access provisions allowing generators or State Governors to appeal to the NRC when denial of access would create a threat to the public health through the interruption of Nuclear Medicine procedures
~ or radl~ pharmaceutical production.
The medical applications of radioactive materials are not just -
matter of importance to the specialty of Nuclear Medi-cine, out to the entire medical field as a whole. While an
- q. .. _ . _
estimated 120 million Nuclear Medicine procedures using radiotracers are performed annually in this country, this represents only one of the important contributions that radioactive materials make to ,
health care. In addition, as much as 30 percent of all biomedical
- cesearch is dependent on radioactive tracers, andapproximately95%l of all the prescription drugs in America are developed with the usc-]
{ rials of radioactive tracers. It is clear, then, that radioactive mate-permeate every aspect of medical practice.
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_ Disposal capacity for_ LLW ge_O.cr.a13._d_by 1]1e J1p_nuf acturers of r,.adiopharmaceuticals osal is just as important, if not more, than dis-I capacity for dir_ect generators of medical CLW (1.e., h~5 spi-V hs, laboratorten.). We would urge the" Commission to consiWr that on-site storage, may create problems while for aothers. feasible alternative in some situations,;
g For example, today, most hospita:
and laboratory waste is subject to volume reduction and on-site J.' storage and decay, as is evidenced by the fact that in 1986, medi6a1 _
_e aste account _e.d for_only 1.3.1 of the total volume of LLRW received
, 7 Lt dis.posal
- unately, sites (and however, in theonly case.0001% of of the total activity). 1Tn f o__r -
hg ' JiNtopharinaceuticals __on_which the_Nuclearlos t __ ac_ceas._,_ Unri4 ei ne _ cpEmurlity the_manufactur_e: S '
jiepends would not be LteiT titJhe r-ac tivityable to accommodate on-site storage because .
materials would conceivably exceed avail'able
*%. QnIrite tt~orage capacity within one to six months.. ~
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_In addition, we would like tp draw your attention to the f act ->
,\\ > p that on-site storage may not be feasible or desirable for larger volume and activity generators in academic research institutions j and pharmaceutical houses because of the possession limits specified
_Ln_ thn ._ genera.toIs ' 1 icense_s . For example, if most of the genera-tor's possession limit f
I is consumed by the activities present in the waste stored on-site, then obviously there would be less radioactive materials available for important research or pharmaceutical deve-lopment. !
Not only is there a public safety question concerning on-site storage of this waste, but if radiopharmaceutical manufacture was to cease due to failure to find a viable solution to the waste problem, cease or be all significantly of the medical activities using these materials woul,d curtailed.,,. 7 c
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l The College and Society raise these fine points on possession y limits and on-sito storage so that the NRC recognizes the delic5^te baDcii ~tistween Ehe mell N community's ability to provide necessary health care services and capacity. the availability of adequate LLRW dispoul )
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I We~dgree with the ' Commission and the Congress" tnr.it ~eYuer "" ' ' "'*' "
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gency access should not be used as an alternative to diligently pur-l suing the compacting and citing processes mandated by the LLRWPAA.
1We also agree with the NRC that emergency access provisions are I
g '1 sv i the event that access is denied or isl mportant health care services and research c n unava a le so t at icontinue uninterrupted.
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-d In conclusion, the College and Society support the emergency h..
lI access provisions of the LLRWPAA and the NRC's efforts to establish -
procedures and criteria for granting such access. We hope the Com-H. 4
(, mission will bear in mind the unique characteristics of LLRW gene-L- -,
, rated by medical institutions and radiopharmaceutical manufacturers '
dand the necessity of access to disposal for the provision of vital
~~ ~ ~
medical care services in this country. Please feel free to consult; r ~
with us if you require further information or assistance. !, . . .
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Altnough tne Low-Level nacioactive easte holicy Amendments Act -
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fAlthoughtheintent is that NRC~use itsLEmergencyJAccess' authority only as a-last resort, the danger l' 1 I states could be required to take waste they choose is present that to exclude.
.This loophole in the 1985. Low-Level Radioactive Waste Policy Amendments Act threatens. states' authority tol exclude' waste. '
f We ,have very serious concerns with the emergency access ~ J provisions: federal change'the but' understanding that NRC i's not 'in the position to .
law, we submit the following suggestions to i make the regulation as s.trict as possible and to' guarantee, to-
_ _ . the greatest possible extent, that the provision not be abused. ~
. , . . . . htCph1:Q, b .)ahz nu2.t.ps5 a.u. ._ _ .
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..'l. Clarify that Federal' waste (at least that for'which states and p /
6-
' compacts are not currently responsible) is not eligible for #
l (emergencyaccess.
l- r t Since state and compact dumps are being developed.for commercial waste (and some Federal waste as defined in the 1985 Low-Level ,
Radioactive Waste Policy Act), this is the only type of waste r that should be eligible for. Emergency Access. 4Q1e_gule should
~
clearly prohibit Federal waste (ex: waste from Departments of ED.eI.gy_ h fein.,uj. There are two places in the regulation which 7 indicate t hat such wastes could be given emergency access. They
_ 'are in Section 62.2, the definition of " person" who can apply for g"
) emergency access and in Section 62.13 (a) (5) which gives a d
condition for " Federal and defense related generator (s) of LLW" l'M4g to meet in their " request for emergency access."
fJ FirnT, the definition of " person" who can apply to the~NRC for p))0L V1 einergency access includes any Governor or chief executive officer on behalf of "any generator or generators of low-level -
y, radioactive waste located in his or her " State..." fi,uch u f
.g.enerators could i nc l ud.e_g eneraLor.s_ th a t__ar.e_n ol_.NRC_ o r_U RC_ l .
Ag reemen t-. Stat.c_ Licensed.. We wou ld like to see provision made to l '
clearly prohibit. DOE and DOD and other federal agencies and j j
,, ..contractors s
emergency access.
from gaining access to state and compact dumps via ,
i
M (14.x ced.). --. - -. . - - -- -- - -
Second, Section 62.13 (a) (5) (which appears misprinted as o in 52 FR240:47587 December 15, 1987) requires that Federal or 82.13}?
defense related generators of LLW must first attempt to gain access to Federal disposal facilities before they are eligible for emergency access to non-federal dumps. If non-federal -
disposal facilities are going to be required to take Federal
~ ~ "
waste then of course it makes sense to require those generators --
to attempt access at Federal dumps first, and on that level this 4equirement is casential. -
noth the definition of " person" and Secti_on 6 2. 3 3_(a ) (5) should ]
__.[clarifythatonlythoseFederallygRneratedwastes -
for which & h
_ _ _ _ states aYe alre^a'dV responsible (an defined in t he 1935.. low L'evel -
y
~~'
Rac110.ac t ive Was te Policy _ Amendments Act Section. 3 (a1(1), (B) ) are .
e,Li.g ible for emergency access. This excludes Department of' Energy ~
waste and US Navy waste from decommissioning Navy vescels and any nuclear weapons research, development, testing or production _ '
waste. That waste should be clearly excluded from eligibility for _ _ _
i emergency access, w w.4 imee
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. Arguments;against leaving the ' regulations .open to Federal; waste::
_ c- (1)J It is commonly; known that many Department of' Energy sites are well below the' national environmental standards and .
. attempts-to remedy those sites'; problems-could) result'in the
- e
. generation' of . large volumes, concentrations, and? numbers of curies in' radioactive ~ waste. Welwould' encourage remedial action
- - and clean up of many of those. sites but-can foresee the usual !
dilemma of where to putithe waste- that is " cleaned up " U ln ess .
.non-federal facilities are. planning for such responsibilities, they should :not be saddled ~ with' Federall wastei as _ the- wording ~ of .
~ ~
the definition of " person" fin the proposedtregulations in Section-
.62.2 would allow.
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Furthermore, DOD, DOE and other Federal waste is not
- { cur ren(2) tly classifled as Class A, B,.C or Greater-than-Class-C
~
(C +) , as is commercial waste. It will be dif ficult to determine ,
whether Federal waste meets the license criteria for any l non-federal sites that use the A,B,C,C+ method of categorizing j
" low-level" waste. Even if DOE rec.lassifies its wastes as A,B,C '
and'C+, the source of such waste is much dif ferent than :
commercial waste and could pose technical problems which states (
and compacts are not considering' in their dump planning. j
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( A potential . concern here however,is that state and cornpact dumps that take on the extra burden of accommodating DOE waste (and this could happen because states are dissatisfied with DOE's performance at its sites ~in that state or compact) will be the r
only nonfederal 11w disposal facilities eligible to accept such waste ' thus would be required to accept such waste every time NRC granted emergency access to Federal and defense related generators. We only wish to point out that such a provision could
~
[
penalize states and compacts for takimg on_ longer . lived and concen tra tea was tTis. ~~~
( ---_m o r e. . . _ !
Cyn15AJ . .- . q&8Wf.qua:- TEh" c NN.
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Although there are serious unresolved problems with this method (10 CPR 61. 55) of classifying " low-level" radioactive waste, we 14'g , N understand that many states and compacts will likely follow those
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p- (3) There could~ be a conflict .of interest if DOE and DOD waste are eligible for Emergency = Access when they are providing.- l U NRC with the assessment of the impacts on the " common defense and N 1
# accepting the waste for emergency access and'b) M. I security" of a) allowing'the continued generation of.the waste requiring ,
emergency access.
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' and compacts' right to refuse -waste that does 'not meet- -
fications they are designed and licensed to accept e strengthened.
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Crn.as / % 9 "We support the provision in Section 62.26 (as corrected in 53 FR 15:1926, Monday, January 25, 1988) requiring the NRC to exclude a , ? g,4 disposal facility from consideration (from taking Emergency
- Access waste) if the waste doesn't meet the license criteria of the facility. The rule should make clear that if state or compact P 4~
dumps have other restrictions such as prohibitions on wastes that W
, are hazardous longer than 100 years or on Class B and C waste, p)
NRC will respect those criteria and not grant access to waste -
- Qat docq not meet those criteria. w s~ v, o,) .
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- 2. A. Since state and compact " low-level" dumps are not required to accept Greater-than-Class-C waste, h regulations should g%
7*3 explicitly proh_iW RC frnm acc.cpt ing applicat if6nUs~TC ~
pcf; )
GEEa t e r - t h a n -Cl as s.-C._wante_lo r e me r,g e n c y access. s CJ9 The definition of " Low-Level Radioactive Waste" in Section 62.2 should' be changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level '
Radioactive Waste Policy Amendments Act. Or, if the " Low-Level Radioactive Waste" definition is left as is for the sake of
%.b consistency with the other NRC regulations, then another phrase should be used to replace " Low-Level Radioactive Waste (LLW)"
throughout 10 CFR 62 so as to .nake clear that only Classes A, B and C waste are eligible for any emergency access. (Further, should NRC eventually reclassify LLW (in categories other than A, B, and C).) -
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# 3. Incineration should n2t be required as a part of maximum 3l
)
volume reduction or waste treatment prior to NRC granting. j '~ ' ^ ^
( emergency access.
{
Compaction and supercompaction may be required and possibly other solidification treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be W.L l solidified and continues the process of generating more I
" low ~)cvel" rad ioact ive waste. This rule should in no way require.-
radioactive waste incineration. #
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[4. States and compacts that are required to accept emergency
' access waste should be permitted to charge fees and surcharges on emergency that access waste and to enforce regulati.ons and criteria '
- f q , <)
they determine are necessary for responsible isolation of the waste from the environment and to hold the generators liable g for long-term care costs. -
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- 5. We encourage NRC not to weaken any of the requirements for i Emergency Access applicants. o
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% The Kentucky Radiation Control program would like to make its' ;
wishes known, relative to the above referenced proposed rule, by l
. totally supporting the comments provided by Terry R. Lash, Director.
Illinois Department of Nuclear Safety, in a . letter (attached) submit- \
l tod to the U. S. Nuclear Regulatory Commission dated February 11, 1988. kg* '
N - . . .
l Rather than reiterate the various comments contained in the attached letter, we feel that Dr. Lash's comments are not only reason-able but fully justified. Not only does he agree with much of the proposed rule but he points out errors that must be corrected.
Ej)Db" *. /cY/
(d a
hyxAT/d < k . .
In addition to managing the Kentucky Radiation Control Program, IS also serve as Commissioner on the Central Midwest Compact Commission.
As Dr. Lash stated, the state of Illinois is presently engaged in the [N process of selecting a site for the proposed low-level radioactive
. . - waste disposal facility and the Central Midwest Compact Commission,}
comprised of Illinois and Kentucky., is making every effort to comply) with the various milestones under the Amendments Act.
It is essential the proposed rule be drafted correctly because $
incorporation of inaccuracies and ill-defined statements will dramat- k
" ~ ~ - ically effect how low-level radioactive waste disposal facilities ca function. l fAl&L . .._ (/h.t. GL4556A. _ . _ . . _ . _ . . ._ _. _ - . _
--- - ~ ~ . . . . . _ . _ .-.
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This proposed rulemaking has several major flaws that if not corrected could potentially act to undermi.ne the substantial l-
-~~
progress that has been made to date on implementing the Low-Level s Waste Policy Amendments Act of 1988.
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' First and foremost, this proposed rule appears to violate th entire premise of the Act, that each State is responsible for disposal of its own low-level radioactive waste. The rule should
['k [ '* '
te_ quire that the State or compact where the problem is located i Inust demonstrate that it has exhausted its options for dealing D' g'
with the prooAem. A.n.ls snould include tne aucupt to entet into - ~
reciproca.L agreements Eth other States or Comr> actsa or the State tEking-title-Lv and storino the waste until access can be prov.tded utider the normal terms of the Act.
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' & emergency under the Act'(i.e.,' DOE waste)'could be included under7 theIt access-provisions. " appea
'ntent'of Section 6 of the Act.WeWe do not find'it believe hard that.this to believe wasthat the the Federal Government with all its' infinite; resources, Q 3'
'waste.
bo' the first and only party responsible ' for . disposal of thisshould not
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m The most likely scenario that u m g ncy access appears to be that of a b ku Compact cannot or will no p v de for disposal. Under these 9 nerator where the State or ] N i
i circwnstances it i t cl ar_who-S woulfi._ hays _ the responsibility i for the applihat fon'~~ ability,_vo. lume_rfd uction, - and cost' (p.D
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requir.eme~n.
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In order that the credibility of the pre., cess be maintained, d l-this rule must not be viewed as a way of cir % mventing the - n responsibilities and arrangements that have been carefully /
implemented as required under the Act. Most of the Host state \'
implementing laws and/or Compact laws have very specific If % !
) at provisions and restrictions concerning out of Compact access.those provisions all possible, The provisions N l l
wrpi'rtun03 ance's emergency ~ access should occur.of this rule should i
~l only I
should be such that this intent is clear.
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In addition, we have reviewed the specific issues for which input has been requested and have the following comments:
- 1) What scenarios are envisioned where emergency access would be ~
required?
~~
-- As writtea, the rule could 1:equire acceptance for disposal of /1 federal waste under " tempora m emergency access" provisions. __
' {-- If a State or compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to
- p, f.
- the closing.
A generator is denied access to a State or compact disposal -
facility for whatever reason.
-- An unusual occurrenca such cs bankruptcy of a generator causes abandonment of extremely large volumes of waste which
~"-
exceed State or Compact capacity for sate disposal. _
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lp bThedifferencebetween"emergencyaccess"and" temporary d ) I
' 3Q emergency access" provisions for this determination are nc t AtF consistent with section 6(d) of the Act. The Act clearly - r
() states that an emergency access determination must be made
, jp before temporary emergency access can be considered.
determining that emergency access is necessary... the "Upon commission". This is not consistent with the definitions a suggested implementation of the two terms in the proposed L
rule. __ - - - - n
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- 3) What are the potential problems with the determination of ~~
serious atd immediate threat to the common defense and
.(p/ security? -]J7g . _ ,
#- In making this determination, can all or part of the
_ g d* . .-
nformation provided by the generator be kept confidential, ja or not_.be released to the receivina facility, under the clairn t
b- . . _ . . . .
y i national security? - - -
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'The host State or Compact in which the requesting generator d resides should be re_ quired to exhaust all options and accept /7 j responsibT11ty tar deaI1ng wit h the problem detore oeing
~
allowed to make a request.
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~ capability should not be a-consideration in dealing with
- 9-omergency. access. . -
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-If a legitimate emergency access condition is determined j y
the Host State or compact cannot provide for a safe solution,andVg to.the problem, either by themselves or through reciprocal .
44 J ( ;
agreement, then the use of Federal disposal facilities should _ p# _. _ . , _ .. ,
be the first priority before other non-federal disposal facilities. -I Og t ;
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l The are no provisions for equitable distribution of the waste' _ _ _ _ . _ . _ _ _ . _ . - - - - -
if non-federal facilities are needed for disposal . O' ~
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As written, the 20% volume criteria could eliminate the
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smaller non-federal facilities from consideration almost l immediately. Provisions can be added which would divide up ; g* g emergency waste if necessary to ensure that all operating facilities receive their fair share. Such provisions could also be consistent with any established reciprocal agreements a receiving facility had in place at the time.
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Thorbareno_p...__
- 7. -.
with respect to reciprocal agreements orements time requirrovisions t forthe of emergency Act. disposal conditions as covered i -MI, 2.___.
n Section 6(f) 17' j'l
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I a determination appealable?
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_ What should waste requiringthe NRC do access.
emergency if no site is found to be suitable fo The NRC should develop contingency plans BEFORE an emergency f-), f (
- -- g, occurs. Such plans could include the development of an NRC facility especially for emergency conditions. The NRC could l i-W also develop equitable reciprocal agreements now for the determination of emergency disposal sites in the future. such
-_. agreements should include fedstal disposal facilities.
'~~
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WU0s.l.-_
~~ - -
The Central Midwest Compact
_- by the Illinois Department Commission f ully endorses the commnts submi t ted of Nuclear Safety (IDNS) on February 11, 19ES.
. . - . ~ - . _ - _ _ .
. . . ~ . . . . _
. . _ _ . _ , _ , . , , _ i
. - [j6 CUh5d f e . . . _ _ . _ _ _ . . _ . _, . . _ ., _ . _ _ . _ . _ _ _ _ . . _ . . _
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The ___.
IDNS commn t.s deal wi t h sens it ive .
promptly if the Central Midwest Coupactpo li t ical issues that must be resol ved under the LLRWPAA of 1985. Mo reove r , thei n t o re e t t he r ema ining mil es ton es i t
- - - system could be undermined by any hints that NRC isi n t eg r i ty of t he en t i re Compa ct c ommi t t ed t o res pect ing t he stjitu t ory ex c lu s ion nf less than f ully (
waste. grx;tte_r-t r than-Cla s s C
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- . We urge you! to adopt' the IDNS' comments intact so our ability to meet the -
..- -remaining allestones le not impaired. y l - ~-
-- - y ... . - . . . . . . - . _ _ _ , - . _ . ~ - - - . -> . ~ . . -
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-~ -
Notic['of a proposed rule on emergency access to non-federal a
" low-Icvel radwaste disposal facilltles appeared in the Federal
~-
Register on Decenber 15, 1987. Philadelphia Electric Company believes b #I
~ ~ ~ ~ ' ~
that the proposed criteria for allowing emergency access to disposal ~~~
sites are well developed and will be effective in maintaining control '
_. . _ . of the amount of radioactive waste sent to such sites.
i - . - _ . . , . . . _ _ . . . . _ . . . . _ _ . _ . . . _ _ . _ . . _ . . _ _ _ . _ . . _ . _ . . ,
6##hM & .[M _ ._. ._ _ . . _ , . _ _ . _ _
. . - .. . . ... M t.,n.4,I. [@. ."2,_ ... . . . _ .. _ __ _ _ _ . _ . . _ _ _ _ . _ _ . . _ _ _ _ _ _ _ _ _
'Ono MtWCt OP' g _ . . _ .
administration: the 10-day publ ic conTnent period.
. . . - ~ . - _ . . . - . 2 _ .ns . . . , . . . . , . . ,
- ,_ ..a. If a situation is truly an emergency, delaying the disposal of _.,_,_. _
waste may result in an increased hazard to public health and safety.
1.. Additionally, the current clinute of public awareness and tendency _ _.
tcwards legal intervention could conbine in action aimed at the 6_-------..- mme nnn nf t.he asnacrau nn nr wasta (n m. m eN neame ns e
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We are confident that the proposed criteria are strict enough to )
protect the public health and safety without delaying the process to - - - ~ ~ ~ ~
consider pubile concerns. for each occurrence, f
.. . ._.. . , _ . . . - . .._ _ - - - _ _ . . . - - - - . - m. = . - - . - . - --
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NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his .
opposition m.__-____.
to Proposed Rule: Criteria and Procedures for m____.. m_ m._ . . , - - ._ ./.'.-
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~~ {The rule would allow the Federal Government and the NTC to ~ g regulate a State This is'an infringement of State's rights which has both finan function...or at lease a Compact function.
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,g c al and health impacts.
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Since State and compact dumps are being developed for_commer --- !_ . .
ctheal waste, this is the only waste that should be placed into y tites. Federal waste should be disposed of at their 4 own facility, since it would be unknown what might be contained ' 7 e
! z . ... in waste coming from the DOE and the DOD. It is our belief that
- y. . federal waste is ofter greater that Class C waste.
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We munt a11 aet now ta protect future generat1ons. . . . . . . _ . _ . _ , _ . _
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General Comment The provisions for emergency access outlined in Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act) are intended as a last resort to provide access to a regional or non-federal low-level radioactive waste (LLRW) facility. The proposed rule appears )
^
to be compatible with these provisions in that the criteria set forth are st g nough to render it imprphahin %at Wast Cqenerators would gg \
~
qualify for emergency access. We support the concept of emergency access -
al presented in the proposed rule and make special reference to the fact
_ that the process must not L.e used to circumvent the development of .
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regional Compacts. J
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specific Comments ,,
- 1. The Act and the proposed rule imply that granting temporary emer9ency g gw(t.[uf.4 access is a one time action that cannot be extended. If this is
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[0 correct, the rule should clearly indicate same. If this is %
,. incorrect, the rule should define the number of times and/or the
* , length of time extension (s) can be granted. .
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_ L Pesponse t o NRC f;pect f ic Pequest a f or Comments 1.
What scenarios are envisioned where emergency access would be U required?
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Response
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*The regional or non-federal facility utilized by - ' " -
generators is closed by regulating authorities, the V facility operator or extraordinary events. " ' ~ ' ~
- Access to a f acility has been denied for non-technical reasons. N ~~~
- Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility.
2.
- What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety? _.
Response: No comments at this time. _ _ . _ 3. What are the potential problems with the ar raagement proposed for
~j making the determination of serious and immediate threat to the common defense at d security? - ~
Response: No comments at this time. 4. What are the poteattal difficu4 ties with ti4e proposed approach for \ designatir.g the receiving site? m Response: No comment at this time.
- 5. .
What should NRC do if no site is f ound to be suitable f or waste requiring emergency access? ' A, p.n Response:
- Consider disposal at a federally operated facility. +
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Allow indefinite 'in situ' or "interrnediate location *) ' - ~ ' - ~ 47 .m... -e."* +-*"**- .y. . . . . - - - , - ---- -
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'RB/EMER ACCESS RULE STATUS OF EMERGENCY ACCESS RULEMAKING 10 CFR PART 62 i
o Proposed Rule issued for public coment (52FR 47578 15, 1987 o Coment period cl os ed . . . . . . . . . . . . . . . . . . . . . . . .. ....Februa
. . . .) .ry. 12,
. December 1988 '
o 14 Coment' letters received as of. . . . . . . . . . . . . . . . . . . . . . February 16, 1988
- o. 2 Requests for extension of comment period............. Recommended Cenial COMMENTERS ON 10 CFR PART 62,
)
COMMENTERS-
- 1. State of Maine 1 2. Concerned about radiation i 3. Shirley & Lloyd Gilbert I 4. Midwest Interstate LLW Commission (Indiana, Iowa, Michigan, Minnesota, Missouri,.0hio Wisconsin)
- 5. State of Illinois
- 6. Faith Young
- 7. Parvin Lewis
- 8. William J. Gold ,
- 9. St. Lawrence County (NY) Environmental Management Council
- 10. Environmental Planning Lobby .
- 11. American College of Nuclear Physicians & The Society of Nuclear Medicine
- 12. Kathy Lyons
- 13. E. Nemethy 14 Nuclear Information and Resource Service (NIRS) .
REQUESTS FOR EXTE'NSION
- 1. NIR$Wd
- j. 2. Food and Water, Inc.
PRINCIPAL COMMENTS ON 10 CFR PART 62 o Not applicable to > class C waste
~
o Applicable only to comercial (as oppose.1 to 00E & 000) wastes o Should address reciprocal access proi h1on of LLRWPAA o Should encourage cooperative agreements among states and compacts o Should use Sec. 3(a)(1) definition of LLW rather than SEC. 2 definition o State of Illinois coments - procedural jg
m { (224/St.bv % f ol ]es Q M ._ ssp $ / YM 0% i cla Y4 . m ode 4 a a w nig h a g m " y pupgu6pA s "WM h h h 9h88 NUCLEAR REGULATORY COMMISSION '
'i .e g ,b,,y ,, & hM wcdt 10 CFR PART 62 cow,A Criteria and Procedures for Energency Access to Non-Feoeral- i and Regional Low-level Waste Disposal Facilities l i
AGENCY: Nuclear-Regulatory Commis.sion. ACTION: Proposed Rule. I I
SUMMARY
- I The Nuclear Regulatory Commission (NRC) is proposing a rule to g' l establish prccedures and criteria for fulfilling its responsibilities I d
associated wi.th acting on requests by low-level radioactive waste (LLW) generators, or State officials on behalf of those generators, for emergency acce,ss to operating, non-Federal or regional, low-leyel 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 lack of access results in a serious and immediate threat to the public health and safety or the common defense and security. OATES: l Comments should be submitted on or before ! { Comments received after this date will be considered if it is practical i
.to do so, but assurance of consideration cannot be given except as to
{ comments received before this date. 55 1 Enclosure B l (
(7590-01] L ! ADDRESS: Submit written comments to the Secretary of.the Commission U.S'. , Nuclear Regulatory Commission, Washington,-DC-20555 , Attention: Docketing and Service Branch. l Copies of comments received and the regulatory analysis may. be examined at' the NRC Public . Document R , 1717 H Street NW., Washington, DC 20555.' FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory , Washington, DC 20555, telephone (301) 427 07 L W3- 77 83 SUPPLEMENTARY INFORMATION: 1 I. Background II. Legislative Requirements ! III. Legislative History IV. NRC Approach \ V. Assumptions VI. The Proposed Action VII. Rationale for Criteria i VIII. Specific Request for Comments IX. Requests For Emergency Access Made Prior to the Effective Date of the Rule X. Finding of No Significant' Environmental Impact: Availability XI. Paperwork Reduction Act Statement XII. Regulatory Analysis i XIII. Regulatory Flexibility Certification ! XIV. List of Subjects in 10 CFR Part 62 2 Enclosure B
F i
~
- [7590-01)'
- 1. Background
[ The Low-Level Radioactive Waste Policy Amen'dments Act o (PL 99-240,' January 15, 1986), "the Act" directs the States to d evelop their own LLW disposal facilities or to form Compacts e-in and cooper the development of regional LLW disposal facilities- so that the ne facilities will be.available by January 1, 1993. The Act establishes procedures and milestones for the selec development of the LLW disposal facilities. The Act.also establishes a system of incentives for meeting the milestones,;and penalties' for I failing to meet them, which is intended to assure steady ward progress new facility development.
.The major incentive offered by the Act is that the States and regional Compacts which meet the milestones will be allowed to to use the existing disposal facilities until their own faciliti es are available, no later than January 1, 1993.
If unsited States or comoact regions fail to meet key milestones in the Act, the States or Com Commissions with operating non-Federal or regional LLW disposa facilities are authorized to demand additional cepted fees fo for disposal, and ultimately to deny the LLW generators . in the deli nauent State or Compact region further access to their facilities . Section 6 of the Act provides that the Nuclear Regulatory on Ccmm (NRC) can grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities ifose access to t facilities has been denied and access is necessary in order to eliminate an immediate and serious threat to the public health and safety common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by ve any alternati 3 Enclosure B
[7590-01] consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must be aDie, with the information provided by the' requestor, to make both ns prior determination to granting emergency access. The purpose of this proposed regulatien is to set fcrth the procedures and criteria that will be used by the O cmmis-sion to determine if emergency access to a LLW disposal facility sn be granted. II. Legislative Requirements In addition to directing the NRC to grant emergency access as discussed in the Background section, the Act furthero directs NRC t designate the operating LLW disposal facility or facilities e where th waste will be sent for disposal if NRC determines that the ances circumst warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the waste State was in which t generated that emergency access has been granted, ande to notify the S and Compact which will be receiving the waste that emergency access their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine ywhether access emergenc will be granted and to designate the receiving facility. 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 40 enof 4e.cneed Actdes allows that only onef"^ % extension of emergen access [istobegrantedper~re, quest. An extension can be approved only *T the LLW generator who was originally granted emergency e access and th State in which the LLW was generated have diligentlyu though y unsucce 4 Enclosure B
~pe a Cornu /s.r/m dauwaafd G5 h 4 sy[ Hf -drcatoJArms cxdd IV- [7590-01]
, o n;+}a cd by A hj acted during the period of the initial grant to eliminate e or the ne d f emergency access.
The Act also provides that requests for emergency access srail . contain all information and certifications that NRC requires to taxe s determination.
" Temporary emergency access" to non-Federal or regional disposal LLW facilities may be granted at the Commission's discretion;r a-ht:
xisoring :=t hth 9 te-p 4"=e' u t% ec et:-- - :: tM t ::c p =y 2ccace 4e nara""~ because of a serious and immediate reatthto the public health and safety or the common defense and
-eep;res .
Thesecurity grant of temporary emergency access E n;t m45 dags Wh- if u yGn 4d,
.m e u "i f:y:.
Although the Act does not require NRC to develop a yrule out to carr its Section 6 responsibilities, NRC is proposing this rul e to establish the procedures and criteria that will be used in making equired the r emergency access determinations. Since the requisite condition that must be met in order for a requestor to be eligible for ccess emergency a consideration is that the reco msk. ha.s have already been denied access to the LLW disposal sites by the States or Com;::= cts with operating disposal facilities, implicit in any decision to grant emergencyhe access is t fact that such a decision will override the sited States' and/ Compacts' expressed desire not to accept waste from ar State that particul or generator. Although Congress provided NRC the statutory respon-sibility for-implementing Section 6 of the Act and gave the Commission authority to decide whether or not access will be provided , emergency access decisions are likely to be controversial. By setting out tne procedures and criteria. for making emergency access decisions ule in a r which reflects public comment, NRC intends to provide an o pportunity 5 Enclosure 8
i- .. [7590-01]- for input from pot ~entially ,affected ? individuals and organizati ons.' add. predictability to'the decisionmaking' process, and to ahelp' . the-ensu NRC will be able to make its ' decisions:on emergency . access r
; ecuests.-
within the time allowed by the Act.
~
.III.
Legislative History: The legislative history of the Act emphasizes. the ~ Congressional
~ intent that emergency access be used only in very limited and r .
circumstances and that it was not intended to.be2 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 v
~
by the unsited States as an alternative to the' pursuit of the development-of new LLW disposal capacity.- Theslegislative. history indicates tha Congress believed that with the various management options av LLW generators, including, for example, storage or ceasing to g q the waste, the instances where there was no alternative ency to eme I
. access would be unlikely. Congress.
expected that responsible action'from' i the generators and the States / Compacts should resolve roblems most a
.)
thus precluding the necessity for involving the Federalgrant- sector in ing emergency access. Section 6 was included to provide a mechanism for I Federal involvement as a vehicle of last resort. In developing the emergency access rule, NRC has tried to be consistent both with the actual text of'Section 6 of the'Ac 4 the intent expressed by Congress regarding decisions made pursua Section 6. The proposed rule sets strict requirements for granting emer-gency access and serves to encourage potential requestors to seek othe 6 Enclosure B
. ,v-- ,- q s
OW \
~
Section 6(g) of; the Act requires the NRC to notify the Compact Conimission for.the' region in; which the disposal facility,is located of any NRC grant offaccess "for such approval as'may be requi~ red under th'e? terms.of its compact." :The Compact'Commiss. ion "shall-act to approve 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,s
~
+
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 Section 6(h)'of the Act have not been exceeded.
However, it is clear from the legislative history of the Act that l Section 6(g) should not be construed _as providing the~ Compact Commission y i with a veto over the NRC's grant of emergency access. The basic purpose of the Section 6 emergency access provision is to ensure that sites that would normally be, closed under the Act'will be available in emergency situations. A Compact Commission veto would frustrate the purpose of-the emergency access provision and would be generally con'trary to the legislative framework. established in the Act. As emphasized in the House Committee.on Interior and Insular Affairs Report on the Act, ; ratification of a Ccmpact,shoula be conditioned on the Compac.t'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 void. -
.H.R. REP. No. 314, 99th.Cong., 1st.Sess., pt. 1,-at 2997 (1985).
_ _ _ _ _ _ _ _ _ _ . _ _ . _ _ . _ _.___._o
[7590-01] . means for resolving the problems' created by denial of access - s-to LLW posal facilities. The proposed rule places.the burden.on'the party requesting emergency access to demonstrate that the criteriain have been met and emergency access-is needed. /
'.pplicants for emergency access will have to provide clear and convincing' evidence that they exhausted all other options for managing their waste.
By establishing-strict requirements for approving ~ requests. for emergency access, NRC intends to reinforce the idea that' problems'with.LLW disposal are to worked out to the extent practical among the States, and that' em access to existing LLW-facilities will not automatically.be available as ( an alternative to developing that capacity. NRC believes this interpreta-tion is consistent with a plain reaoing of the Act and the supportin i legislative history.
$mstAA I -- y
{ IV. NRC Approach 1 { In developing the proposed rule, the NRC's approach was to: l 1. assure 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 make the necessary determinations. 3. assure that the procedures and criteria that are established in 10 CFR Part.62 can be implemented within the 45-day period specifie the Act. 4 . establisn procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consisten 7 Enclosure 8
- r. m
[7590-01)
'i with the other provisions.'of the Act, including the limits onunt' the amo j
of waste that can be disposed of at each operating facility. 'l
- 5. (
establish requirements.for granting emergency access tra. Are-stringent enough to discourage the unsited States and regions >from a viewing emergency access as an alternative to-diligent pursuit of'ineir i i own disposal capability, and yet flexible enough to . allow NRC tof resp appropriately in situations where emergency access is genuinely'needed-q
' to protect the public health and safety or the common defense and I l
security, i l l l :1 V. Assumptions In developing the rule NRC made several assumptions. These assumptions are discussed below. i NRC staff: are assuming that the wastes requiring disposal under the emergency access provision will be the result of unusual circumstances . The nature of routine LLW management is such that it is difficult to :a ceive of situations where denial of access to disposal would create a , serious anc. immediate threat to the public health and safety or the national security. In most cases generators should be able to safet y store routinely generated LLW or employ other options for managing ;t waste without requiring emergency access. ! Thus, if all the LLW genera-tors in a State were denied access to LLW disposal facilities , NRC staff 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 in each case. In preparing the rule, NRC has also assumed that regvests for emer-gency access will not be made for wastes which would otherwise qualify 8 Enclosure 8 l
, w
[7590-01]. for disposal by the Department of Energy.-(DOE).uncer the'. unusual umes provision of the Act.[Section 5(c)(5)). This means'that..NRC coes not-intend. to consider requests ;for emergency access for wastes:ge y commercial nuclear power stations.as a result of! unusual or unexcect ( operating, maintenance, repair or safety activities. (. Section 5(c)(5) of the Act specifically sets'aside 800,000 cu.ft. of disposal capacity abovel l :the~ regular reactor. allocations th,'ough 1992 to be,used for those was With this space reserved for wastes qualifying' for the:" v unusual o allocation," NRC believes emergency access-should be reserved for oth 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 has identified some.of the wastes 'and the' s create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated.
Largely because of-the uncertainty. associated with identifying all of the circumstances under which emergency access may'be required, NRC has avoided establishing criteria with absolute thresholds.
'Instead,.the rule as proposed contains a combination of qualitative and quantitative criteria with generic applicability.
NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-b basis. i VI. The Proposed Action. The proposed rule contains three Subparts, A, B, and C.These Subparts set out the requirements and procedures to be followed in c requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here. 9 Enclosure 8
, o . .
+
.* - t [7590-01);
, Subpart'A '. General._ Provisions Subpart A'contains'.the purpose'and' scope.of the'.~ rule, defi instructions. for' communications with..the Commission,fand. provisio relating to interpretations'of the rule.
Subpart A: states that:the rule applies'to all persons as. defined by this regulation who have been deni access to existing commercial'LLW' disposal. facilities and'who submit.a. request to.the Commission.for an emergency access determination under: Section 6'of the Low-Level Radioactive Waste Policy Amendments Act of' 1985.
.Subpart B Request for a' Commission Determination.
Subpart B specifies the information that must be submitted and the procedures that must te 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 thposal, impacts on health and safety or common 1 defense and security if emergency access were not granted, and consideration of available alternatives to emergency access.This information will enable the Commission to dete. cine:
(a) whether a serious and immediate threat to the public health and 1 I L safety or the common defense and security might exist, i; (b) i whether alternatives exist that could mitigate the threat, and (c) which non-Federal disposal facility or facilities should provide the disposal required. In addition to the above, Subpart B also sets forth procedures for j the filing and distribution of a request for a Commission determination. ! l 1 10 Enclosure B i i ____-.-.-.-_-______________-_._______I__ ___.u__'_ _ _ _ _ ____...m._ ___ _ -._ ____ .
[7590-01] It provides for publication in the Federal Register of a notice of receipt of a request for emergency access to inform the public th Commission 5.1o action on the request is pending. w
^: ; :;:: 4 +subpart B guard 4.*
.e4 provids far publ 3 c comment d thm on the request / fnr a-r:="rv access,:r em i i .;:'r ': t ?-'"it ': x . :-{4E4cn &Qw comment y net )
equired by the Act or the Administrative Procedure 9r n- Act) re, M '*0 th; Amt pivv-iCua suc 2 U+h 0"D $5 II25 *^ ""*N"'" # '"'#^^ vu a reyuc= L Ie7 Or^"[*""" "C'^5", C^^ 5 M Tat i;I. Of
*h^
e blis ww m en W eoy 7"C'J;r.t F# 7;; ;,isiing Lue 36abwiviy isyw..;Z I*C aduneen ennspanoneoc
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And 5 2 C LT i ty . In the event that the case for requesting emergency access is based totally or in part on the threat posed to the common e and defens security, Subpart B requires that a statement of support from the Department of Energy (DOE) or the Department of Defense (00I ( appropriate) be submitted as part of the initial request for eme i access. { If the request is based entirely on common defense and i t concerns, NRC will not proceed with the emergency access evalua ; the statement of support is submitted. Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission mus conclude that there is a serious and immediate threat to the public health and safety or the common defense andand , security second that there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commissionerincj in consid requests 11 Enclosure B
V [75907 01). for emergency _ access, for granting extensions of emergency , and access for granting temporary. emergency ' access; establishes the criteria standards to be used by the Commission in making those determ and'. specifies the procedures to be followed in issuing them.
-Subpart C provides that NRC, in making the determination'that the is a serious and immediate threat:to the public health and, safety will considen.
(1) the nature and extent of the radiation hazard that-would result 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 medica'l, therapeutic, diagnostic, or research activities will be disrupted by the denial of emergency access. In making tf* determination that there is a serious and immediate threat to the common defense and security, Subpart C provides that the I Commission will cor. sider whether the activity generating the LLW is 3 necessary to the protection of 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 consider 000 and DOE viewpoints in a statement of support to be filed with the request for emergency access. j 1 Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider 12 Enclosure B
[?590-01] whether alternatives to emergency access are available to the reques . The Commission will consider whether the person submitting a. the ce has identified'and evaluated the' alternatives availaDie -n potentially mitigate the need for emergency access. The Commission ill-consicer whether the person requesting emergency access has consider 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 Commission will also consider -nether the requestor has demonstrated that the implementation of the vealternati
~
is unreasonable because of adverse effects on the public health and safety or the common defense and security, because it is technically economically beyond the capability of the requestor, or because the i L alternative could not be implemented in a timely manner. Of particular concern to Congress was the possibility that ceasi the activity responsible for generating the waste could lead-to the cessation or curtailment of essential medical services. In the proposed rule, the Commission considers the impact on medical service - the activity in making its determination that th'ere is a serious and immediate threat to the public health and safety under Section 62 25. . However, the Commission is also concerned as to whether the implem tion of other alternatives may have a disruptive effect on essential medical services. The Commission specifically requests information on these impacts in S 62.12 so they can be considered in its overall ! i determination about reasonable alternatives. According to tne procedures set out in Subpart C, the Commission l will only make an affirmative determination on granting emergency acc i if the available alternatives are found to be unreasonable. If an 1 I l 13 Enclosure 8 _ _ - - _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1
[7590-01]' alternative is d9termined by NRC.to be reasonable, then the reou < emergency access will be denied, If the Commission determines that there is 'a.?eciate serious.and threat to the public health and safety or'the common defense.
)
which cannot be mitigated by any alternative, then the Commission -i;l decide which operating non-Federal LLW disposal facility shovid recei'
'th'e LLW approved for emergency access ' disposal. i 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 considerat:en'
, because: , (1) the LLW does not meet the license criteria for the site; - i i. (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 r disposal exceeds 20 percent of.the total volume of'the LLW ar accepted disposal at the site in the previous calendar year. If the designation cannot be made on these factors alone, then the Commission will consiI i the type of waste, previous disposal practices, transportation j requirements, radiological effects, site capability for handling the i waste, 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 duringofthe period the initial grant to eliminate the need for emergency access . In making a determination that temporary emergency access is ne sary, the Commission will have to consider whether the emergency acce 14 Enclosure B
r [7590-01] situation falls within the criteria and examples in the ' Commissio y
,]
policy statement.on abnormal occurrences, but will not. nave a to re determination regarding mitigating alternatives.' VII. Rationale for Criteria The proposed rule establishes the criteria for making.the em access determinations required by 'the Act. The rationale for these decisions is discussed below: (a)
. Determination that a Serious and Immediate Threat E Establishing the criteria to be used in determining that a serious ud immediate threat exist to the public health.and safety or the'ccmm defense and security is key to NRC's decisions to grant emergency s.
Neither the Act nor its legislative history provide elaboration ng reg Congressional intent for what would constitute threat."
"a serious e ate (1) To the Public health and safety--
The r.riteria in the proposed rule for determining whether a serio and immediate threat to the public health and safety exists, address three situations. Section 62.25(b)(i) addresses the situation wherei , lack of access would result in a radiation hazard at thes facility th generating the LLW. Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result fromofdisruption the activity that generates the waste, for example, an essential'm e cal ci service. Section 62.25(c) addresses the criteria for granting temporar emergency access. f i l 15 ! Enclosure B w_______________ --
[7590-01] The criteria in the' proposed. rule for determining whether erious as and.immediate threat'to the public health and. safety exists is qualitative in nature in order to provide ~the Commission with tre flexibility 'necessary to consider a wide range of potential f actual situations. However, in making this qualitative determination, tne - criteria require the Commission to consider several existing qu, standards.
~
These consist of the Commission's standards for ra protection in 10 CFR Part 20,'any standards on the release of radio materials to the general environment that are applicable to the that generated the low level waste,' and any other Commission s specifically applicable to the facility or activity which is the subje of the emergency access request. This latter category would include license provisions, orders, and similar requirements. The Congressional concern in enacting Section 6 of the Act wa ensure that a serious and immediate threat to the public health and safety did not result from a denial of access. In addressing this concern, the Commission will evaluate the request for emergency its entirety, i.e. the threat to public health and safety and the ! J
-alternatives to emergency access that may be available to mitig a b
threat. In other words, in determining what constitutes a serio us and immediate threat to public heslth and safety, the Commission mus{ consider what threat would be unacceptable ass uming that no alternatives are available. In the Commission's judgment, any situation that I would result in exceeding the occupational dose limits or basic lim ! public exposure upon which certain requirements in 10 CFR Part 20 founded would be an unacceptable threat to the publicy,health and, and should be considered for emergency access. 16 Enclosure B l
[7500-01)- i ii. Tha legislative history off Section 6 of the Act does not provide y a illustrations of a situation where a serious 'and - ne- imme public health and safety would- be created at. the facility at -nien the g waste is' stored, although it is clear that Congress was concernec aser the potential radiation hazard that might result'at a particular facili that was denied access to LLW disposal. The Commission does not anticipate any situation where the lack of access would create a serio'us and immediate threat to the public health and safety. However, in order ; to be able to respond to the unlikely, but still possible,'situatien i j where a serious threat to the public health and safety might result , the i proposed rule establishes criteria to address this possibility. Under ) its normal regulatory responsibilities and authority, the Commission I would act immediately to prevent or mitigate any threat to the public health and safety, including shutting down the facility. However , t_nere may be circumstances where a potential. safety problem would still exist , j after the facility was shut down or th'e activity stopped,-if the~ low level waste could not be disposed of because of denial of access l . In this situation, emergency access may be needed. The Commission would w emphasize first, that it is extremely unlikely that a serious and immediate threat to the public health and safety will ever u res at the lt i generator's facility from the lack of access f.o a disposal facility , and second, if such a situation does exist, the ;ommission will move immediately to eliminate the threat. If the Commission does receive a request for emergency access base on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection stancarcs , 1 17 Enclosure 2
- 9
[7590-01]- .! no' serious and immediate threat' would exist fromThis . the was f is separate from a finding that a serious-and immediateothreat the. t 1 d public health and safety would exist .if the ' activity' vere forced t down. Section-&6(d) of the,d rrot % u ctAct allows the Commission t apon . ed MS emergency accessfsolely upon a finding of a ser % s s ious and immediate tnreat. i to the public health and safety. In order to grant temporary emergency k access, the Commission is not required to evaluate the availability of I alternatives to emergency. access that would mitigate the threat. T h e -- Commission believes that grants of temporary emergency access sh reserved-for the most serious threat to public health and safety, and nas accordingly established criteria for granting temporary emerger.cy acc that require the consideration of more serious events. For purposes of granting temporary emergency access under Section 62.23, the Commis will consider: the criteria and examples contained in the Commission's Policy Statement for determining whether an event at a facility or
; activity licensed or otherwise regulated by the Comission is an abn occurrence within the purview of Section 208 of the Energy Reorgani:a Act of 1974 .
(45 FR 10950, February 24,1977.) This provision requires the Commission to keep Congress and the public informed of unsch incidents or events which the Corrmission considers gnificant from the' si l { standpoint of public health and safety. i Under the criteria established ! in the Commission's policy statement, an event will be consid ered an )" abnormal occurrence if it involves a major reduction in the degree o protection provided to public health and safety. Such an event could include-- l i 1 1. Moderate exposure to, or release of, radioactive material; i 18 Enclosure B
(7590-01] I 2, Major degradation of safety related equipment; or
- 3. !
Major. deficiencies in design, construction, use of, or management controis for licensed facilities or activities. l l In deciding.whether to grant temporary emergency access, the ! Commission will evaluate whether the emergency access ' situation falls within the criteria ri - ..,' .., in the Commission's policy statement'on abnormal occurrences.
-(2) To the kmmon defense and security--
1 Although NRC is required by the'. Act~ to determine that there is either a serious and immediate threat "to the public health and . safety," or to "the common defense and security," realistically HRC cannot make the latter judgement without some information from'000 and DOE which will assist NRC in identifying those situations involving th denial of access to LLW disposal which constitute a serious and imme 1 threat to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives'. While NRC has the Congressional mandate for this determination , NRC staff believe it necessary to consider 000 and DOE information as part of the decision making process. NRC considered several approaches for involving 000 and DOE in tne 1 process of determining whether requests for emergency access should be granted on the basis of a serious and immediate threat to the common 'l defense and security. It appears that the best way to previde such interaction would te to require that requests filed with NRC for emer- ( gency access which are made entirely, or in significant part, on the basis of a serious and immediate threat to the common defeni ' security, should include appropriate certification from 00E or 000 i 19 Enclosure B
~
_ _ . --- - 7 l [7590-01) substantiating the requestor'.s claim that such a threat will result if emergency access is not granted. The necessary certification in :.ne form of a statement of support should be acquired by the requestor prio applying to NRC for emergency access so the certification can be of the actual petition. Congress deliberately gave the NRC the responsibility for makin the common defense and security determination rather than leaving t
. determination with 000 or.00E.
So while the Commission intends to give the I?GD and 00E certifications and recommendations fu 1 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 n ~ granted if alternatives are available to mitigate the threat in a manner consistent with the public health and safety. As proposed in the rule, requestors for emergency. access will have to demonstrate that they lI , explored the alternatives available and that the only course of action remaining is emergency access. Only after this has been demonstrated to NRC will the Agency proceed with a grant of emergency access . Alternatives which, at a minimum, a requestor will have to evaluat 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 storage facility, (2) obtainin access to a disposal facility by voluntary agreement, (3) purchasing disposal capacity available for assignment pursuant to of Section 5(c the Act, and (4) ceasing the activities that generate the LLW . i 20 Enclosure B
[7590-01) While 6(c)(1)(B) of the Act sets these'out as'possible alt erna-tives which a generator must' consider before requesting _ emer gency access, NRC has identified other possible alternatives to emergencp acc l ess -nica should be considered, as appropriate, in any requests'for emerge access. These additional alternatives are discussed below. Section 5(c)(5) of the Act, " Unusual Volumes," provides owners an operators of commercial nuclear reactors with special access to disposal i in the event that unusual or unexpected operating, maintenance , repair or safety activities produce quantities of waste which cannot be otherw I managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access was provision to apply to the Section 5(c)(5) wastes unless the capacity required or f disposals under the unusual volume provision would exceed the 800 000 cubic feet Lilpcated for those purposes. Thus, NRC has taken the position in the proposed rule that as long as unusual volumes disp capacity is available for LLW which qualifies for such disposal, 3 emergency access should not be requested. Applications for emergency - access for wastes which NRC determines would otherwise be eligible f disposal under the unusual volumes provision, will be denied . Another alternative applies only to Federal or defense related generators of LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting accessato non-FedeI facilities under the emergency access provision. For all the alternatives that are considered, NRC is requiring detailed information from the generator regarding the decision ess proc leading to a request for emergency access. The requestor will be 21 Enclosure B
, i
[7590-011 expected to demons'trate that he has considered all pertinent alter-natives and to provide ~a detailed analysis comparing all of tne alternativesLconsidered. f The' requestor will be expected to demons: rate-that he has considered combining alternatives in some way or in some sequence either to avoid the.need for emergency access, or to resolve tn threat, even on a temporary basis, until other arrangements cantbe p gccrncrrnic hs&1 i-Therequestorwillbe'expectedtoevaluate-thecostsan j
+crk(M b.
-potential alternatives)and to incorporate the results into the request. hatA (c) Designation of Site c.J:au In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access 'NR ,
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 access waste if (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 disposal exceeds 20 percent of the total ' volume of the LLW accept 1 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\ ! waste, previous disposal practices, transportation requirements'"' radio-logical effects of the waste, the capability for handling the waste at each site, and any other information that would be necessary in orcer to come to a site designation decision. f 22 ' Enclosure B l
.j
[7590-01)~ Within the requirements of the_above criteria, the NRC will \
, to the
{ extent practical, Q.hm attempt to distribute the waste as equitably as possible +:i d o _ the available operating, non-Federal-or regional iLW i disposal facilities. To.the extent practicable, NRC intends t'o rotate the designation of the receiving site, and,'for'the three current!y-operating facilities, to allocate emergency access disposal in proportion 1 1 to the volume limitations established in the Act. In most cases, NRC t would expect that the designation of a single site will~ minimize'j i of and exposure to the waste and best serve the interest of protel
.(
the public health and safety. However, if the volume of waste requiring ' emergency access disposal is large, or if there are other' unusual or I extenuating circumstances, NRC will evaluate the advantages.and { disadvantages of designating more than one site to receive waste from th'e same requestor.
~
l In addition to the above, NRC.will also ccnsider how much waste i been designated for emergency access disposal to each site to da j for the year and overall), and whether the serious and immediate th - i
-)
posed could best be mitigated by designating one site or'more to reci the waste. { In order for NRC to make the most equitable site designation decisions, the Agency will have to be well informed regarding us the sta of disposal capacity for each of the commercially operating waste d ! facilities. ns .- NRC intends to arrange to obtain thy information et ' e t " > ry q^ a e cMpt :f ; nuest fc : : cy sccert te facil.iaLe r.ne srte deip:thnp. m u. m 4. h W'# ' t 23 Enclosure B
[7590-01] '
.It should be noted that in setting out the site designation for Section 6, Congress assumed there would always be'a site d eemed aopro-priate to receive the emergency access waste.
However..-this may cot te the case if all sites are eliminated by. application of the limitati ons provision set forth in the Act. It is not clear what options are available to NRC if all sites'are deemed inappropriate to receive . This may have to be addressed by Congress at some time in the' fu . (d) Volume Reduction Determination Section 6(i) of the Act requires that any LLW delivered for dis as a result of NRC's decision to grant emergency access "should be reduced in volume to the maximum extent practicable." 'NRC will the extent to which volume reduction intthods or techniques will be or have been applied to the wastes granted emergency er access to arrive at a finding in regards to this provision NRC may receive a request for emergency access where the tion of volume reduction techniques may be sufficient e the to mitigat i threat posed to the public health and safety. As a result, NRC plans to . evaluate the extent to which waste has been reduced in volum 1 of its mandated evaluation of the alternatives considered by t r From that evaluation, the NRC could reach a finding-aste on whether ! has been reduced in a manner consistent with Section I . As is so for the other determinations NRC will have to make p i to Section 6, volume reduction determinations vill ben made o a case-oy-case basis. The optimal level of volume reduction will vary with the t waste, the conditions under which it is being processed,or the stored i i l
\
24 l Enclosure B i
-[7590-01) administrative options available..and whether' volume. reduction p i
sing creates.new wastes requiring treatment or disposal. In evaluating whether the wastes proposed for emergency access have been reduce ! volume to the maximum extent practicable,'NRC will consider the cha teristics of the~wastesf(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 mf technologies available for treatment of the waste . (including incinerators; evaporators crystallizes; fluidized bed dr thin-film evaporators;. extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (speci activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination,-effluent releases, worker exposure, and equipment availability); and the administrative controls which could be applied. VIII. . Specific Request for Co.nments NRC is interested in receiving comments on those parts of the proposed rule where NRC applied its discretion in order to implement the Section 6 provisions. NRC specifically requests comments on the following: (1) What scenarios are envisioned where emergency access i would be required? (2) What are the potential problems with NRC's ! I approa(.h 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'ar.d i immediate threat to the common defense and security? (4) What a re the 25 Enclosure 8
'l
[7590-01) t , po' ential dif 7iculties with' the' propose'd approach fo e receiving site? and (5) What'should'NRC do if no site is - e found to i' suitable for waste' requiring emergency access?' NRC is interested in facts and recommendations on specifi e i
- i. responsive to.these issues. !
I While NRC will consider'all comments' en th proposed rule, it will be better able to respond to- those' comments th recommend specific solutions' to any problem raised by the commenters , IX. Requests for Emergency Access Made~ Prior to the
-{
Effective Date of the Rule in setting.the schedule for this rule, the Commission re hasto tid anticipate when the first request might be made so the final rule wo be in place beforel that time. However, it may be necessary for a 1 generator or State to submit a request for a Commission emergency
~
determination prior to the effective date of this rule . Commission determinations made on requests receiv'ed before then final rule is i place will be guided by the criteria and procedures provided in th proposed rule. , _ i X. Finding of No Significant Environmental l i Impact: Availability If adopted, the proposed rule would establish criteria and proc l for a Commission determination under Seccion 6 of encythe Act th access to an operating non-Federal LLW disposal facility is necess avert a serious and immediate threat to the public health and safety the common defense and security. For the most part, the proposed rule is 26 Enclosure B
{7590-01) 1 an administrative action which serves' to codify the 'cr'iteria and proce-dure. ." one Act. .The adoption of such impleme'nting-procedures and. criteria by proraulgation of a final rule does not- have an environmen'tal ef fect. j s
.Therefore, the Commission has determined under the National nviron . I mental Policy Act of 1969, as amended, and theLCommission's regui tions in Subpart A of 10 CFR Part 51, that this preposed rule, if adopted iould not be a major Federal action significantly affecting the quality of the human environment and, therefore, an' environmental. impact statement is not required. :
The environmental assessment forming the basis' for this determination
.is contained in the draft regulatory analysis prepared for this proposed regulation. The availability of the draft regulatory analysis is noted l below.
t XI. Paperwork Reduction Act Statement T,'-'c proposed rule adds information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This rule has been submitted for review and approval of the paperwork requirements. 4 f { XII. Regulatory Analysis The Commission has prepared a draft regulatory analysis of the a proposed regulatio'ns. The analysis examines the costs and benefits of the alternatives considered by f.he Commission. The draft analysis is available for inspection, copying for a fee, at the NRC Public Oncument Room, 1717 H Street NV., Washington, DC 20555. 27 Enclosure B L__ ___ - _ --- --- - -------- ------- ---
~
j [7590-05) 1 XIII. i Regulatory Flexibility Certification NRC is using this proposed rule to imp. 3ent_the statutory-requirements for. granting emergency access to non-Federal o LLW disposal facilities under Section 6 of the Act. Based upon the information available and in accordance with the Regulatory exibility Fl Act, 5 U.S.C.'605(b), the Commission certifies that, if promulgated , this rule will not have:a significant economic impact upon a substan number of small entities. The proposed rule has the potential to affect any generator of L i 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 acc.demic,facilities industrial licensees, rescarch.and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees
. Of these categories, all but the power plants, fuel fabricationes.faciliti
- and government licensees could potent.ially include smali entities .
Although these categories may contain a " substantial neaber o ' entities," the Commission does not believe there will be a significa .\' economic impact to these generators because the Commission does n anticipate that many generators will be affected by the proposed ru { In order for the requirements of the rule to be imposed on a gene . the generator himself must initiate the action by requesting of a gra i emergency access from NRC. This would occur only because the generator has been denied access to LLW disposal. The Commission is required to make emergency access determin by statute. Since a grant of emergency access is intended to' correct the problems LLW generators may encounter because of lack of a ccess to 28 Enclosure B
[7590-01] LLW disposal, the provision ~ of emergency accessnerator will benef 1 of LLW including small entities. ) Establishing criteria and prccedures for requesting and gr emergency access'through a rule will also benefit small and large i generators. The proposed rule provides guidance.to the generator on wh
. 1 information will be required for making requests for emergency acces and provides an orderly framework for making those requests.
Also,.the proposed rule will enable generators to better plan to avoid LLW dispo access problems, thus providing the certainty required for economic and development. { The impact of the recordkeeping requirements on any affec ! should be minimal since the information that must be provided if a requests emergency access would most likely be collected and assembl part of any process to decide a course of action if necessary access to LLW disposal was not going to be available. t l 1he NRC is seeking public comment on the initial regulato analysis. The NRC is particularly seeking comment from small entities (i.e., small businesses, small organizati.ons, and small jurisdiction under the Regulatory Flexibility Act) as to how the regulations will affect them and how the regulations may be tiered or otherwise mod to impose less stringent requirements on small entities while still adequately protecting the public health and safety. Those small entities which offer comments on how the regulation could be modified to take into account the differing needs of small entities should specifically y discuss the following items: (a) The size of their business and how the proposed regulations would result in a significant economic burden upon them as compared larger organizations in the same business community. 29 Enclosure B
[7590-01) (b) ' How the ~ proposed regulations' could be modified to take into account their. differing needsLor' capabilities. ' (c) The benefits that would accrue, or the' detriments that--ould be. avoided, if the~ proposed regulations were modified as sugges Il s commenter. (d) How the' proposed regulations, as. modified, would more close i l
- equalize th'e impact.of NRC regulations or create more equal access to .i k
the benefits of Federal programs as' opposed to providing special advan~- - tages to any individuals or' groups.- (e) How the proposed regulations, as modified, would.still adequately protect the public health and safety, .. i The comnients should be sent to the Secretary of the Commission, U. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
]
Docketing i and Service Branch. XIV. List of Subjects in 10 CFR Part 62 Administrative Practice and Procedure y - blevelRadioactiveWast i S lear Mate 5 D i (tITTreatment and Disposal) j 6ergencyAccesstoLow-LevelWasteDisposal g t ([ow-Level Radioactive Waste Policy Amendments Act (Denial of Access. For the reasons set out in the preamble and under the authority of 1 the Atomic Energy Act of 1954, as amended, the Energy Reorganization A of 1974, as amended, and the Low-Level Radioactive Waste Policy Ame ments Act of 1985, notice is hereby given that adoption of a new 10 CFR Part 62 is contemplated. 30 Enclosure B i
[7590-01] 1. A new Part 62 is added to 10 CFR to. read as-fo11cws: Subpart A - General Provisions 1 Section: -
'6
2.1 Purpose and Scope
62.2 Definitions 62.3' Communications 62.4 Interpretations 62.5 Information Collection Requirements b 62.6 Specific Exemptions 1 I Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request 62.12 i Contents of a request for emergency access: General information 62.13 Contents of a request for emergency access: Alternatives 62.14 ! 1 Contents of a request for an extension of emergency access 62.15 Additional information , 62.16 Withdrawal of a determination request 62.17 Elimination of repetition I j (,2.( 8 16niol. D" J I Subpart C - Issuance of a Commission Determination i 62.21 Determination for granting emergency access 62.22 ( i Notice of issuance of a determination l
)
62.23 Determination for granting temporary emergency access { 62.24 Extension of emergency access 62.25 l Criteria for a Commission determination 62.26 Criteria for designating a disposal facility 62.17 UI y- v - DL ($14 Iohnf Enclosure B QG e m -a,y i n ,usy mgGa m){ A , a ? ", 2 a'_ Q_- ___- _ - - o
_ - ~ - _ - _ - _ _ -
----------~-'-~?\
' ' -[7590-011
' Authority:
Secs.'81,i161, as amended,-68 Stat. 935
~951, as amended. ,
948, 949, 950, 'l (42 U.S.C. 2111,-2201'); secs.1201; 209 Stat. 1242, 1248, ..asJ amended..28 as. amended (42 U.S.C.:5841
, 5849); secs.-3, 4','5,c6,.
99 Stat.?1843,1844,1845,1846,1847,-1848-1849l1850 1853, 1854, 1855, 1856,'1857 , 1851, 1852, . (42 U.5.C. 2021e,l2021d,.2021e,'2021f) . Subpart A--General Provisions 5.62.1 Purpose and scope.
'(a) The regulations -in this part establish for specifi
- c. low-level radioactive waste (1)' procedures and criteria emergency-for granting access under Section 6 of the low-Level ments Act of cy Amend- Radioactive 1985 (42 U.S.C, 2021) to any non-Federal'or .
egional r low-level radioactive waste (LLW) disposal facility or t o any.non-Federal disposal facility within a State that,is not a memb er of a Compact, and (2) the terms and conditions. upon which the Commi emergency access. ssion will grant'.this (b) The regulations in this part apply to all.epersons ned by as d fi this regulation, who.have been deniedxsaccess - ng regional or to e i ti non-Federal low-level radioactive waste disposal faciliti ) es and who submit a request to the Commission for a determination part. o this pursu
$ 62.2 Definitions. !
As used this part:
"Act" means the low-Level Radioactive Waste Policy A 1985 (P.L. 99-240). mendments Act of 32 Enclosure 8
R [7590-01) 1 i
" Agreement State" means a' State that.- (A) has entered into an 1 agreement with the Nuclear Regulatory Commission under section 274 Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to 1 regulate the disposal-'of low-le' vel radioactive waste under such-agreement.
" Commission" means the Nuclear Regulatory Comission or .its duly authorized representatives.
i
" 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, comittee, or board established.in a Compact to administer such Compact. '1
" Emergency Access" means access to an operating non-Federal or regionalnot low-level radioactive waste disposal facility or facilities for
- e.x und a period d p 180 days, which is granted by NRC to a generator of low-level radioactive waste who has been denied the usa <o facilities.
" Extension of Emergency Access" means an extension of the access that had been previously}}